Ministers’ Deputies

Agenda

CM/Del/OJ/DH(2009)1072 Section 4.2 PUBLIC     21 December 2009

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1072nd meeting (DH), 1-3 December 2009

- Annotated Agenda[1]

- Decisions

Section 4.2

Public information version

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SECTION 4 - CASES RAISING S PECIFIC 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

- 9 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.

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.

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 No. 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 No. 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.

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.

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 (§ 62 of the Beshiri judgment).

• 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, AKKP 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.

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:

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.

            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.

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.

• 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.

37959/02           Xheraj, judgment of 29/07/2008, final on 01/12/2008

This case concerns a violation of the applicant’s right to a fair trial due to the quashing of a final judgment acquitting him on murder (violation of Article 6§1).

The applicant was convicted of murder in absentia on 27/11/1996, then acquitted on 14/12/1998 following his application for judicial review. The acquittal decision became final on 24/12/1998. On 02/10/1999, outside the statutory time-limit, the prosecutor attached to the Durrës Court of Appeal launched appeal proceedings against the acquittal decision, arguing in particular that the victim’s family had not been notified of it. The prosecutor’s appeal was successful and the applicant’s acquittal was overturned by the Criminal Division of the Supreme Court on 20/06/2001.

The applicant was notified of the quashing of the acquittal in 2002 when the Albanian authorities requested, on the basis of the Supreme Court’s decision of 20/06/2001, his extradition from Italy where he is imprisoned for offences unrelated to the present case (§26 of the judgment).

The European Court noted that the victim’s family had not involved themselves in the trial, although there were a number of options available which permitted their involvement. The European Court also noted that the prosecutor could have appealed the acquittal within the statutory time-limit. It concluded that the prosecutor’s appeal and subsequent quashing of the applicant’s acquittal did not strike a fair balance between the interests of the applicant and the effectiveness of the criminal justice system. The Supreme Court’s decision to quash the acquittal was therefore in violation of the principle of legal certainty.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. Noting however that the applicant continued to be subject to the consequences of the quashing of the decision of 14/12/1998, it considered that the most appropriate form of redress for this continuing situation would be for the applicant’s final acquittal of 14/12/1998 to be confirmed and his conviction in breach of the Convention to be erased with effect from that date (§82).

• It is recalled that information is still awaited on confirmation of the applicant’s final acquittal by the authorities and on the erasure of his conviction in breach of the Convention. Information is also expected on measures taken to withdraw the extradition request formulated by the Albanian authorities on the basis of the decision of 20/06/2001 adopted in breach of the Convention. 

General measures: The European Court noted (§§ 59-60) that the situation giving rise to the present violation could have been avoided had the prosecutor’s office lodged an ordinary appeal within the statutory ten-day time-limit provided for under Article 147§3 of the Code of Criminal Procedure, and that the arguments used by the prosecutor to justify the request for leave to appeal out of time were insufficient to justify challenging the finality of the judgment.

• Information provided by the Albanian authorities: The judgment of the European Court was translated and sent for publication to the official publication centre. After its publication a round table will be held with judges, prosecutors, representatives from Ministry of Justice and High Council of Justice to discuss measures to be taken.

• Assessment: The violation in the present case appears to stem from the approach of the prosecutor and its acceptance by the domestic courts. Information is needed on any measure taken or envisaged to avoid similar violations. Information is also awaited on the confirmation of the publication of the judgment and its dissemination to the competent authorities, as well as on the conclusions of the round table held with the authorities concerned (e.g. training of prosecutors). 

The Deputies, 1.             deplored the lack of information on measures adopted or envisaged to execute this judgment; 2.             urged the Albanian authorities to withdraw the extradition request and to ensure and to confirm, without further delay, the applicant's final acquittal and the erasure of his conviction from his criminal record in compliance with the European Court judgment; 3.             invited in this context the authorities to examine rapidly the possibilities of confirming the applicant’s acquittal through a new an appeal out of time; 4.             urged the authorities to provide the necessary information on individual and general measures adopted or envisaged; 5.             decided to resume consideration of these items at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual and general measures adopted or envisaged, and in the light of an assessment of the state of the execution of this judgment.

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

The case concerns the excessive length of two sets of civil proceedings, one of which lasted from 1993 to 20/11/2003 and the other from January 1997 to 13/04/2006 (violation of Article 6§1). 

In one of these sets of proceedings, the European Court observed that the case had been repeatedly referred back to lower jurisdictions for fresh examination. It then considered that by giving a number of contradictory decisions at several levels of jurisdiction, the Albanian authorities had demonstrated a shortcoming in the judicial system for which they were responsible (§145).

The Court also found that there was no remedy available to the applicant in respect of the delays in the proceedings (violation of Article 13).

This case also 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.

Furthermore the case 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 10 years until the joint venture was wound up in 2003 (violation of Article 6§1).

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 applicant was awarded just satisfaction in respect of pecuniary and non-pecuniary damages.

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

General measures:

            1) Violations of Articles 6§1 (length of proceedings) and 13: The European Court recalled that protracted length of proceedings due largely to repeated remittals ordered because of errors committed by the lower courts, revealed a serious deficiency in the judicial system. In the present case, the number of contradictory decisions at several levels of jurisdiction revealed a systemic judicial dysfunction which was the authorities’ responsibility (§145).

These aspects of the case present similarities to that of Gjonbocari (10508/02, section 4.2).

            2) 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 still 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.

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 still 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 still awaited on any measures taken or envisaged to avoid similar violations.

The Deputies, 1.             welcomed the extensive information provided by the Albanian authorities at the meeting with respect to general measures, covering most of the violations established by the European Court in these cases; 2.             noted the extensive information related to the measures planned to accelerate judicial proceedings and to improve the execution of judgments in civil cases, and encouraged the authorities to continue their efforts to find adequate solutions to these problems, in particular through further improved training programs; 3.             noted that the Constitutional Court had taken practical measures to avoid new exceptional situations of tied votes or when a proposal fails to attract a majority of votes, but encouraged nevertheless the further reflection on additional measures and the necessity of amendments to the law concerning the Constitutional Court; 4.             underlined the importance of ensuring, without further delay, the provision of domestic remedies in conformity with Article 13 of the European Convention in respect of excessive length of judicial proceedings, 5.             noted with interest in this connection the information provided concerning recent developments in the case-law of the Constitutional Court, according to which it considers itself competent to examine requests for redress in respect of excessively lengthy enforcement proceedings; 6.             encouraged the development of this case-law as well as, to the extent necessary, the prompt adoption of legislative measures, so as to ensure the provision of rapid acceleratory and / or compensatory redress in all situations in which parties have not obtained final judgments within a reasonable time; 7.             noted, concerning individual measures in the Gjonbocari case, that the Local Land Commission had now implemented the Supreme Court’s judgment as required by the judgment of the European Court, but recalled that the violations also related to the length of the proceedings and requested accordingly information on the measures taken further to accelerate the proceedings which were still pending; 8.             noted that the information provided merited careful examination and decided to resume consideration of these items at the latest at their 1086th meeting (June 2010) (DH), in the light of the results of this examination and possible further information to be provided on individual and general measures adopted or envisaged.

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

The case concerns the excessive length of one of three sets of proceedings concerning property claims brought by the applicants (violation of Article 6§1) as well as the absence of and effective remedy in this respect (violation of Article 13 together with Article 6§1). The proceedings in question, brought on 18/04/2000, were still pending and suspended when the European Court delivered its judgment (more than 7 years).

The European Court noted that even if the domestic courts had been aware that there were parallel, interrelated proceedings which might have been joined, they had failed to manage them properly (§§66-67).

Moreover, this was the first time that the European Court found that the Albanian legal system does not provide an effective remedy with respect to the right to a hearing within a reasonable time.

The case concerns, moreover, 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 having been confiscated during the communist period (violation of Article 6§1). In this respect, the European Court noted 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.

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

            1) Violation of Article 6§1 (excessive length of proceedings): The proceedings in question, brought on 18/04/2000, were pending and suspended when the European Court delivered its judgment.

• Information is awaited on the state of these proceedings and, if needed, on their acceleration.

            2) Violation of Article 6§1 (failure to enforce a final domestic decision): The European Court indicated that the most appropriate form of redress to ensure that the applicants are put as far as possible in the position in which they would have been had the requirements of Article 6 not been disregarded, the government should secure, by appropriate means and speedily, the enforcement of the judgment of 06/03/03 (§ 100-101).

• Information provided by the Albanian authorities (9/04/2009): The Supreme Court’s judgment of 06/03/2003 has been executed. As required by this judgment, the Land Commission considered the applicants’ claims in relation to the property and declared them inadmissible on 31/07/07.

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. According to the applicants, the property in question has been seized by a third party.

• Assessment: The Supreme Court’s judgment of 06/03/2003 has been enforced and the translation of the Land Commission decision has been provided.

• Confirmation of whether the decision of the Land Commission has become final would be useful.

General measures:

            1) Violation of Article 6§1 (excessive length of proceedings): The European Court noted that the judicial system failed properly to manage the multiplication of proceedings on the same issue whereas it would have been possible to join them (§§66-67).

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

With a view to finding an effective solution to the problem of parallel proceedings concerning the same case before 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 and provides them with their own website which gives individuals access to any information on dates of hearings, dates when decisions became final, the state of decisions, etc.

• Information is awaited on the impact of the measures taken so far as well as on further measures envisaged to accelerate domestic civil proceedings.

            2) Violation of Article 13 (lack of effective remedy in respect of the length of proceedings) This violation arose from the lack of any provision in national law which the applicants could have used to obtain redress for the excessive length of the proceedings. The European Court further observed that, even assuming that the Constitutiona l Court could in theory offer adequate redress in respect of the excessive length claims, the government had failed to produce any case in which the Constitutional Court had ruled on a complaint about length of proceedings. Accordingly, there was no evidence that a constitutional complaint under Article 131 of the Constitution could be regarded with a sufficient degree of certainty as constituting an effective remedy for the applicant’s complaint concerning the excessive length of the proceedings (§§ 80-81).

• Information is awaited on measures envisaged to offer to adequate redress in respect of excessive length of proceedings.

            3) Violation of Article 6§1 (failure to enforce a final domestic decision): This issue is considered in the case of Qufaj (54268/00) (section 4.2).

The Deputies, 1.             welcomed the extensive information provided by the Albanian authorities at the meeting with respect to general measures, covering most of the violations established by the European Court in these cases; 2.             noted the extensive information related to the measures planned to accelerate judicial proceedings and to improve the execution of judgments in civil cases, and encouraged the authorities to continue their efforts to find adequate solutions to these problems, in particular through further improved training programs; 3.             noted that the Constitutional Court had taken practical measures to avoid new exceptional situations of tied votes or when a proposal fails to attract a majority of votes, but encouraged nevertheless the further reflection on additional measures and the necessity of amendments to the law concerning the Constitutional Court; 4.             underlined the importance of ensuring, without further delay, the provision of domestic remedies in conformity with Article 13 of the European Convention in respect of excessive length of judicial proceedings, 5.             noted with interest in this connection the information provided concerning recent developments in the case-law of the Constitutional Court, according to which it considers itself competent to examine requests for redress in respect of excessively lengthy enforcement proceedings; 6.             encouraged the development of this case-law as well as, to the extent necessary, the prompt adoption of legislative measures, so as to ensure the provision of rapid acceleratory and / or compensatory redress in all situations in which parties have not obtained final judgments within a reasonable time; 7.             noted, concerning individual measures in the Gjonbocari case, that the Local Land Commission had now implemented the Supreme Court’s judgment as required by the judgment of the European Court, but recalled that the violations also related to the length of the proceedings and requested accordingly information on the measures taken further to accelerate the proceedings which were still pending; 8.             noted that the information provided merited careful examination and decided to resume consideration of these items at the latest at their 1086th meeting (June 2010) (DH), in the light of the results of this examination and possible further information to be provided on individual and general measures adopted or envisaged.

- 1 case against Andorra

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

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

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

However, in June 2004, at the request of the local authority of Escaldes-Engordany, Parliament decided to expropriate part of the property of each applicant on town-planning grounds.

The Constitutional Court, seised of an empara appeal by the applicants, held in a judgment of April 2005 that these expropriations would result in transforming the applicants’ property rights into an entitlement to compensation and would thus render their application for enforcement of the 28/05/2003 judgment pointless.

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

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

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

General measures:

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

- 8 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 provided by the Armenian authorities (1059th meeting, June 2009): Following the decision of the Court of Cassation of 25/02/2009, the application was re-submitted to the Court of Cassation on 30/03/2009. On 10/04/2009, the Court of Cassation delivered its decision, quashing the previous judgments of the Syunik District Court of First Instance of 19/06/2002, of the Criminal and Military Court of Appeal of 01/04/2003, and of the Court of Cassation of 08/05/2003, finding the applicant guilty. The Court of Cassation stated that the lawfully obtained evidence were insufficient to establish the guilt or innocence of the applicant, and on the basis of Article 419 of the Code of Criminal Procedure, transmitted the case to the First-instance Court of Syunik Marz for a fresh examination.

In its decision adopted at the same meeting, the Committee of Ministers stressed the need for a new trial respecting the requirements of Article 6 of the Convention and invited the Armenian authorities to keep the Committee of Ministers informed of the development of the proceedings.

Moreover, the exact wording of the relevant provisions of the Code of Criminal Procedure concerning the re-opening of domestic criminal proceedings – as currently in force and, as the case may be, as revised after the decision of the Constitutional Court – is awaited.

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. Finally, it would be useful to have confirmation that the judgment is included in the general training curriculum for police officers, prosecutors and judges (The Police Academy, The Prosecutors’ School, The Judicial School, etc).

32283/04           Meltex Ltd and Mesrop Movsesyan, judgment of 17/06/2008, final on 17/09/2008

The case concerns a violation of the applicant company’s freedom of expression on account of the refusal, by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting license (violation of Article 10).

The European Court concluded that there had been an interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression.

Individual measures: The Court awarded the applicant company just satisfaction in respect of non-pecuniary damage. The Committee of Ministers is currently examining the individual measures to be taken, by the domestic authorities pursuant to Armenia’s obligations under Article 46 of the Convention, in order to erase, as far as possible, the consequences of the violation.

At the 1043rd meeting (December 2008), the Permanent Representative of Armenia stated that in this case individual measures were very much linked to general measures as a new call for tender would not satisfy the requirements of the European Court’s case-law if the Law on radio and television were not first modified. Furthermore, he invoked certain technical difficulties linked to the transition to digital broadcasting (cf. DD(2008)679).

On 20/05/2009, the applicant company sent a letter (cf. DD(2009)307E distributed at the 1059th meeting) informing the Committee of Ministers that, on the basis of the European Court’s judgment and of Article 241 of the Code of Civil Procedure (which provides reopening), it lodged two appeals before the Court of Cassation to reopen the proceedings for judicial review in 2004 of the NTRC decisions at issue, but that these two appeals were dismissed on February 2009. The applicant company complains that no individual measure has been taken so far by the authorities following the judgment of the European Court.

• Information provided by the Armenian authorities (065th meeting, September 2009):  A new call for tenders, in which the applicant will be given the possibility to participate, is scheduled to take place in July 2010.

In the decision adopted at the same meeting, the Committee invited the respondent state to keep it informed of all progress made in preparing the call for tenders, as well as of any interim measures that they may envisage in favour of the applicant company. It also invited the Armenian authorities to provide full information on the remedies pursued by the applicant before the competent national judicial authorities. 

General measures: It appears from the European Court’s judgment that the Law on Television and Radio Broadcasting has been changed since the facts of the case. On 3/12/2003 the law was amended with effect on 31/01/2004 providing that: “...The National Commission shall give proper reasons for its decisions to select a licence-holder, refuse a licence or invalidate a licence”.

• Information provided by the Armenia authorities (1043rd and 1065th meetings, December 2008 and September 2009): The Law on Radio and Television has been amended to adapt it to the switch to digital transmission and to bring it into conformity with the Convention. The new amendments were adopted on 28/04/2009. The new provision regarding the obligation of the NTRC to justify its decisions reads as follows: “The National Television and Radio Commission shall give full reasons for its decisions to award, reject or revoke a broadcasting licence and ensure the transparency and accessibility of its decisions”. 

Furthermore, the judgment of the Court has been translated into Armenian and published in relevant official publications, both print and electronic, of the Republic of Armenia. The text is available, inter alia, on the official websites of the Ministry of Justice of Armenia, www.moj.am, and of the judiciary of the Republic of Armenia, www.court.am. The Armenian text of the judgment has also been sent to the National Television and Radio Commission and to the Court of Cassation of the Republic of Armenia.

                        - 5 cases concerning the right of freedom of assembly

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

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

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

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

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

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

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

Individual measures: In all these cases, except in the Ashughyan case where the applicant did not submit any claim, the European Court awarded just satisfaction to the applicants in respect of non-pecuniary damage. The applicants are no longer detained.

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

General measures: As regards the three violations found in these cases (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. 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.

Amendments to the law on conducting meetings, assemblies, rallies and demonstrations were adopted on 11/06/2008.

• Information is still awaited on the following points:

- possible provision of an effective and independent system for monitoring the enforcement of the law;

- penalties potentially applicable to participants in demonstrations,

- references of the publication of the European Court’s judgment 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.

No information has been given in this case since June 2008.

- 7 cases against Austria

34082/02           Rusu, judgment of 02/10/2008, final on 02/01/2009

The case concerns the violation of the right of the applicant, a Romanian national, to be informed promptly of the reasons for her arrest and detention (violation of Article 5§2).

On 25/02/2002 the applicant, who was travelling without a valid passport as hers had been stolen, was returned to Austria by the Hungarian border police and promptly detained. The Neusiedl/See District Administrative Authority noted in the detention order that she had entered Austria illegally, that she lacked sufficient means to stay in Austria and that, if released, she might abscond. This decision was issued to the applicant in German along with two information sheets in Romanian. On 7/03/2002 an interpreter translated the decision into Romanian in the presence of the applicant for the purpose of issuing an expulsion order against her. She was expelled to Romania on 22/03/2002.

The European Court noted that the information given to the applicant in Romanian on the day of her arrest had been incorrect and that it took ten days before the applicant was informed of the specific reasons and correct legal grounds for her detention, namely when she was questioned in the presence of an interpreter who translated the decision of 25/02/2002 for her.

The case also concerns the arbitrary character of the applicant’s detention pending expulsion, having regard to the incompleteness of the grounds relied on by the district administrative authority (violation of Article 5§1f). The Court further found it striking that the Austrian authorities had paid no attention to the applicant’s situation: she had not apparently intended to stay illegally in Austria or evade expulsion proceedings. It emphasised that to detain an individual is such a serious measure that it is automatically arbitrary unless justified as a measure of last resort.

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

• Assessment: No further individual measure seems necessary.

General measures:

1) Violation of Article 5§2: The European Court noted that the information sheets issued to the applicant in Romanian on the day of her arrest had not contained any specific factual information concerning her detention or arrest and had referred to an out-of-date Aliens Act (see §§ 38-42 of the judgment).

• Clarification is needed on how the Austrian authorities ensure prompt and correct information as to the reasons for the arrest or detention of foreigners, in particular in situations that are not covered by the standard information sheets.

2) Violation of Article 5§1(f): The violation resulted from the Austrian authorities’ negligence in failing to take account of the specific situation of the applicant when ordering her detention with a view to expulsion. Section 66 of the then-applicable Aliens Act 1997 provided less stringent measures, such as residence orders in accommodation designated by the authorities (see also §27 of the judgment).

• Information is awaited on the legal situation and practice of less intrusive measures than detention, and, if necessary, on measures envisaged or taken in this respect to avoid new, similar violations.

3) Publication and dissemination: The European Court’s judgment was published in the Newsletter of the Austrian Institute for Human Rights (NL 2008, p. 276 (NL 08/5/09), available online at http://www.menschenrechte.ac.at/docs/08_5/08_5_09). On 30/10/2008 and 28/07/2009 it was sent out widely to the Constitutional Court, the Administrative Court, the Supreme Court, all Federal Ministries, the Human Rights Advisory Council, the Parliament, the Asylum Court, the Independent Administrative Panels and all Human Rights Co-ordinators in order to avoid similar violations.

                        - 2 cases concerning freedom of religion

40825/98          Religionsgemeinschaft der Zeugen Jehovas and others, judgment of 31/07/2008, final on 31/10/2008

76581/01          Verein der Freunde der Christengemeinschaft and others, judgment of 26/02/2009, final on 26/05/2009

The cases concern the unnecessary restriction of the applicants' right to freedom of religion due to a discriminatory decision to confer upon the applicant communities an inferior grade of legal personality.

In both cases the first applicants are the religious communities of Jehovah’s Witnesses in Austriaand Verein der Freunde der Christengemeinschaft, respectively: the four other applicants in each case are their respective members who, in 1978 and 1995, made a request to the Federal Minister for Education and Arts, under the 1874 Legal Recognition of Religious Societies Act, to have the Jehovah’s Witnesses recognised as a religious society and granted legal personality.

As regards the Jehovah’s Witnesses, the Ministry initially found that the law at issue did not confer upon the applicants any entitlement to a formal decision. In 1997 it dismissed their request, finding that the Jehovah’s Witnesses could not be recognised as a religious society because their internal organisation was unclear and they had a negative attitude to the state and its institutions, demonstrated in particular by their refusal to do military service, to participate in local community life and elections or to have certain types of medical treatment such as blood transfusions. The Constitutional Court subsequently quashed that decision.

On 20/07/1998, an Act having been passed in January 1998 on the Legal Status of Registered Religious Communities, the Jehovah’s Witnesses and Christengemeinschaft were granted legal personality as religious communities. From that point, they had legal standing before the Austrian courts and authorities and were allowed to acquire and manage assets in their own name, establish places of worship and disseminate their beliefs.

The applicants in both cases nonetheless brought a second set of proceedings, still requesting recognition as a religious society. Their requests were dismissed on 1/12/1998 as the Federal Minister found that, pursuant to Section 11(1) of the 1998 Religious Communities Act, a religious community could only be registered as a religious society if it had already existed for a minimum of ten years. The applicants’ complaints against these decisions were ultimately dismissed in March 2001 (Christengemeinschaft) and October 2004 (Jehovah’s Witnesses) on the ground that a ten-year qualifying period was in conformity with the Constitution.

The European Court noted concerning the Jehovah’s Witnesses that the period between the submission of the applicants’ request for recognition as a religious society and the granting of legal personality was substantial: some 20 years, and that during that period the Jehovah’s Witnesses had had no legal personality in Austria. The Court concluded that the interference had gone beyond any “necessary” restriction on the applicants’ freedom of religion (violation of Article 9).

The Court accepted as regards both cases that making a religious community wait for ten years before granting it the status of a religious society could be necessary in exceptional circumstances such as in the case of newly established and unknown religious groups. However, it hardly appeared justified in respect of religious groups which were well established both nationally and internationally and therefore familiar to the relevant authorities, as was the case with the Jehovah’s Witnesses and Christengemeinschaft. The authorities should have been able to verify much more quickly whether the requirements of the relevant legislation had been fulfilled, as they had done in respect of The Coptic Orthodox Church. Accordingly, the Court concluded that that difference in treatment had not been based on any “objective and reasonable justification”(violations of Article 14 taken in conjunction with Article 9).

Furthermore, the Court found that in the second set of proceedings lodged by the Jehovah’s Witnesses, which had lasted almost five years and 11 months, there had been two periods of inactivity, one of which had not been explained by the government (violation of Article 6§1).

Individual measures: In both cases the European Court awarded just satisfaction in respect of non-pecuniary damage. It rejected the Jehovah’s Witnesses’ claim for pecuniary damage as there was no causal link between the violation found and the alleged damage.

The European Court, having limited its scope of examination to the Ministry’s decision refusing recognition of the first applicants as religious societies exclusively for non-compliance with the 10-year waiting period under Section 11(1) of the 1998 Religious Communities Act, found this reason to be discriminatory.

It noted that it could not speculate on the outcome of the proceedings, as in any event, the first applicants would not have been automatically entitled to recognition as a religious society had the Austrian authorities not relied on the discriminatory ground of the 10-year waiting period, because there were various other requirements under the applicable law (§ 130 of the judgment concerning the Jehovah’s Witnesses). In July 2008, the 10-year waiting period expired as regards the first applicants. They may lodge a new request for recognition as a religious society.

On 7/05/2009 the Jehovah’s Witnesses’ new request was granted and they were recognised as a religious society by a decree (Federal Gazette II, 2009/139). Furthermore, the domestic proceedings concerning the Jehovah’s Witnesses which the Court had found to be excessively long are closed.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violation of Article 9: The European Court found a violation of the right to freedom of religion because of the lapse of time before the Jehovah’s Witnesses were granted legal personality in 1998. The 1998 Religious Communities Act provides the registration of religious groups as religious communities and grants them a legal status.

• Assessment: The violation appears to be an isolated incident resulting from the particular circumstances of the case. No further general measure seems necessary in this respect.

            2) Violations of Article 9 in conjunction with Article 14: The Court found the 10-years waiting period provided by Section 11(1) of the 1998 Religious Communities Act to be unjustified in respect of nationally and internationally well-established religious groups for which a considerably shorter period would be sufficient to verify whether they conform with the other applicable requirements. The recognition in 2003 of The Coptic Orthodox Church, which had also been registered as a religious community in 1998, demonstrates that the 10-year waiting period is not applied in all cases by the Austrian authorities.

The European Court’s judgment concerning the Jehovah’s Witnesses was published in the Newsletter of the Austrian Institute for Human Rights (NL 2008, p. 232 (NL 08/4/15), available online at http://www.menschenrechte.ac.at/docs/08_4/08_4_15) and in Österreichische Juristenzeitung (ÖJZ 2008, p.865). On 17/03/2009 both judgments were widely disseminated to Parliament, to Human Rights Coordinators, all Federal Ministries, the Constitutional Court, the Administrative Court and the Supreme Court. Moreover, to avoid similar violations, the ministries were requested to take these judgments into consideration when applying the law and/or when drafting further legislative proposals.

• Information would be useful on measures taken or envisaged to avoid new, similar violations, in particular whether any legislative changes are envisaged.

            3) Violation of Article 6§1: The case concerning the Jehovah’s Witnesses presents similarities to the Ortner group as regards the excessive length of proceedings before administrative authorities and courts (next examination, 1086th meeting (June 2010).

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 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 applicant company submitted no claim in respect of non-pecuniary damage.

The Austrian authorities state that, on 23/03/2001, the Ministry of Justice sent the case file, including the disk on which the electronic data in question had been saved, to the Naples Public Prosecutor’s Office following a request for legal assistance.

• Bilateral contacts are under way to clarify whether further individual measures are necessary.

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). On 29/01/2008 it was also sent to the Ministry of Justice, the Ministry of the Interior, the Salzburg Independent Administrative Panel and the Constitutional Service of the Federal Chancellery.

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

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.

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 (Article 363b(3), in fine, of the Code of Criminal Procedure).

• Information submitted by the applicant’s counsel and the Austrian authorities: The applicant complained that despite the European Court’s judgment in his favour, Austrian law offered no restitutio in integrum with regard to the slur on his reputation.

The Austrian authorities are of the view that the European Court’s award in respect of non-pecuniary damage provided the applicant sufficient just satisfaction. Furthermore, the Supreme Court had correctly rejected the applicant’s request for re-opening of the proceedings as the state’s duty under the Convention in executing a judgment could not be extended to the degree of violating the principle of reformatio in peius to the detriment of an acquitted person.

• Bilateral contacts are underway to clarify whether further individual measures are necessary.

General measures:

1) Publication and dissemination: 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. Furthermore, on 17/08/2007 it was disseminated to all ministries and human rights coordinators, the Parliament, the Supreme Court, the Constitutional Court and the Administrative Court.

2) Training and awareness raising measures: A distinct 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 2002 and 2009 the Austrian Ministry of Justice provided regular training for judges on the Convention and especially the European Court’s case-law relating to the interplay of Articles 8 and 10. It is planned to continue these training courses, as well as to make a study visit to the European Court.

• Taking into account the circumstances and the type of violation in this case, the necessity of further general measures is closely linked to the assessment on the need for further individual measures.

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

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

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

• Assessment: No further individual measure seems necessary.

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

On 23/01/2007 it was sent to the Constitutional Service of the Federal Chancellery, the Vienna Municipality and the Appeals Board of the Vienna Municipality. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS).

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

                       - Case concerning the lack of oral hearing

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

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

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

Individual measures:

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

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

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

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

- 12 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, in the Organised Crime Unit temporary detention facility (OCU) (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.

Finally, the case concerns a breach to 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.

As regards the absence of an effective investigation into the applicant's allegations of ill-treatment, the Court noted in particular that:

-           the applicant was not able to bring his claim of ill-treatment immediately to the attention of the authorities because he was not allowed to see his lawyer for three days after the facts;

-           the request for medical examination was not handled with sufficient diligence: no action was taken in this regard until the lawyer, five days after having made the request for medical examination, complained to the prosecutor about the failure to arrange for it; it took two more days for the medical examination to be carried out;

-           the investigatory authorities limited themselves to studying the forensic report and questioning four police officers who had been in contact with the applicant in the temporary detention facility; no other witnesses were questioned;

-           the investigatory authorities, when reaching their decision not to institute criminal proceedings, totally failed to take into account the unambiguous statement of the warden of the OCU's temporary detention facility who testified that the applicant had been in good health upon his arrival in the facility.  

As regards the breach of the right to an effective remedy, the Court observed that the Nasimi District Court which on 18/02/2004 examined the applicant's complaint concerning the unlawfulness of the refusal by the Chief Prosecutor's Office's to institute criminal proceedings and then the Court of Appeal on 17/03/2004 simply endorsed the investigator's opinion that the applicant's claim was unsubstantiated without attempting to assess the facts of the case independently and, in essence, committed exactly the same flaws and omissions as those committed by the investigator during the criminal investigation.

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, 1028th meeting -June 2008, and 15/10/2008): Following the judgment of the European Court of Human Rights, 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.

No further information has been provided since October 2008.

General measures

• Information provided by the Azerbaijani authorities (letters of 12/10/2007, 1028th meeting -June 2008 and 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.

No further information has been provided since October 2008.

The Deputies, 1.             as regards individual measures, regretted that nearly one year after the investigation in Mr. Mammadov’s complaint for ill‑treatment has been resumed, no information on the developments of this investigation was made available to the Committee of Ministers and called upon the Azerbaijani authorities to provide detailed information on this issue; 2.             took note, as regards general measures, of the information concerning the draft law on the rights and freedoms of individuals kept in detention, which remains to be assessed, and invited the Azerbaijani authorities and the Secretariat to keep the Committee informed of any modification of this draft, in particular concerning access to a lawyer, medical supervision, contacts with relatives and the remedies available to complain of violations of the rights provided for in this draft law; 3.             took note of the information provided at the meeting by the Azerbaijani delegation and recalled that detailed information on the legislative and regulatory provisions applicable in case of allegations of ill-treatment, including in police custody, is awaited as well as concrete examples of implementation of these provisions; 4.             decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual and general measures.

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.

• Information is awaited on the results of the re-examination of the case by the Criminal Chamber of the Supreme Court.

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 has been awaited, since the first examination of the case at the 1035th meeting (September 2008), on measures taken or envisaged to avoid similar violations.

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

The case concerns a breach of the applicants’ right to freedom of expression on account of their conviction and sentencing to 5 months’ imprisonment for defamation and insult by a judgment of the Yasamal District Court of 20/05/2003, upheld on 16/07/2003 by the Court of Appeal and on 2/03/2004 by the Supreme Court (violation of Article 10).

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

The European Court found that, although the interference with the applicants' right to freedom of expression may have been justified, the criminal sanction imposed was disproportionate to the legitimate aim pursued by the applicants' conviction for insult and defamation. By sentencing the applicants to imprisonment, the domestic courts contravened the principle that the press must be able to perform the role of a public watchdog in a democratic society.

Individual measures: The applicants were sentenced to 5 months’ imprisonment but were exempted from serving their sentences in application of the Resolution of the Parliament of Azerbaijan on Amnesty in Connection with the Anniversary of the Victory over Fascism in World War II. The Court awarded the applicants just satisfaction in respect of non-pecuniary damage. Lastly, it appears from the Court’s judgment (cf. §20) that a record of the sentence is not included in their criminal records.

• Assessment: No further measure seems necessary.

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

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

• Information is awaited on the translation of the European Court’s judgment and its publication and dissemination to tribunals dealing with cases regarding freedom of expression as well as on the modifications of the Criminal Code which are necessary following this judgment.

5548/03            Hajiyev, judgment of 16/11/2006, final on 16/02/2007

The case concerns a violation of the applicant's right of access to court (violation of Article 6§1).

The applicant was sentenced to 15 year's imprisonment by a Supreme Court judgment which was final and not subject to appeal at the time of his conviction. After the adoption of a new Code of Criminal Procedure in 2000, he was unable to benefit from the appeal procedures which should have applied to his case according to the provisions of the transitional Law, because of the absence of a clear domestic judicial interpretation of this transitional Law.

Individual measures: On 10/05/2004 the applicant was pardoned and released from prison under a presidential pardon. On 21/05/2004, the Plenary Chamber of the Supreme Court upheld the applicant's request for reduction of his sentence. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

The applicant states in a letter of 16/05/2007 that on 3/03/2007, he appealed against his conviction under Article 386 of the Code of Criminal Procedure which provides that when the deadline for lodging an appeal has been missed for a good reason, persons listed in Article 383 of this Code have a right to lodge, with the first instance court which delivered the judgment, a petition for restoration of the period for appeal.

• Information provided by the Azerbaijani authorities (letter of 31/03/2009): The Court of Appeal of the Republic of Azerbaijan examined the applicant’s appeals and dismissed the applicant petition for restoration of the missed period in two decisions of 23 and 25/05/2007.

• Information provided by the Azerbaijani authorities (letter of 8/09/09) : The European Court’s judgment was transmitted to the Plenum of the Supreme Court on 26/02/2007. The result of these proceedings is not mentioned in the Azerbaijani authorities’ letter.

• Contacts are underway with the Azerbaijani authorities to clarify certain aspects of this information.

General measures: The European Court’s judgment has been translated into Azerbaijani and published in Qanunçuluq, the official gazette of the Ministry of Justice (issue No. 3, March 2007) and in the Azerbaycan Prokurorlugu, the official gazette of the General Prosecutor’s Office (issue No 2, 2007). Moreover the judgment was disseminated among judges and other legal professionals and included in the curricula for the training of judges and candidates for the bench.

• Information would be welcomed on measures which could be taken, such as a circular letter to draw the attention of tribunals/courts to their obligation to take formal decisions within the time-limit provided by law on requests submitted to them.

                        - 4 cases concerning the right of freedom of association

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

28736/05           Aliyev and others, judgment of 18/12/2008, final on 18/03/2009

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 a violation of the applicants’ right of freedom of association (violations of Article 11) due to the repeated failure of the Ministry of Justice to decide definitively, 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 underlined 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 (the Law of 1996) 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.

The case of Aliyev differs from the other cases in that several months after the applicants had made their request for state registration, a new law came into force (the Law of 2004). The domestic courts, when deciding on the appeal lodged by the applicants, applied the new law and dismissed their appeal on the ground that the Ministry of Justice had send a reply to the applicants within the time limit provided by the new law. The Court noted that neither the former law nor this new law provided any retrospective effect. The Court stated that, by concluding as they did, the domestic courts had implicitly absolved the Ministry of Justice from responsibility for breaches of procedural requirements of the previous law, which applied to the fact of the case, and that such a finding was arbitrary and incompatible with the interests of justice and legal certainty (§36 to 41 of the judgment).

Individual measures: In all these cases – except in the case of Aliyev as the applicants submitted no claim – 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 Vunerable Residents of Baku” was registered on 18/02/2005;

Mr. Ismayilov’s association “Humanity and environment”, was finally registered on 3/09/2008;

Mrs Nasibova’s association, “The Journalists’ Enquiry Centre” was eventually registered on 30/10/2008.

It is unclear from the Court’s judgment in the case of Aliyev whether the proceedings for registration of the applicant’s association “The Azerbaijani Lawyers’ Forum” have ended.

• Information is awaited on the state of progress in registering the applicant’s association in the case of Aliyev.

General measures: The provisions regarding “state registration and the state register of legal entities” were modified in December 2003, the new provisions (the Law of 2004) entering into force on 9/01/2004.

Article 8, paragraph 1, of the present law provides that: “State registration of non-profit organisations, as well as representations and branches of foreign non-commercial organisations that wish to obtain a legal status shall be carried out no later than 40 days. “

Paragraphs 2 and 3 of Article 8 provide an extension of this time-limit in exceptional cases, when it is necessary to conduct additional inquiry or to correct shortcomings in the documents submitted.

Paragraph 4 of Article 8 provides that: “After the examination of application or no later than 10 days after the removal of shortcomings, the relevant executive body of the Republic of Azerbaijan shall issue to the applicant a certificate of state registration or will inform the applicant in a written form of the rejection of state registration (with an explanation and indication of legislative provisions on which the rejection was based).” 

Finally paragraph 5 of Article 8 provides that: “If within the period set out in the present Article, a reply rejecting state registration is not given, the organisation is deemed to be registered by the state. In this case, the relevant executive body of the Republic of Azerbaijan shall issue to the applicant a certificate of state registration no later than within 10 days”.

In reply to a request for more detailed information, the Azerbaijani authorities explained that the term “the period set out in the present article” mentioned in Article 8§5 means 40 days and that the starting point of “the period set out in the present article” is the date upon which the applicants hand over the registration documents to the office of the Ministry of Justice. If the documents are sent by post, the starting point is the receipt by the Ministry of Justice of the documents.

The judgment of the European Court in the case of Ramazanova has been translated into Azerbaijani, 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. 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. These measures of publication and dissemination will guide the administration and judges in their application of the law.

• Assessment: important progress has been achieved in ensuring a new legal situation in conformity with the Convention’s requirements with the adoption of the law of 2004, the clarification given by the government as to its scope and the efforts made to draw the attention of the authorities concerned to the requirements of the Convention as developed in the case-law of the European Court, so as to ensure their direct effect in the Azerbaijani law. The progress achieved in taking individual measures is also an important sign of this positive evolution. However, confirmation is awaited that the problem raised by the government before the European Court regarding the heavy workload of the Ministry of Justice has been solved. In addition, the specficl issue relating to the temporal scope of the new law raised in the case of Aliyev require special attention

• Information is awaited as to whether requests for registration introduced prior to the 2004 Law are still pending before the Ministry of Justice; publication and dissemination of the European Court’s judgment, together with a circular drawing judges’ attention to §§ 36 to 40 of the judgment, is awaited.

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

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

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

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

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

In the case of Efendiyeva, a final judgment of 09/09/1994 ordering the applicant’s reinstatement in her post as Medical Director of the Republican Maternity Hospital and payment of compensation for wrongful dismissal was not enforced until 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.

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.

It is recalled that information on measures envisaged by the authorities following the Court’s judgment have been awaited since the first examination of the case at the 1028th meeting (June 2008).

In this context, information on the number of similar cases pending before domestic courts would be very useful. Lastly, examples of direct application of the case-law of the European Court by domestic courts would be welcome.

- 37 cases against Belgium

20656/03           Loncke, judgment of 25/09/2007, final on 25/12/2007

This case concerns an infringement of the applicant's right of access to a court, in the context of tax proceedings constituting a “criminal charge” against him (violation of Article 6§1). In 1999, the Ghent Court of Appeal declared the applicant’s appeal inadmissible on the basis of Article 92, paragraph 2 of the, VAT Code, as he had not paid the sums he had been ordered to pay at first instance, i.e. more than 3,7 million euros.

In view of the specific circumstances of the case, including the obvious disproportion between the very large amounts the applicant had been expected to pay and his financial situation, the European Court held that that the inadmissibility decision had been a disproportionate measure with respect to the protection of the Tax administration’s interests and that the applicant’s effective access to the Court of Appeal had been hindered on that account.

Individual measures: in its examination of the just satisfaction to be granted to the applicant, the European Court held that it could not speculate on the possible outcome of the proceedings in the absence of the violation of the Convention.

• Information appears necessary as to whether it is possible for the applicant to have his case re-examined in the light of the violation of the Convention.

General measures: the European Court did not call Article 92, paragraph 2 of the VAT Code into question, but its implementation by the judge in the specific circumstances of the case. According to this provision, modified in 1999 (the modifications being inapplicable to the facts of this case), if an appeal is lodged against a judgment rejecting the legal action brought by the debtor, the tax administration (The receiver of VAT) may request the debtor to pay all or part of the sums due, or to provide surety. The administration shall take account of the information in the file, in particular the debtor’s financial situation. The Court seised of an appeal may declare it inadmissible if the sums requested have not been paid or if surety has not been given, within a two month delay, except where the Court holds that the request made by the administration is not well founded.

• Information is awaited on measures taken or envisaged to ensure that Article 92, paragraph 2, of the VAT Code is applied in accordance with the Convention as interpreted in this judgment. In any event, it appears necessary to publish the judgment and disseminate it to the courts and tax administrations concerned, possibly with a circular letter.

58081/00+         Leschiutta and Fraccaro, judgment of 17/07/2008, final on 17/10/2008

This case concerns an infringement of the right of two fathers (acting in their own name and on their sons’ behalf) to respect for their family life (violation of Article 8). Italian nationals living in Italy, each of the applicants had a child with the same woman, A.M.. They had been awarded custody of their respective children by the Italian courts in 1994 and 1998. Shortly afterwards A.M. took the children to live with her in Belgium.

The European Court found that the Belgian authorities had omitted to take all the steps that could reasonably have been required of them to ensure the children’s return to their respective fathers.

A.M. was sentenced to terms of imprisonment by both the Italian and the Belgian courts for abducting her sons.

Individual measure: in June 2000, the fathers and children returned to Italy. Elia, Mr. Leschiutta’s son, has come of age (he was born in 1987). Andrea, Mr. Fraccaro’s son, is minor (he was born in 1995). In March 2008, proceedings concerning the final award of custody of Andrea were pending before the Venice Children’s Court. The last hearing had been postponed on the parent’s request, in view of the fact that the child expressed the will to spend the school year with his mother.

The European Court added that, according to the information provided by both fathers, the children are finally back in Italy. Andrea still lives with his mother and is apparently studying at school. Under the supervision of the Venice Children’s Court and with the father’s approval, the mother undertook to take him to Belgium only for short holidays (§ 8 of the judgment).

• Assessment: No measure would appear necessary concerning Elia, as he has come of age. At this stage, Andrea’s parents appear to have reached an agreement on his situation and, according to the information available, the question of his custody is apparently pending before the Italian courts. Bilateral contacts are under way in this respect.

General measures: in finding the violation, the European Court first noted that there had only been one serious (although immediate) attempt to execute the decisions awarding custody to the fathers. Between December 1998 and September 1999, apart from a report of the social authorities and two meetings between fathers and sons, no concrete action was taken with a view to reuniting the applicants. Furthermore, the European Court expressed doubts with regard to the decision-making process which led the Belgian Courts (in September and December 1999, final in June 2000) to award the custody of both children to the mother. The Court in particular underlined that instead of ensuring a prompt and final return of the children to their fathers in whom the legitimate custody right was vested, the public authorities considered that the tension between the parents constituted a danger which should be spared the children, by taking them away. Furthermore, no measure was taken by the authorities to ensure conditions necessary for an urgent execution of the decisions at issue.

• Information is awaited on measures taken or envisaged to avoid new, similar violations. In any event, the publication of the European Court’s judgment and its dissemination to the competent authorities appear necessary.

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

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

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

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

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

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

General measures:

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

The European Court noted (§13), on the basis of different national and international sources, including the observations of the UN Human Rights Committee, the 2004 Report of the Federal Ombudsmen and the report of the CPT of 2005, that this kind of behaviour is far from being limited to the present case.

The Aliens Office has developed a real “practice” of transferring aliens who are subject to orders of repatriation, from the detention centre where they were detained pending their transfer to the transit zone of the airport, following the delivery of a decision by a judicial authority releasing them.

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

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

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

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

13178/03           Mubilanzila Mayeka and Kaniki Mitunga, judgment of 12/10/2006, final on 12/01/2007[2]

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.

48386/99          Cottin, judgment of 02/06/2005, final on 02/09/2005[3]

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.

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

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

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

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

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

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

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

                       - 5 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 www.just.fgov.be (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.

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

                       - 24 cases of length of judicial proceedings and lack of an effective remedy

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

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

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

44826/05           Bell, judgment of 04/11/2008, final on 06/04/2009

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

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

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

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

2115/04            Depauw, judgment of 10/06/2008, final on 10/09/2008

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

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

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

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

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

35327/05           Leonardi, judgment of 03/02/2009, final on 03/05/2009

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

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

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

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

44807/06           Poelmans, judgment of 03/02/2009, final on 03/05/2009

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

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

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

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

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

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

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

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

Individual measures:

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

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

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

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

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

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

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

General measures: The Belgian authorities state that there is no structurel problem in Belgium with regard to the length of proceedings, be they civil or criminal. However, it has been found that the length of certain criminal proceedings poses problems, both at the preliminary stage of proceedings (this question is being examined separately by the Committee, see the case of Stratégies et Communications and Dumoulin against Belgium, 37370/97, in Section 6.2) and before the Courts when deciding on the merits.

Brussels Courts nevertheless constitute a specific problem. Concerning the Brussels first instance courts, the authorities indicated that the excessive length of proceedings is in particular the result of the difficulty of recruiting magistrates, a problem related to the conditions of use of languages in the judicial field. Concerning the Brussels Court of Appeal, the question of the length of proceedings has been examined separately by the Committee – see the case of Oval S.P.R.L. against Belgium and other similar cases, 49794/99, in Section 6.2).

1) Measures to avoid excessive length of judicial proceedings

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

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

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

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

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

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

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

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

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

            a) In civil justice: in its decision on the admissibility in the case of Depauw against Belgium (decision of 15/05/2007), the European Court held that since the 28/03/2007, there exists an action for damages which constitutes a remedy to complain about the excessive length of civil proceedings. This remedy relies on case-law having a sufficient degree of legal certainty (judgment of the Court of cassation of 28/09/2006). Furthermore, it is recalled that the Law of 21/04/2007 amending the Judicial Code with a view to reducing the judicial backlog contains certain provisions enabling a request for acceleration of civil proceedings.

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

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

- 6 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 Annexe 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 awarded the applicants just satisfaction in respect of the non-pecuniary damage sustained. It also 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).

It may 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 Annexe to an adequate facility at latest by 31/12/2005.”

• Information provided by the authorities (11/05/2009 and 12/10/2009): On 25/02/2009, the Municipal Court of Zenica ordered that Mr Marinić should be held in the Psychiatric Hospital in Sokolac. However, Mr Marinić is still held in the Zenica Prison Forensic Psychiatric Annexe as the psychiatric hospitals in Sokolac and Fojnica refused to accommodate him for lack of facilities. His current medical condition is satisfactory.

• Assessment: A domestic court having ordered the compulsory confinement of Mr Marinić in proceedings prescribed by law, no further individual measure is required in this regard.

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 Annexe and a state-level forensic psychiatric institution were also discussed in the CPT reports (see e.g. CPT/Inf(2007) 34, pp. 9-10, 33-35, CPT/Inf(2009)25, p. 45-46).

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, 06/03/2009 and 12/10/2009): 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. Eight out of ten cantons submitted the requested information. An action plan is currently being drafted to be submitted to the Federation government for adoption.

• 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 case, while all social care centres in the Federation took note on the violation found in the 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. 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).

It is also noted that the Constitutional Court of Bosnia and Herzegovina (“CC BIH”) found in its decision of 13/12/2007 that legislative and administrative measures had not been taken as ordered by the HRC decision of 10/01/2003 (see above).

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, application No. CH/03/12994).

On 31/08/2009, the Commissioner for Human Rights issued a statement saying that flawed enforcement of court decisions undermines the trust in state justice in certain countries, including Bosnia and Herzegovina.

2) Measures taken and under way: The Bosnian authorities provided information on 06/06/2008, 28/07/2008, 15/10/2008, 09/04/2009, 05/10/2009 and 15/10/2009.

A. Action plan: The authorities reported that on 16/07/2008 the Federation government adopted an action plan to deal with similar cases. 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.

B. Legislative measures: These amendments were drafted in February 2009 and provided 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.

However, on 28/07/2009, the Federation Parliament did not adopt the proposed amendments and recommended that this issue should be resolved at the state level.

C. Statistical data: On 28/08/2009, on the basis of its records, the Federation Fund made an assessment of the number of pensioners who obtained their pension before 30/04/1992 and whose pensions are paid by the RS Fund on the territory of the Federation, as well as on the related costs. According to this assessment, there are 5417 such pensioners. As of the assessment date, a total of 3 785 of these would be entitled to the payment of the difference in respect of the pension they would receive in the Federation, while 1632 pensioners would not be so entitled as their pensions payable from the RS Fund are higher than those payable by the Federation Fund. The payment of the difference for 3785 such pensioners would cost the Federation Fund around 3.8 million BAM per year.

The Federation Fund nevertheless stressed that there was no reliable or comprehensive information on the number of pensioners who have returned to the Federation since the armed conflict. It was noted that the RS had been progressively requesting the transfer of 38 000 pensioners on this ground from the RS Fund to the Federation Fund. The RS Fund also brought an action against the Federation Fund in this respect. The proceedings are currently pending before the Federation Constitutional Court.

The transfer of those 38 000 pensioners to the Federation Fund would cost it around 26.6 million BAM per year. Having in mind the difficult financial situation of the Federation Fund, it proposed that the additional costs in respect of the pensioners returnees from the RS to the Federation should be borne by the Federation Budget.

D. Ongoing negotiations between the entities: 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. The RS resigned from this agreement although it continued to pay out pensions in compliance with its provisions. A meeting was held under the auspices of the Ministry of Civil Affairs of Bosnia and Herzegovina, including representatives of the relevant ministries and pension funds of both Entities, following which 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. On 18/02/2009, the RS Ministry of Labour forwarded the requested information on pensioners whose pensions were paid by the RS Fund on the territory of the Federation and who obtained their pensions before 30/04/1992.

No agreement has been reached so far and the Ministry of Civil Affairs of Bosnia and Herzegovina has taken no steps in the matter since the information from the RS was received. 

E. Enforcement in other similar cases: According to the Federation authorities, the HRC and the CC BIH rendered 4 similar decisions involving 19 individual cases. The Federation authorities confirmed that the difference in pension has been paid to 17 individuals.

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.

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 HRC decision amounts to a criminal offence. In co-operation with the Government Agent of Bosnia and Herzegovina, the Secretariat organised a round table in Sarajevo on 11/06/2009 with particular emphasis on enhancing compliance with the domestic judgments (see details in Jeličić, 41183/02, Section 4.2).

However, the authorities stressed in this regard that the enforcement of the present judgment would require legislative measures, where criminal prosecution cannot be envisaged.

• Assessment: It appears that the Federation authorities have taken individual measures to enforce similar HRC and CC BIH decisions in other similar cases. However, the HRC decision of 10/01/2003 also ordered the Federation authorities to take all necessary legislative and administrative measures to remedy in general the discrimination in pension rights in respect of pensioners having earned their pension before 30/04/1992 and who returned to the Federation after the armed conflict. It is noted that the Federation Parliament did not adopt the proposed legislative amendments, thus failing to eliminate discrimination from the pension legislation in disregard of the HRC order to that effect. Considering the number of potential applicants, which the European Court perceived as a “threat to the future effectiveness of the Convention machinery”,  it appears necessary for the authorities of the respondent state to continue their efforts to find an appropriate solution to eliminate the “shortcoming affecting a whole class of citizens (namely, pensioners living in the Federation who were internally displaced in the RS during the armed conflict)”.

• Information is thus awaited on further progress and a calendar for implementing the measures envisaged to eliminate discrimination in the pension legislation as ordered by the HRC decision, including any new measure envisaged following the failure by the Federation Parliament to adopt the legislative amendments.  Information would be also appreciated on the nature and status of the proceedings initiated by the RS Fund against the Federation Fund before the Federation Constitutional Court.

• Information is also awaited on any progress in implementing the conclusions adopted at the round table of 11/06/2009 and on any measure taken or envisaged to ensure that the HRC decisions are enforced.

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.

- 4 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

28971/05           Kudić, judgment of 09/12/2008, final on 09/03/2009

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

38945/05           Pralica, judgment of 27/01/2009, final on 27/04/2009

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. Judicial decisions rendered between1993 and 2001in 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. All domestic decisions ordering release of foreign-currency accounts in the present cases have been enforced.

• Assessment: No further individual measure appears necessary.

General measures:

            1) Background information: More than 1 350 cases are currently pending before the European Court (submitted on behalf of around 13 500 applicants) concerning “old savings” (§63, Suljagić, application no. 27912/02, judgment of 03/11/2009, not final yet). 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 (“CC BIH”) and its Human Rights Commission (“HRC”) 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”).

However, there are no other applications pending before the European Court concerning unenforced domestic decisions ordering release of “old savings” denominated in foreign currency.

It is noted nonetheless that on 31/08/2009, the Commissioner for Human Rights issued a statement saying that flawed enforcement of court decisions undermines the trust in state justice in certain countries, including Bosnia and Herzegovina.

Concerning the general issue of the “old foreign savings accounts” the European Court also found a violation of Article 1 of Protocol No. 1 in the pilot-judgment procedure in the Suljagić judgment (see above) in respect of an applicant who has not obtained a domestic decision ordering the release of his “old savings” denominated in foreign currency but instead applied directly to the European Court. The violation originated in the unsatisfactory implementation of the legislation concerning the repayment scheme for the outstanding “old foreign currency savings”. The European Court held that this violation represented a systemic problem.

            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 further 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 entityand 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 communication from the authorities on 14/04/2009, the number of unexecuted 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. According to the data as of September 2008 in the Federation as well as in the District of Brčko there has only been one unexecuted binding domestic judgment in respect of the “old savings”. Likewise, in the RS there are about 64-70 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.

However, the RS Action Plan specified only 43 judgments in respect of the “old savings” denominated in foreign currency, which were submitted to the RS Ministry of Finance for payment as of March 2009. The total debt under these 43 judgments is 3.7 million “Convertible Markas” (BAM). The authorities stated in a letter of 06/10/2009 that they could only provide the number of relevant judgments which have been reported to the RS Ministry of Finance.

• 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 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. Pursuant to the Action Plan, the RS has so far discharged 17 judgments out of 22 envisaged to be paid in 2009. Approximately 1.5 million BAM has been paid to the creditors under those judgments ordering release of foreign savings out of planned 2.7 millions BAM. The RS Ministry of Finance planned 3 million BAM in the RS Budget for 2010 for this purpose.

• Detailed information is awaited on further payments made or envisaged with regard to the binding judgments concerning “old savings”.

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 organised in co-operation with the Government Agent of Bosnia and Herzegovina a round table in Sarajevo on 11/06/2009 with particular emphasis on enhancing compliance with domestic judgments. The round table was attended by senior officials from the Federation and RS as well as from Bosnia and Herzegovina. The participants adopted conclusions outlining the outstanding problems concerning non-enforcement of final court decisions in Bosnia and Herzegovina and proposing certain measures to eliminate those problems. These conclusions have been forwarded to the relevant government authorities. However, the authorities reported on 05/10/2009 that there have been no new developments in this regard and that creditors have shown a minimal interest for using this legal avenue.

• Information is also awaited on any progress in implementing the conclusions adopted at the round table of 11/06/2009 and on any measure taken or envisaged to ensure compliance with HRC decisions.

F. Publication and dissemination: The European Court's judgments were published in the Official Gazette. All 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.

- 167 cases against Bulgaria

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

The case concerns the disappearance in December 1995 of the applicant’s mother – suffering from progressively advancing Alzheimer’s disease – from a state-managed nursing home for the elderly, and the inability of the Bulgarian judicial system to establish the circumstances surrounding her disappearance or bring to account the persons or institutions responsible (violation of Article 2).

In this connectionthe European Court noted in the first place that the criminal investigation was plagued by periods of inactivity and contradictory decisions, and was only concluded by discontinuing proceedings against the medical staff in 2004 due to the expiry of the period of limitation. The Court noted in the second place that there had been neither disciplinary measures against the medical staff nor administrative measures by the competent administrative authorities to identify the possible causes for the breach in question. The Court stressed lastly that the civil action for damages was still pending, ten years after being brought by the applicant. The European Court considered that the deficiencies in the regulations applicable to the activities of the nursing home and its staff had undoubtedly contributed to the inability of the system to provide adequate and timely responses in conformity with the procedural obligations under the Convention.

The Court concluded that, despite the availability in Bulgarian law of three avenues of redress – criminal, civil and disciplinary – faced with an arguable case of negligent acts endangering human life, the authorities had not in practice provided an effective possibility to make use of the means for redress available in law.

The case also concerns the excessive length of civil proceedings initiated by the applicant against the Ministry of Labour and Social Care, the Ministry of the Interior and the Sofia Municipality (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damages. The criminal proceedings were closed in 2003, the action in the public interest being time-barred. The civil action for compensation was still pending when the European Court delivered its judgment.

• The authorities are invited to provide information on the current state of the civil proceedings and on their acceleration, if necessary. Information is awaited about possible disciplinary sanctions imposed on the responsible persons.

General measures:

            1) Violation of Article 2 (absence of judicial remedy to establish the facts and to hold accountable the persons concerned):

• The authorities are invited to provide information on the measures they have taken, or envisage to take, to ensure that the available remedies related to claims for negligent endangering the life of third parties are capable in practice of establishing the facts and holding accountable the persons responsible.

• The authorities are invited to identify in particular any potential omissions in the management, training, control or definition of duties of the different categories of staff in the nursing homes (see §97 of the judgment), which might lead to endangering the life of third parties due to negligent acts or omissions.

            2) Violation of Article 6§1, (length of civil proceedings): this aspect is examined under the Djangozov group (45950/99, Section 4.2).

• In any event publication and dissemination of the Court’s judgment to relevant authorities, in particular the Prosecution General’s Office for further dissemination to relevant prosecution offices throughout the country, to the Ministry of Labour and Social Care, the Ministry of the Interior, the Sofia Municipality, the Sofia District Court, the Sofia City Court, the Sofia Appellate Court, and to the Supreme Court of Cassation are expected. 

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.

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

The case concerns the unlawful detention of the applicant for a period of 8 days in November 1999 pending his expulsion, because – contrary to the requirements of the domestic law – his detention was not based on a written order explicitly stating that he was to be detained pending expulsion (violation of Article 5§1(f)).

The European Court noted that Bulgarian law at the time made a distinction between an order for an alien’s deportation and an order for his or her detention pending such deportation. The Court concluded that, as only an order for deporting the applicant had been issued, it could hardly be considered to have authorised additionally his detention for a period which was not subject to an upper limit.

The case also concerns the absence of a meaningful opportunity for the applicant to have the lawfulness of his detention pending deportation decided speedily by a court (violation of Article 5§4). The European Court noted that even assuming that the applicant could have had the lawfulness of his detention reviewed by a court by challenging in court his deportation order, such an application for judicial review could have only been lodged if the administrative avenues for appeal had already been exhausted or if the time-limit for their exhaustion had already expired. Bearing in mind that the applicant was deported 8 days after his arrest, the Court considered that the applicant had no realistic possibility of using this remedy to obtain a prompt review of his detention pending deportation. It was also not established that the applicant had at his disposal any other avenues for redress, given that Bulgarian law does not provide for a general habeas corpus procedure applying to all kinds of deprivation of liberty.

Individual measures: None as the applicant was deported in November 1999.

General measures:

1) Unlawful detention pending expulsion (Article 5§1):

• Information is awaited on measures envisaged to prevent future, similar violations.

2) Impossibility to have the lawfulness of detention pending deportation decided speedily by a court (Article 5§4): This case presents similarities to the Al-Nashif case (Section 4.2).

• Information is awaited in the present case on regulations and practice relating to the judicial supervision of detention pending deportation.

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.

• Assessment of the instructions issued in 2000 on the use of force and firearms by the military police is under way.

• Copies of the other instructions mentioned above are awaited.

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

Interim Resolution CM/Res/DH(2007)107

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Information is awaited on the outcome of this enquiry.

2) Anguelova case: The criminal investigation into the death of the applicants’ relative was discontinued in 2004 (following the judgment of the European Court in this case).

The Supreme Prosecutor’s Office of Cassation expressed the opinion that the investigation could not be reopened, as the decision to discontinue it had been taken by a prosecutor and not by a court. At the same time, the decision to discontinue the proceedings was examined ex officio by the competent appellate prosecutor, who concluded in 2008 that the initial decision had been lawful and justified.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

General measures:

1) Adopted measures: The measures adopted by the Bulgarian authorities were summarised in the Interim Resolution adopted in these cases in October 2007 (see CM/ResDH(2007)107).

The most important of them are presented below:

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

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

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

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

d) Violation of the right of property: In the light of the particular circumstances of this violation, the publication and the dissemination of the Osman case appear appropriate measures for execution. 

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

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

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

- 2 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, had determined with some degree of certainty the identity of the person who had stabbed the victim, and had charged some of the assailants, no one was brought to trial for the attack over a period of more than 11 years. As a result of the accumulated delays, the statute of limitations expired in respect of the majority of the assailants. The European Court found that the authorities failed in their obligation effectively to investigate the death of the applicants' relative promptly, expeditiously and with the required vigour, considering the racial motives of the attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.

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 in August 1997 (violation of Article 3). The applicant had identified the assailants to the authorities and had provided medical evidence that he had been physically assaulted. Some 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 decided to discontinue the prosecutions in June 2000 on the ground that there was no evidence that the applicant had been the victim of an offence. In taking these decisions, they 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. In addition, the European Court found that the authorities did not take certain investigative steps which it deemed necessary and the investigation had been affected by undue delays. The Court held that the inadequacies of the investigation had been too numerous and too serious for it to be regarded as effective.

Individual measures:

1) Angelova and Iliev case: The European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered. Investigations were still pending against two of the assailants when the European Court delivered its judgment. The charges against the others assailants had to be dismissed under the statute of limitations. The European Court stated in its judgment that considering the length of the proceedings so far, it found it questionable whether either of the two assailants still charged would ever be brought to trial or be successfully convicted (§103 of the judgment). 

The applicant’s lawyer submitted in April 2008 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 was transmitted to the competent prosecutor, who never replied to the applicants’ requests to read the file, and was 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 14/05/2008, in the presence of her lawyer, the applicant (the victim’s mother) was informed of the evidence collected during the preliminary stage of the criminal proceedings. All documents concerning the investigation have been submitted to the applicant.

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 one of the accused was ill. It took place on 15/07/2008. The judge rapporteur informed the applicant 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 did so during the first hearing and claimed approximately 50 000 euros in damages. During the first hearing 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 two 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 applicant’s lawyer took part in the proceedings.

• Information is awaited on 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.

The Deputies, 1.             took note of the information provided recently by the Bulgarian authorities on the development in the criminal proceedings against the alleged assailants of the applicants’ relative in the case of Angelova and Iliev; noted that this information remains to be studied in detail;  2.             noted the information provided at the meeting on individual measures in the case of Nikolay Dimitrov, and invited the authorities to submit it in writing and to keep the Committee informed of any development in this matter; 3.             took note of the information provided by the authorities, including at the meeting, on general measures and, in particular, on the publication of the European Court’s judgments in these cases and on the training activities organised by the National Institute for Justice; 4.             recalled in this respect that an action plan and/or an action report is expected from the authorities for the execution of the European Court’s judgments in these cases; 5.             decided to resume consideration of these cases at the latest at their 1086th meeting (June 2010) (DH), in the light of the assessment of the information provided, as well as of further information to be provided by the authorities.

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

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

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

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

Individual measures: The applicant seems still to be serving his prison sentence in Sofia Prison. The European Court awarded him just satisfaction in respect of the pecuniary damage flowing from the violation of Article 6§3e and of the non-pecuniary damage sustained.

• Information is awaited on the current situation of the applicant, whether he is still detained and in what conditions.

General measures:

1) Violation of Article 3: The case present similarities to the Kehayov group (41035/98, Section 4.2).

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

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

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

- 14 cases concerning the poor detention conditions of the applicants 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

28674/03           Kostov Slavcho, judgment of 27/11/2008, final on 27/02/2009

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

37449/02           Shishmanov, judgment of 08/01/2009, final on 08/04/2009

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

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

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

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

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

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

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

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

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

• Information urgently awaited: concerning the current stage of these proceedings and their acceleration.

General measures:

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

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

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

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

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

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

• Information awaited: on the dissemination of the judgment.

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

71127/01           Bevacqua and S., judgment of 12/06/2008, final on 12/09/2008

The case concerns the authorities’ failure tin their obligation o take appropriate action to ensure respect for the private and family life of the applicants, a mother and her minor son, in the difficult situation caused by the applicant’s divorce and her former husband’s behaviour (violation of Article 8).

The European Court noted in particular the fact that the competent court had failed to adopt interim custody measures between June 2000 and February 2001, in a situation of tense relations between the parents which had adversely affected the child (3 year old at the time). The Court also found that the measures taken by the authorities in reaction to the violent behaviour of the child's father during the divorce proceedings were not sufficient. In the Court’s view, the authorities’ failure to impose sanctions, or otherwise oblige the father to refrain from unlawful acts amounted to a refusal to provide the immediate assistance the applicants needed. The Court concluded that the authorities’ view that no such assistance was due as the dispute concerned a “private matter” was incompatible with their positive obligations to secure the enjoyment of the applicants’ rights under Article 8.

Individual measures: The parents are divorced, custody has been granted to the first applicant (the mother) and at the time of the judgment both applicants (mother and son) were living abroad. The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further individual measure seems necessary.

General Measures:

1) Failure to adopt interim custody measures without delay:

• The authorities are invited to provide information on measures taken or envisaged to prevent new, similar violations. Information will be appreciated on the existing remedies at the disposal of interested parties to challenge delays in examining requests for interim custody measures in divorce proceedings

2) Lack of sufficient measures in respect of the father’s behaviour: The European Court stressed in the judgment that administrative and policing measures – specified in Committee of Ministers Rec(2002)5 on the protection of women against violence or introduced following the relevant facts by the 2005 Bulgarian Domestic Violence Act - were called for in this case.

• The authorities are invited to provide examples demonstrating that current administrative and policing practices ensure that sanctions are imposed on individuals engaging in unlawful acts similar to those described in this case as regards the father and/or that the persons in question are prevented from committing such acts.

3) Publication and dissemination

• Information is awaited in any event on the publication of the European Court's judgment and its dissemination to competent courts, to draw their attention to their obligation to examine requests for interim custody measures in family dispute proceedings with due diligence, affording them the priority as might be necessary.

Wide dissemination is also awaited to prosecutors and police with a circular emphasising the conclusion of the European Court that the failure to impose sanctions, or otherwise oblige a person to refrain from unlawful acts in circumstances similar to those of the present case is incompatible with the authorities’ positive obligation to secure the enjoyment of rights under Article 8.

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

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

In December 1998 the Sofia District Court found the applicant guilty as charged and sentenced him to three years’ imprisonment. After the Sofia District Court dismissed his appeal on procedural grounds, the applicant was detained on 30/11/1999 in Sofia Prison to serve his sentence. Later, the Sofia City Court found that the district court had erred in dismissing the applicant’s appeal and referred the case back to that court for fresh consideration of his appeal. Although the applicant’s conviction and sentence were since then no longer considered final, the Sofia City Court refused to consider whether the applicant should remain in custody, saying that it was for the Sofia District Court to decide on this matter. However, the latter failed to examine several subsequent requests for release made by the applicant.

The applicant was finally released on 26/10/2000, following an order by the Sofia Prosecutor’s Office stating that the applicant’s conviction and sentence were no longer final and that he could not be kept in custody pursuant to them.

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

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

• Assessment: no individual measure seems to be necessary.

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

It was also due to the lack in Bulgarian law of a general habeas corpus procedure whereby any individual deprived of his or her liberty, regardless of the grounds for it, is entitled to request a court to review the lawfulness of his or her detention and order his or her release if the detention is not lawful.

The European Court noted furthermore that as matters stand, Bulgarian law envisages distinct procedures for challenging specific types of deprivation of liberty, such as pre-trial detention, confinement to a mental institution or detention pending deportation. The result of this approach is that individuals whose deprivation of liberty does not fall within a well-defined category are likely to face serious or even insuperable difficulties in challenging it (see §61 of the judgment).

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

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

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

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

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

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

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

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

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

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

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

General measures:

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

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

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

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

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

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

The case concerns the irregularity of the detention of the applicant between May 1999 and February 2000 on account of the lack of clarity in domestic law about the conciliation between different periods of detention which appear to run in parallel and the resolution of possible disagreements amongst state organs on that subject (violation of Article 5§1).

Between 1995 and 1999 Mr Dimitrov was convicted on three occasions of theft. At the end of the third set of proceedings he was sentenced to a term of imprisonment of 3 years and 2 months, from which the court deducted the period of pre-trial detention in these proceedings (from June 1996 to December 1998). The applicant served the so defined sentence in December 1998. However, he was detained again between May 1999 and February 2000 for the execution of the same conviction, because the prosecution considered that the pre-trial detention that was to be deducted from the punishment comprised a shorter period (from June 1996 until August 1997). According to the prosecution and also the penitentiary authorities, the pre-trial detention was suspended in August 1997, given that as of that date and till December 1998 the applicant was detained for the execution of the first two sentences.

The European Court observed in this connection that the pre-trial detention of the applicant was formally revoked only in December 1998 and that the domestic legislation does not provide for its automatic suspension the moment a detainee starts serving a prison sentence. It expressed doubt concerning the power of the prosecution to order the execution of what it considers to be the remaining part of a sentence, despite a clear court decision on that subject.

The case also concerns the lack of a remedy allowing the applicant to challenge the lawfulness of the detention in question before a tribunal (violation of Article 5§4). The European Court observed that in domestic law a general habeas corpus procedure did not exist and that none of the specific procedures concerning the detention was applicable to this situation.

In this case the applicant was not permitted an executable right to compensation for his detention effected contrary to the provisions of Article 5 of the Convention (violation of Article 5§5). In fact, at the end of the proceedings, which he initiated on the basis of the Law on the responsibility of the State and the municipalities for damage, the competent courts concluded that his detention was in conformity with domestic law.

Individual measures: The applicant was released in February 2000 and the European Court awarded him just satisfaction in respect of non-pecuniary damages.

• Assessment: No other individual measure appears necessary.

General measures:

            1) Unlawful detention in the absence of clear provisions concerning the conciliation between different periods of detention which appear to run in parallel (violation of Article 5§1):

• The authorities are invited to provide informationabout the current provisions governing this question, and, if necessary, about the measures envisaged or already adopted in order to establish clear regulations on this subject, including solving potential disagreements among the State organs in this area.

            2) Lack of judicial control of the lawfulness of the detention (violation of Article 5§4):

• Information is awaited on the possibility to introduce in Bulgarian law a judicial control of the deprivation of liberty in similar cases. It should be noted that a similar question has already been raised in the Stoichkov case on the subject of control of the lawfulness of detention for the execution of a sentence passed in absentia (9808/02, 1078th meeting, March 2010).

            3) Lack of an enforceable right to compensation for detention in contravention of Article 5): The measures to adopt are linked to those concerning the violation of Article 5§1. In fact, while accepting the application of the Law on the responsibility of the state and the municipalities for damage, the courts responsible for the case rejected the request for compensation of the applicant on the basis of diverging arguments, the court of first instance having even concluded that his detention has been unlawful. It appears that the approach of the courts in this procedure is largely attributable to the lack of clarity on the conciliation between periods of detention running simultaneously.

• In any event, the authorities are invited to publish and to disseminate this judgment to the competent authorities, in particular to prosecutors.

- 10 cases mainly concerning the length of detention on remand[5]

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

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

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

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

Individual measures: The European Court held there was no causal link between the violation found and the alleged pecuniary damage, and awarded the applicant company just satisfaction in respect of non-pecuniary damage sustained.

• Information is awaited on any possible individual measures in favour of the applicant company.

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

• Information is awaited in this respect.

19612/02           Kalkanov, judgment of 09/10/2008, final on 09/01/2009

The case concerns unfairness of civil proceedings brought by the applicant in order to have his dismissal revoked. When deciding on the applicant’s appeal on points of law, the Supreme Court of Cassation refused to examine a decisive argument raise by him on the pretext that it was a new argument which had not been examined by the lower courts and required the gathering of new evidence.

The European Court considered that this conclusion of the Supreme Court of Cassation was clearly erroneous as it was not consonant with the material in the file nor with the findings of the lower courts. The argument had actually been submitted in the applicant’s initial statement of claim and had therefore been raised before the lower courts (violation of Article 6§1).

Individual measures: The proceedings before the Supreme Court of Cassation challenged by the judgment led to the refusal of the applicant’s request to have his dismissal revoked. The applicant did not submit any just satisfaction claim to the European Court.

• Information is awaited on any individual measures taken or envisaged.

General measures: The violation in this case seems to constitute an isolated incident, due to a mistake by the Supreme Court of Cassation. Publication of the European Court’s judgment and its dissemination to the judges of that court appear to be sufficient for the execution of the judgment.

• Information is awaited in this respect.

49429/99           Capital Bank AD, judgment of 24/11/2005, final on 24/02/2006[6]

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

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

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

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

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

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

• Assessment: no further individual measure seems necessary.

General measures:

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

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

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

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

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

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

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

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

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

The European Court noted in particular that the professional links between the judges of the Sofia City Court and one of the parties to the compensation proceedings were sufficient to give rise to legitimate concerns for the applicant about their impartiality. The Court also observed that the compensation which was to paid to the applicant if successful would have been debited from the budget of the same Sofia City Court, which added to the applicant’s concerns.

The European Court concluded that the Sofia City Court which examined the applicant’s case at first instance, did not satisfy the conditions of independence and objective impartiality and that this deficiency had not been remedied by the higher courts.

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

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

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

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

General measures:

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

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

2) Violation of the applicant’s access to court due to excessive court fees (Article 6§1): The case presents similarities to the Stankov case (68490/01, Section 4.2). It should be noted that the rules of the State and Municipality Liability Act regarding the assessment and payment of court fees due under the act were amended in May 2008 to the effect of introducing a flat state fee in respect of any litigation under this Act. The flat fee is determined by standardised tariffs applicable to state fees collected by courts under the Civil Procedural Code as follows: a) for citizens, sole traders and not-for-profit legal entities – BGN 10 (approximately EUR 5) and b) for other legal entities – BGN 25 (approximately EUR 13). Further, no litigation or enforcement costs are to be paid in advance. The claimants shall pay all costs incurred in the proceedings only if the claim has been rejected in its entirety by the court, or if the claimants withdraw or waive their claim entirely. If the court upholds the claim, in its entirety or partially, the defendant shall be ordered to pay the costs relating to such proceedings, as well as the claimant’s state fee.

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

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

The case concerns the unfairness of the applicant's trial in that he was unable to appear and defend his case, either in person or through his lawyer, before the courts which had ruled on his case (violation of Article 6§§1 and 3 c). In February 1997 the applicant and his lawyer could not attend the hearing at which his appeal against an administrative fine was examined, as the summons to attend the hearing had been sent to the applicant's former address, despite his lawyer's repeated requests that it be sent to her offices. His application for a retrial was granted by the Sofia City Court, which, although acknowledging that the applicant had not been summoned in the proper manner, examined his appeal on the merits again without summoning him or his lawyer to appear and upheld the administrative decision imposing a penalty on the applicant.

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

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

General measures: Under Section 59 of the Administrative Offences and Punishment Act, an administrative sanction shall be subject to appeal before a district court, which is obliged under Section 61 to summon the offender. At the material time, the decision of the district court was not subject to appeal by the interested party; it was only the public prosecutor who had the possibility to seize the competent (regional) court with a request for review (Sections 65-69). In such proceedings, the competent court examined the case either in a public hearing with the participation of the parties or in camera.

In 1998, the procedure of review at the request of the public prosecutor was repealed and replaced by an appeal on points of law. In the framework of these proceedings, the Supreme Administrative Court now holds a public hearing with the participation of the parties (Section 217§2 of the Code of Administrative Procedure).

• Assessment: given that to a great extent the violation in this case was the result of a bad application of the procedural rules in force, the dissemination of the European Court’s judgment to all administrative courts appears sufficient in terms of execution measures.

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

The case concerns the unfairness of the applicant’s trial in that he was unable to cross-examine the witnesses whose statements had served as the main basis for his conviction in 1999 (violation of Article 6§§1 and 3 d)). The court considered that these witnesses could not be found, and could not be summonsed to appear as one of them had died and the other was not found at the indicated address (and was apparently a vagrant). It therefore, with the applicant’s consent, had read into the record the testimony they had given at the stage of the preliminary investigation. The applicant appealed without success.

The European Court found that the applicant could not be regarded as having waived his rights under Article 6 of the Convention, as he was not represented by a lawyer when he agreed to the reading of the statements and, moreover, he had not been cautioned as to the consequences of this act. The Court noted, furthermore, that no effort had been made to establish the whereabouts of the only eyewitness still alive, even though the applicant was accused of murder and risked a severe sentence.

Individual measures: the applicant was sentenced in 1999 to ten years’ imprisonment. According to the Code of Criminal Procedure (Articles 421§2 and 422§1, p. 4) when a judgment of the European Court has found a violation of the Convention which is decisive for the criminal proceedings, the Prosecutor General is obliged to request the reopening of the proceedings in question within one month from the date upon which he took cognisance of the judgment of the European Court.

• Information is awaited on the applicant’s present situation and on a possible request for reopening of his trial. 

General measures: The witnesses statements at issue in this case were included in the file on the basis of Article 279§1, pp. 4 and 5 of the Code of Criminal Proceedings of 1974. According to the first of these provisions, the statement of a witness given at the preliminary investigation could be read out at the trial and included in the file if the witness had died or he could not be found in order to be called. According to the second provision, this could also be done, if the witness, despite being duly subpoenaed, did not appear and the parties agreed to this. 

According to a new provision, introduced in 2003 (Art. 279§3), on the conditions of §1 (see above) statements made at the preliminary investigation may be included in the file if the parties agree. In such cases, the court is obliged either to appoint a lawyer for the accused, if he is not already represented but wishes to have a lawyer, or to explain to the accused what would be the consequences of his consent. This legislative framework was maintained in the new Code of Criminal Procedure of 2006 (Art. 281§§1 and 3). 

• Assessment: as it seems that it is still possible to include in criminal case-files witness statements given at the preliminary investigation without the consent of the accused, it is necessary to send the judgment of the European Court out to all criminal courts, to draw their attention in particular to the need for thorough efforts to locate witnesses before considering that they could not be found.

It should be noted that two decisions of the Supreme Court, of 1981 and 1991, support this approach, but they were not followed in the present case (§31 of the European Court’s judgment).

The judgment of the European Court was published on the Internet site of the Ministry of Justice www.mjeli.government.bg.

 

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

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

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

• Assessment: no further individual measure seems necessary.

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

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

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

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

The case concerns the lack of access to a court due to the unmotivated dismissal of the applicant’s petition for review (cassation) by the Supreme Court of Cassation (violation of Article 6§1).The European Court noted that the order dismissing the applicant’s petition as time-barred could not be seen as a justified enforcement of a legitimate procedural limitation on the applicant’s right of access to a court as it did not indicate the dates on which the relevant time-limit had started to run and expired and the date on which the appeal had been submitted.

Individual measures: The applicant was sentenced to a year's imprisonment, suspended. In addition his driving licence was suspended for a year.

Under the Code of Criminal Procedure (Articles 421§2 and 422§1, p. 4) when a judgment of the European Court has found a violation of the Convention which is decisive for the criminal proceedings, the Prosecutor General is obliged to request the reopening of the proceedings in question within one month from the date upon which he took cognisance of the judgment of the European Court. In addition the European Court awarded the applicant just satisfaction for non-pecuniary damage.

• Information is expected on the current situation of the applicant and whether the Prosecutor General has requested the reopening of the proceedings.

General measures: The European Court noted that the order of the Supreme Court of Cassation dismissing the applicants petition for review (cassation) as time-barred was made on a standard form which did not mention any dates (§18).

• The authorities are invited to provide information on measures taken or envisaged in order to comply with the requirements of the European Convention.

• Information is awaited concerning the publication of the European Court's judgment and its dissemination to relevant courts and authorities, to raise domestic courts' awareness of the Convention's requirements as they result from this case.

- 2 cases concerning the violation of the right of access to a court due to excessive amount of court fees imposed in civil proceedings for damages[7]

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

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

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

CM/Inf/DH(2007)33

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, Section 4.2).

64209/01           Peev, judgment of 26/07/2007, final on 26/10/2007[8]

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[9]

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

The case concerns the violation of the freedom of movement of the applicant (born in Bulgaria but having acquired dual Bulgarian and Austrian nationality by marriage) due to the ban imposed on her leaving Bulgaria between 1995 and 2004 for non-payment of tax debt amounting to the equivalent of at least 150,000 euros (violation of Article 2 of Protocol No 4).

The European Court found that the authorities had failed to give due consideration to the principle of proportionality in their decisions, the travel ban imposed on the applicant being of an automatic nature and of indeterminate duration. The authorities failed to take account of a number of relevant issues, such as the fiscal authorities’ failure to take steps to recover the debt, the debtor’s potential ability to pay and the respect of her private and family life, since under the legislation in force at the material time, a travel ban could be lifted only when the debt was either paid or sufficiently secured (apparently for the full amount) or after the extinction of the debt by prescription. For the same reasons, the domestic courts only examined the formal lawfulness of the travel ban and thus only a limited degree of review was afforded to the applicant in respect of this measure (violation of Article 13).

Individual measures: The travel ban imposed on the applicant was lifted in 2004 following the expiry of the prescription period of her debt. The European Court awarded her just satisfaction in respect of the non‑pecuniary damage she sustained. The applicant’s request for compensation of an alleged pecuniary damage was rejected as it was not supported by convincing evidence.

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

General measures: The provisions of the Laws on Foreigners and on Passports, challenged in this judgment, were replaced in 1998 and 1999 respectively, by those of the Aliens Law and the Law on Bulgarian Identity Documents. However, these modifications do not appear to have remedied the deficiencies found in the European Court’s judgment (see the summary of the new provisions currently in force in §§61-66 of the judgment). Furthermore, the new provisions do not appear to contain any more safeguards against arbitrariness than those in force at the material time concerning the manner in which the authorities handled some issues in this case (in particular, their communication through internal notes – not communicated to the applicant – as regards the annual confirmation of non-payment of the debt and the prescription question, see §129 of the judgment).

In addition, it should be noted that the European Court referred in its judgment to different solutions concerning these issues adopted by several other member states and indicated that, regardless of the approach chosen, the principle of proportionality must apply, in law and in practice (§128 of the judgment).

• Evaluation: legislative measures appear to be necessary in this case.

• Information provided by the Bulgarian authorities (letter of 12/11/2007): The European Court’s judgment was sent by the Minister of Justice to the Supreme Administrative Court, the Sofia City Court, the Ministry of Interior and the Ministry of Finance, together with a letter emphasising the conclusions of the European Court. The Action Plan presented by the authorities envisages the drafting of legislative proposals in line with the requirements of the European Court.

• Information awaited: A copy of any such draft legislative proposals would be appreciated.

The judgment of the European Court has been published on the internet site of the Ministry of Justice http:www.mjeli.government.bg.

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

The case concerns an unlawful interference with the freedom of expression of the applicant company due to the refusal without reasoning by the competent body, the National Radio and Television Committee (NRTC), to award it a radio broadcasting licence (violation of Article 10).

The European Court pointed out in particular that the NRTC had not held any form of public hearing and its deliberations had been kept secret, despite a court order obliging it to provide the applicants with a copy of its minutes. Nor had the NRTC given reasons explaining why it considered that the applicant company had failed to meet its requirements. This lack of reasons had not been made good in the ensuing judicial review proceedings, because the Supreme Administrative Court had held that the NTRC’s discretion was not reviewable. This, coupled with the vagueness of some of the NRTC’s criteria, had denied the applicants legal protection against arbitrary interference with their freedom of expression.

The case also concerns the absence of a judicial review of the NRTC’s decision. The Court observed that the approach taken by the Supreme Administrative Court in the applicants’ case, which had involved refusing to interfere with the NRTC’s discretionary powers, had fallen short of the requirements of Article 13, which obliges domestic authorities to examine the substance of the complaints made under the Convention (violation of Article 13).

Individual measures:  

• Information is still awaited as to whether the applicants may submit a new application for a radio broadcasting licence (currently before the Electronic Media Council).

General measures: The European Court found in its judgment that the guidelines adopted by the Committee of Ministers in the field of broadcasting regulations called for open and transparent application of the regulations governing the licensing procedure and specifically recommended that all decisions taken by regulatory authorities are duly reasoned and open to review by the competent judicial bodies (Recommendation Rec(2000)23). In this connection, it should be noted that the national law provided at the material time and still provides that the decisions of the competent body to grant, modify or withdraw a radio broadcasting license may be reviewed by the Supreme Administrative Court (Article 38 of the Law on Radio and Television). The approach followed by the Supreme Administrative Court in this case appears to be based solely on its practice.

• Information is awaited on measures envisaged to prevent new, similar violations. In particular it would be useful to have a copy of the regulations currently in force concerning the criteria and procedure for the award of radio broadcasting licences. In any event, the publication of the European Court’s judgment and its dissemination to the Electronic Media Council formerly the NRTC), to the State Telecommunications Commission and to the Supreme Administrative Court, appear necessary measures of execution.

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

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

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

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

• Assessment: no further measure appears necessary.

General measures:

            1) Violation of Article 11: It seems that this was an isolated violation.

• Publication of the European Court's judgment and its dissemination among relevant courts and authorities are expected, to raise their awareness of the Convention's requirements as they result from this case.

            2) Violation of Article 13: The question of an effective remedy is examined in the context of the United Macedonian Organisation Ilinden and Ivanov case (59491/00, Section 4.2).

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

The case concerns the unjustified refusal by the domestic courts to register an association in 1999 on the ground that its aims were “political” and incompatible with the Constitution (violation of Article 11).

As to the alleged “political” character of the association, the European Court found that since associations were not allowed to participate in national, local or European elections there was no “pressing social need” to require every association deemed to pursue “political” goals to register as a political party. Moreover, the exact meaning of the term “political” appeared quite vague under Bulgarian law. Thus, in the present case the domestic courts had considered that a campaign for the restoration of the Constitution of 1879 and the monarchy fell within that category. In another case, the courts stated that the holding of meetings and other forms of public campaigning by an association aimed at achieving alleged minority rights also amounted to political goals (see the judgment in the case of the UMO Ilinden and others, judgment of 19/01/2006). The Constitutional Court has, for its part, adopted a different definition of “political”, which was centred on “participation in the process of forming the bodies through which … the people exercise[d] its power” (judgment of 21/04/1992).

In the light of the foregoing, the European Court found that a classification based on this criterion is liable to produce inconsistent results and give rise to considerable uncertainty among those wishing to apply for registration.

As to the alleged incompatibility of the association’s aims with the Constitution of 1991, the European Court observed that restoring the monarchy or campaigning for change in legal and constitutional structures were not in themselves incompatible with the principles of democracy, as there was also nothing to suggest that the association would use violent or undemocratic means to achieve its aims.

Individual measures: The applicant, one of the founders of the association in question, may reapply for registration of the association. However, it appears that the individual measures are closely linked to the general measures (see below).

• Information would be useful on the applicant’s present situation.

General measures:

1) “Political” aims as a ground to refuse registration as association: The ban on associations’ pursuing political goals or carrying out political activities solely characteristic of political parties, at the origin of the domestic court’s refusal to register the applicant’s association, is provided in Article 12§2 of the Constitution of 1991.

• The Bulgarian authorities are invited to provide information on measures envisaged or already taken to overcome the shortcomings identified by the European Court in its judgment.

2) Incompatibility of the aims of the association with the Constitution: Solutions to this problem are also being discussed in particular in the framework of the UMO Ilinden and others case (59491/00, Section 4.2).

• Information is also awaited on the publication of the judgment in this case and on its wide dissemination to the competent authorities.

- Case concerning the refusal to register an association aiming to achieve “the recognition of the Macedonian minority in Bulgaria”

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

                        CM/Inf/DH(2007)8

This 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 (violation of Article 11).

The European Court concluded that the refusal to register the association was prescribed by law and pursued a legitimate aim but were not "necessary in a democratic society”. The Court noted in particular that the alleged formal deficiencies in the registration documents or the supposed substantive divergences between Ilinden’s articles and the laws of the country did not constitute, in the circumstances of the case, sufficient reason to deny registration. As regards the alleged dangers stemming from Ilinden’s goals and declarations, the Court considered that the refusal to register the association was not necessary to protect the territorial integrity of the country, public order or the rights and freedoms of the majority of the population in the region in question. 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 applicant 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).    

Individual measures: The European Court noted 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) Awareness-raising measures: The European Court’s judgment 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. The judgment was 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 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

Furthermore, several training activities have been organised (see also the case of the UMO Ilinden-PIRIN and others, judgment of 20/10/2005, Section 6.2).  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. 

2) Communications from civil society: On 10/03/09 the Bulgarian Helsinki Committee submitted information relating to the refusals of the Blagoevgrad regional court, in December 2008 and in January 2009, to register 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). On 02/06/09 the Bulgarian Helsinki Committee submitted another communication referring to the confirmation on appeal of the refusal to register the associations mentioned above. According to this communication, the decisions of the appeal courts have been themselves appealed before the Supreme Court of Cassation. A copy of the decision of the appeal court in one of these proceedings has been submitted (see DD(2009)405E of 10/08/2009).

• 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. 

• The authorities’ comments on this question are awaited.

            3) Publication: The judgment of the European Court was 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 judgment was 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. 

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)

The case concerns the failure by the Bulgarian courts to respect the final character of a judgment of 1996, ordering the restitution of certain plots of land to the applicants (violation of Article 6§1). In 2000, following proceedings brought by the local forest authority, the Supreme Court of Cassation reconsidered the issues determined in 1996 and found that the applicants were not legally entitled to the land in question. The Supreme Court of Cassation found that the decision of 1996 did not have res judicata effects to the forest authority, as this decision was given in proceedings which were administrative by their nature, with the participation of the restitution commission. 

The case also concerns a breach to the peaceful enjoyment of the applicants’ property, as the Supreme Court of Cassation’s decision of 2000 had the effect of depriving them of their possession, in violation of the principle of legal certainty. Furthermore, one of the applicants was fined in 1997 for having used the land which belonged to him according to the decision of 1996 (violations of Article 1 of Protocol No. 1).

Individual measures: Under Article 41, the respondent state was to return to the applicants the ownership and possession of the plots of land at issue or, failing such restitution, the state was to pay the applicants within the same deadlines certain sums corresponding to the value of the property. The Bulgarian authorities did not return the land at issue to the applicants, but instead paid the amounts awarded by the European Court as compensation for pecuniary damage in case of non-restitution, as well amounts awarded in respect of non-pecuniary damages and for costs and expenses, into bank accounts specially opened for that purpose in the name of the applicants.

• Assessment: No other measure appears necessary.

General measures: The European Court noted in its judgment that according to the case-law prevalent at the material time, judgments concerning restitution of agricultural land (under the Agricultural Land Act of 1991) do not have res judicata effects. The contrary was stated in a decision of the Supreme Administrative Court of 2003 (decision 1021/2003, see §45 of the judgment of the European Court). 

• Information required: on the present practice followed by the Bulgarian courts as regards this question and, if appropriate, on the measures envisaged to guarantee that disputes decided by final decisions given in the framework of land restitution proceedings are not reconsidered as regards the same parties (the state should be considered as one party, even if it is represented by different authorities).

In any event, it seems necessary to publish the judgment of the European Court and send it out to the relevant courts in order to allow them to take into account the considerations of the Court and to draw their attention to their obligations under the Convention.

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

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

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

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

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

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

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

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

General measures:

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

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

• Information is awaited as regards this last question. A similar question has been raised in the framework of the Yordanov Krasimir case (50899/99, 1078th meeting, March 2010).

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

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

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

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

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

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

General measures: The case presents certain similarities to the Velikovi and others group (43278/98, Section 4.2) which concerns application of the 1992 Law on the Restitution of Real Property. However, the present case differs from this group in that it concerns specific conditions of the restitution set forth in the Restitution of Stores, Workshops and Storage Houses Act 1991. 

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

- 2 cases concerning the failure to deliver real properties as compensation for expropriated properties[12]

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

- 8 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[13]

43278/98+         Velikovi and others, judgment of 15/03/2007, final on 9/07/2007, judgment of 24/04/2008 (Article 41), final on 24/07/2008

56753/00           Dimitar and Anka Dimitrovi, judgment of 12/02/2009, final on 12/05/2009

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

57176/00           Koprinarovi, judgment of 15/01/2009, final on 15/04/2009

6189/03            Mihaylovi, judgment of 12/02/2009, final on 12/05/2009

60805/00           Miteva, judgment of 12/02/2009, final on 12/05/2009

55722/00           Simova and Georgiev, judgment of 12/02/2009, final on 12/05/2009

42617/02          Vladimirova and others, judgment of 26/02/2009, final on 26/05/2009

                       - 26 cases of length of civil proceedings and lack of an effective remedy[14]

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

                       - 44 cases of length of criminal proceedings and of lack of an effective remedy[15]

37104/97           Kitov, judgment of 03/04/03, final on 03/07/03

35825/97           Al Akidi, judgment of 31/07/03, final on 31/10/03 rectified on 16/10/03

61662/00           Angelov Vasil, judgment of 12/04/2007, final on 12/07/2007

61596/00          Atanasov and Ovcharov, judgment of 17/01/2008, final on 17/04/2008

72001/01           Atanasova, judgment of 02/10/2008, final on 02/01/2009

70843/01           Balabanov, judgment of 03/07/2008, final on 03/10/2008

39270/98           Belchev, judgment of 08/04/2004, final on 08/07/2004

50401/99           Dimitrov Vasko Yordanov, judgment of 03/05/2006, final on 03/08/2006

56762/00           Dimov, judgment of 08/03/2007, final on 08/06/2007

23057/03           Dinchev, judgment of 22/01/2009, final on 22/04/2009

68356/01           Doinov, judgment of 27/09/2007, final on 27/12/2007

43231/98           E.M.K., judgment of 18/01/2005, final on 18/04/2005

44062/98           Hamanov, judgment of 08/04/2004, final on 08/07/2004

35436/97           Hristov, judgment of 31/07/03, final on 31/10/2003

32461/02           Hristov Ivan, judgment of 20/03/2008, final on 20/06/2008

36244/02           Hristov Stoine No. 2, judgment of 16/10/2008, final on 16/01/2009

67189/01           Ivanov, judgment of 24/05/2007, final on 12/11/2007

49163/99           Kalpachka, judgment of 02/11/2006, final on 02/02/2007

65051/01           Karagyozov, judgment of 25/10/2007, final on 25/01/2008

76965/01           Karmo, judgment of 06/12/2007, final on 06/03/2008

45964/99           Karov, judgment of 16/11/2006, final on 26/03/2007

50326/99           Kolev, judgment of 28/04/2005, final on 28/07/2005

30380/03           Lisev, judgment of 26/02/2009, final on 26/05/2009

71605/01           Mirchev and others, judgment of 27/11/2008, final on 27/02/2009

58775/00           Mladenov, judgment of 12/10/2006, final on 12/01/2007

43428/02           Myashev, judgment of 08/01/2009, final on 08/04/2009

38106/02           Nalbantova, judgment of 27/09/2007, final on 27/12/2007

44241/98           Nedyalkov, judgment of 03/11/2005, final on 03/02/2006

40896/98           Nikolova No. 2, judgment of 30/09/2004, final on 30/12/2004

54178/00+         Osmanov and Yuseinov, judgment of 23/09/2004, final on 23/12/2004

50358/99           Pekov, judgment of 30/03/2006, final on 30/06/2006

48137/99           Popov, judgment of 01/12/2005, final on 01/03/2006

56337/00           Rezov, judgment of 15/02/2007, final on 15/05/2007

37355/97           S.H.K., judgment of 23/10/03, final on 23/01/04

55057/00           Sidjimov, judgment of 27/01/2005, final on 27/04/2005

58733/00           Sodadjiev, judgment of 05/10/2006, final on 05/01/2007

62594/00           Terziev, judgment of 12/04/2007, final on 12/07/2007

56308/00           Toshev, judgment of 10/08/2006, final on 10/11/2006

42987/98           Vachev, judgment of 08/07/2004, final on 08/10/2004

72636/01           Valkov, judgment of 08/01/2009, final on 08/04/2009

59913/00          Vasilev, judgment of 02/02/2006, final on 02/05/2006

61257/00           Vasilev and others, judgment of 08/11/2007, final on 08/02/2008

70728/01          Yankov No. 2, judgment of 07/02/2008, final on 07/05/2008

45563/99           Zhbanov, judgment of 22/07/2004, final on 22/10/2004

- 40 cases against Croatia

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

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

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

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

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

• Assessment: In view of the above information, no other individual measure appears possible. 

General measures: The European Court found in the Beganović case (judgment 25/06/2009, Section 2, 1078th meeting, March 2010) that Croatia had failed effectively to bring to justice perpetrators of ill-treatment in respect of an applicant of Roma origin.

The Court also found violation resulting from the lack of an effective investigation into allegations of violence in the Sandra Janković case (38478/05, Section 2.1) concerning an applicant who is not of Roma origin.

• Information provided by the Croatian authorities (12/11/2007 and 04/11/2008):

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

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

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

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

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

• Assessment: The Croatian authorities have taken a number of measures to improve the efficiency of investigations into hate crimes. However, in view of recent judgments rendered by the European Court in the Beganović and Sandra Janković cases, it appears that the lack of an effective investigation into allegations of violence by individuals, including that against persons of Roma origin, and the failure to bring perpetrators of such violence promptly to justice, might still represent an issue in Croatia.

• Information is thus awaited on further measures taken or envisaged to ensure that allegations of violence committed by individuals, including that against persons of Roma origin, are efficiently investigated and the perpetrators promptly brought to justice.

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

The case concerns the failure of the authorities to decide on the amount of compensation to which the applicants were entitled under domestic law for the expropriation in 1976 of certain of their properties (violation of Article 1 of Protocol No. 1). The European Court noted that most of the delays were caused by the successive remittals which, in the Court’s view, disclosed a deficiency in the procedural system.

The case also relates to the lack of an effective remedy under domestic law which would have enabled the applicants to obtain a decision determining the amount of their compensation (violation of Article 13). The Court noted in this respect that the constitutional complaint against the excessive length of judicial proceedings introduced in Croatia in 2002 was not applicable to the proceedings before the administrative organs.

Individual measures: The proceedings challenged in this judgment were still pending when the European Court delivered its judgment. The European Court awarded to the applicants just satisfaction corresponding to the difference between the value of their property and the compensation they obtained at national level by the decision of the Ministry of Justice of 19/05/2006.

▪ Information provided by the Croatian authorities (29/09/2009): On 20/05/2009, the State Administration Office in Virovitica County decided to discontinue the proceedings concerning the applicants’ request for compensation in respect of the expropriated property in view of the award of just satisfaction by the European Court in respect of pecuniary damage. On 11/09/2009, the Ministry of Justice rejected the applicants’ complaint in respect of the decision of the State Administration Office.

▪ Assessment: The European Court found that the national law provided only partial reparation for the consequences of the violation. Thus, it considered it had to award the difference between the value of their property and the compensation they obtained at national level. Therefore, no other individual measure appears necessary.

General measures:

1) Violation of Article 1 of Protocol No. 1 : The European Court noted in its judgment that the new Expropriation Act of 1994 provides that the decision on compensation should be given at the same time the actual expropriation takes place (§17). Moreover, if there are still cases similar to that of the applicants, they should be settled with the introduction of an effective remedy against the excessive length of this kind of proceedings (see below).

▪ Information provided by the Croatian authorities (05/11/2008): The administrative authorities have been informed of the need to conclude any similar proceedings concerning expropriation compensation as soon as possible. In the case of successive remittals, the second-instance body would apply the new case-law and award an advance payment to the party concerned pending the final resolution of the issue.

2) Violation of Article 13: This issue is examined in the framework of the case of Počuča (38550/02, Section 4.2).

3) Publication and dissemination: The judgment of the European Court was published on the website of the Ministry of Justice (www.pravosudje.hr). It was sent to the Constitutional Court, Supreme Court, State Administration Office in Virovitica County and Civil Law Directorate of the Ministry of Justice.

• Assessment: It appears that the provisions of the Expropriation Act of 1994 and the change in administrative practice will eliminate the risk of similar violations. In addition, a remedy has been introduced in respect of excessive length of administrative proceedings. However, the efficiency of this remedy remains yet to be demonstrated (see the Počuča cases).

- 4 cases concerning the allocation of the applicants’ possessions by state authorities to third persons

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

9224/06            Brajović-Bratanović, judgment of 09/10/2008, final on 09/01/2009

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

889/06              Vučak, judgment of 23/10/2008, final on 23/01/2009

These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions in that they were prevented from using their property as it was allocated by state authorities to third persons on the basis of the Act on the provisional requisition and management of certain property (“the Takeover Act”) (violation of Article 1 of Protocol No. 1).

Between 2000 and 2003, the competent authorities (Housing Commissions or courts) ordered the occupants of the applicants’ properties to vacate them, but these orders remained unenforced for several years The relevant legislation and the case-law of the Supreme Court required the authorities to provide the temporary occupants with alternative accommodation before they were evicted from the properties occupied under the Takeover Act.

Although the European Court recognised that the Croatian authorities faced an exceptionally difficult task in balancing the rights of owners with those of temporary occupants in the context of the return of refugees and displaced persons, it considered that the applicants had been subjected to an excessive restriction of their property rights.

The Radanović case also concerns the ineffectiveness of the remedies at the applicant’s disposal to seek repossession of her flat (a civil action and an application to the local administrative authorities) (violation of Article 13).

The Brajović-Bratanović and Kunić cases also concern the excessive length of civil proceedings, including consecutive administrative, civil and enforcement proceedings in Kunić (violation of Article 6§1).

Individual measures: All the applicants have now recovered their properties. The European Court awarded them just satisfaction in respect of pecuniary and non-pecuniary damages.

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

General measures:

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

According to the Act on areas of special state concern, a temporary occupant has a right to housing. It also provides that a temporary occupant whose right to housing is to be satisfied by providing him with construction material, must vacate the house or flat provided for his temporary use within 90 days of the final shipment of such material (Section 18(1)). Section 18(2) provides that if a temporary occupant fails to observe this time-limit, the State Attorney will, within 15 days following the expiry of the time-limit, institute civil proceedings for his eviction. Such action may be also brought independently by the owner (Section 18(5)). Section 27 provides that the Ministry shall pay compensation for the damage sustained by owner who applied for repossession his or her property prior to 30/10/2002 but to whom the property was not returned by that date. Finally, in 2003 the government adopted the Decision on the level of compensation due to owners for damage sustained, which fixed the amount of compensation at 7 Croatian kunas per square metre.

• Information provided by the Croatian authorities (29/09/2009): On 18/06/2008, the Constitutional Court issued a decision changing the case-law concerning payment of compensation to owners whose properties had been allocated to third parties by state authorities under the Takeover Act. In doing so, the Constitutional Court referred expressly to the European Court’s judgment in the Radanović case. According to this decision, whenever courts decide to award compensation to an owner of property allocated to third parties by the authorities under the Takeover Act, they must assess, in each individual case, whether an excessive burden had been imposed on the owner due the length of time during which they could not use the property. In particular, the Constitutional Court held that there are no grounds for courts’ referring to the government’s 2003decision fixing compensation at 7 kunas/m², as it was not a general normative act of binding character.

• Assessment: The Secretariat noted the measures taken by the Croatian authorities. The change in the Constitutional Court’s case-law appears to grant direct effect to the European Court’s judgment in Radanović. This is particularly encouraging. However, it remains to be demonstrated that the measures taken will ensure rapid enforcement of similar eviction decisions in the future.

• Information is thus awaited on measures taken or envisaged to ensure that eviction decisions rendered by Housing Commissions or courts under similar circumstances are rapidly and fully complied with. To assess the scope of the problem, information would be helpful concerning the total number of outstanding non-enforced eviction decisions on property allocated to third parties under the Takeover Act and the average period for their enforcement. Information would also be appreciated on the funds and resources available to ensure the authorities’ obligation to provide occupants of such properties with alternative housing or construction materials. 

2) Violation of Article 13:

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

3) Violation of Article 6§1: The issue of the excessive length of civil and enforcement proceedings is examined in the context of the Počuča (38550/02) and Cvijetić groups of cases (71549/01) (both in Section 4.2).

4) Publication and dissemination:The judgments of the European Court in the Radanović and Kunić cases have been published in Croatian on the Internet site of the Ministry of Justice (www.pravosudje.hr). They have been also sent to the Constitutional Court, the Supreme Court and to the courts dealing with the case. In addition, the Court’s judgment in the Brajović-Bratanović case was sent to the Ministry of Regional Development, Forestry and Water Management.  

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

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

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

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

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

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

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

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

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

These cases concern violations of the applicants' right of access to a court to obtain a determination of their civil claims filed between 1992 and 1995 for damage caused by the members of the Croatian army or police during the Homeland War in Croatia (1992-1995) or resulting from terrorist acts. In 1996, before the adoption of a final court decision at national level in these cases, legislation was adopted ordering all proceedings of this kind to be stayed until new provisions were enacted to regulate the matter. In 2003, legislation was adopted in this respect. This legislation provided for the resumption of civil proceedings which had been stayed in accordance with the legislation of 1996.

In all those cases the applicants successfully lodged complaints with the Constitutional Court about the length of proceedings in question and the lack of access to a court. However, the European Court found the amount of compensation awarded to the applicants at domestic level, which was approximately 15% of what the European Court was generally awarding in similar Croatian cases, to be manifestly unreasonable (violations of Article 6§1).

In this respect, the European Court observed that the Constitutional Court, while relying on the European Court’s judgment in the case of Kutić, awarded the applicant in the Milašinović case an inadequate compensation in the amount of 12 750 Croatian Kunas (HRK) (§13). The proceedings in the instant case were brought in 1994, while the Constitutional Court rendered its decision in 2004.

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

• Assessment: No other measure appears necessary.

General measures: The problem of the access to a court in similar situations was examined in the context of the Kutić group of cases (Final Resolution ResDH(2006)3). However, these cases did not concern violations due to inadequate compensation awarded by the Constitutional Court in respect of the lack of access to a court.

▪ Information received from the Croatian authorities (25/09/2009):

            1) Legislative measures: The new Courts Act entered into force in 2005. It introduced a new remedy in respect of excessive length of proceedings before ordinary courts immediately higher than the court before which the proceedings at issue had been conducted. When a court finds a complaint of excessive length substantiated, it sets a time limit for the lower court to make a decision in the proceedings at issue and award appropriate compensation. As a result of the introduction of this new remedy, complaint before the Constitutional Court has now become a subsidiary remedy in respect of the excessive length of proceedings and can thus only be lodged after exhaustion of the remedy before ordinary courts.

            2) Case-law concerning the amount of compensation awarded: The average amount of compensation awarded in similar individual cases varies between 4 000 HRK and 10 000 HRK. When deciding on the amount of compensation, the domestic courts will consider all circumstances of the individual case while taking into account economic and social standards in Croatia.

• Assessment: The legislative amendments of 2005 introduced certain additional remedies into the national legal system in respect of the excessive length of proceedings. However, it is noted that the violations in the present cases concern inadequate compensation awarded in respect of the excessive length of proceedings and the lack of access to a court in a specific context. In this regard, it is observed that nearly all domestic proceedings in these cases began in 1994-1995 and that the Constitutional Court rendered nearly all its decisions in this respect in 2004. Given the European Court’s findings in the Milašinović case, that the amount of 12 750 HRK was inadequate and considering that all other possible cases resulting from the same context would have the similar lengths of proceedings, it appears that the average amount of compensation between 4 000 HRK and 10 000 HRK awarded in similar cases would not be adequate.

• Information is thus expected on the measures taken or envisaged to guarantee the effectiveness of the remedy against the excessive length of the proceedings in question.

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

- 9 cases of length of civil proceedings – inadequate compensation awarded by domestic courts and lack of an effective remedy

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

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

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

22014/04           Kaić and others, judgment of 17/07/2008, final on 17/10/2008

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

9951/06            Oreb, judgment of 23/10/2008, final on 06/04/2009

28704/06           Rizman, judgment of 31/07/2008, final on 31/10/2008

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

40383/04           Vidas, judgment of 03/07/2008, final on 03/10/2008

The cases concern the excessive length of civil proceedings (violations of Article 6§1). Certains proceedings started as far back as in 1974 (Skokandić) or 1980 (Oreb) .When the European Court gave its judgments, the proceedings were pending in all cases except in the cases of Balen, Kaić and Vidas. In all these cases the applicants successfully lodged complaints with the Constitutional Court about the length of proceedings in question. However, the European Court considered that the compensation offered by the Croatian Constitutional Court was manifestly unreasonable having regard to the European Court’s case-law (§17 of the Jakupović judgment).

The Oreb and Kaić cases also concern the lack of an effective remedy (violations of Article 13). In the Oreb case, the European Court took into account that the applicants had not received sufficient compensation for the inordinate length of their proceedings and that the competent court had failed to comply with the time-limit set by the Constitutional Court to bring the proceedings to an end. The combination of these two factors in the particular circumstances of the Oreb case rendered an otherwise effective remedy ineffective. On the other hand, the European Court found in Vidas that the proceedings before the Constitutional Court on the applicant's complaint of the length of the civil proceedings lasted over three years. Consequently, the effectiveness of the constitutional complaint as a remedy for the length of pending civil proceedings was undermined by its own excessive duration. However, the European Court stressed that this conclusion did not call into question the effectiveness of the remedy as such (§39 in Oreb).

Individual measures:

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

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

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

            1) Violation of Article 6§1

▪ Information provided by the Croatian authorities (25/09/2009): The average amount of compensation awarded in similar individual cases varies between 4 000 and 10 000 HRK. When deciding on the amount of compensation, the domestic courts consider all circumstances of an individual case while taking into account economic and social standards in Croatia. Payment of the damages awarded takes place within three months; from the state budget.

• Assessment: It is noted that the violations in these cases concern the inadequate compensation awarded in respect of the excessive length of proceedings. It appears that the domestic courts take into account all circumstances of an individual case when deciding the amount of compensation for excessive length of civil proceedings. Prima facie, this practice is certainly compliant with the Court’s case-law. It also appears that the number of similar cases pending before the European Court has decreased. However, the Secretariat is not able at this stage to make a conclusive assessment as to whether the amount of compensation awarded in respect of the excessive length of civil proceedings in Croatia is adequate.

• Information is thus expected on further practice concerning the award of compensation in similar situations (examples of court decisions, information on any development in the case-law concerning the compensation for the excessive length of civil proceedings etc.).

            2) Violation of Article 13

▪ Information provided by the Croatian authorities (25/09/2009):

            (a) Legislative measures: The new Courts Act entered into force in 2005. It introduced a new remedy in respect of the excessive length of proceedings before ordinary courts immediately higher than the court before which the proceedings at issue were conducted. When a court finds that a complaint in respect of the excessive length of proceedings is substantiated, it sets a time limit for the lower court to decide in the proceedings and award appropriate compensation. Proceedings instituted in respect of the excessive length of proceedings are examined with high priority. As a result of the introduction of this new remedy, complaint before the Constitutional Court has become only a subsidiary remedy in respect of the excessive length of proceedings, so that such complaints may only be lodged before the Constitutional Court after the exhaustion of the remedy before ordinary courts.

            (b) Statistics: The Croatian authorities also submitted statistics illustrating the use of the remedy before ordinary courts. In the period 2006-2008, a total of 8 109 complaints of excessive length of proceedings were lodged before county courts. As of 01/12/2008, 5 291 of those cases have been decided. A violation has been found in 3 672 cases and damages awarded in the amount of 5.3 million EUR. In the same period, the Supreme Court received 3 998 complaints of excessive length of proceedings and rendered decisions in 2 579. In 1 496 cases, the Supreme Court granted the claims and awarded damages in the amount of 2.2 million EUR.

• Assessment: The amended law of 2005 introduced certain additional remedies in respect of the excessive length of proceedings. However, the European Court did not call into question the effectiveness of the remedy before the Constitutional Court as such. The reasons which led the European Court to find that this remedy was not effective in the present cases concern lower courts’ failure of the to comply with the time-limit set to end proceedings and/or the excessive length of the proceedings before the Constitutional Court.

• Information is thus expected on the measures taken or envisaged to guarantee the effectiveness of the remedies against the excessive length of the proceedings. In this respect it would be helpful to have statistical information on lower courts’ compliance with the time-limits set for bringing pending civil proceedings to an end, as well as on the average time required to complete proceedings before the higher courts, the Supreme Court and/or the Constitutional Court in respect of the remedies for excessive length of civil proceedings.

            (c) Publication and dissemination: The European Court’s judgments have been translated into Croatian and published on the website of the Ministry of Justice(www.pravosudje.hr). They have been sent out to the Constitutional Court, the Supreme Court and the local courts involved in each particular case.

                       - 12 cases of length of enforcement proceedings

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

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

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

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

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

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

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

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

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

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

25803/05           Siničić, judgment of 08/01/2009, final on 08/04/2009

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

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

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

In the Lukavica judgment, the European Court reiterated that a person who, like the applicant in this case, has obtained an enforcement title against the state should not be required to resort to enforcement proceedings in order to have it executed (§32).

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

The Omerović case also concerns the lack of an effective remedy against the excessive length of the enforcement proceedings (violation of Article 13). The European Court noted that at the time when the applicant lodged his application (2003), there was no remedy under domestic law in respect of the excessive length of enforcement proceedings (§43). However, the European Court held that as of 02/02/2005, a constitutional complaint became an effective remedy for the length of enforcement proceedings (§29); when the Constitutional Court changed its practice, accepting a constitutional complaint in respect of excessive length of enforcement proceedings, the latter expressly relied on the Court's case-law on the matter (§22).

The Lukavica and Siničić cases also concerns the violation of the right to peaceful enjoyment of possessions due to the non-execution of a friendly settlement and a court decision, both related to the return of the applicants’ vehicles (violations of Article 1 of Protocol No. 1).

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

Proceedings have been closed in the Kvartuč, Lukavica (29/01/2008), Mačinković (11/04/2006), Mahmutović, Omerović (25/10/2007) and Šoštarić (08/02/2008) cases but were still pending in the Mužević, Siničić and Šamija cases when the European Court gave its judgment. In the Mužević case, the European Court ordered the respondent state to secure by appropriate means the enforcement of the in-court settlement of 28/05/1986 and the judgment of 09/01/1989.

• Information is awaited on the state of the domestic proceedings in the Mužević, Siničić (§21) and Šamija cases and if appropriate on their acceleration.

General measures:

            1) Excessive length of enforcement proceedings

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

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

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

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

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

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

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

            3) Lack of an effective remedy in respect of excessive length of enforcement proceedings:

It appears that the European Court found that since 02/02/2005, a complaint before the Constitutional Court in respect of excessive length of enforcement proceedings has been an effective remedy (§29 in Omerović).

• Assessment: In view of this finding, no further measure seems necessary.

            4) Violation of Article 8: Measures taken in respect of the excessive length civil and enforcement proceedings are also relevant under this head. The European Court’s judgment in the Cvijetić case has been published and sent out to the courts concerned (see below).

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

5) Violation of Article 1 of Protocol No. 1: Measures taken in respect of the excessive length civil and enforcement proceedings are also relevant under this head. The European Court’s judgments in the Lukavica and Siničić cases have been published and sent out to the courts concerned (see below).

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

            6) Publication and dissemination: The judgments of the European Court in the Cvijetić and Pibernik cases have been published in Croatian on the internet site of the Government (www.vlada.hr); the judgments in the Lukavica, Mačinković, Mužević, Siničić and Šoštarić cases have been published on the web page of the Ministry of Justice (www.pravosudje.hr). Extracts of Cvijetić and Pibernik judgments were published in the legal magazine The Informer, Nos. 5226/04 and 5236/04. All judgments have been sent to the Supreme Court, Constitutional Court and the relevant courts concerned.

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

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

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

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

15233/05           Štokalo and others, judgment of 16/10/2008, final on 16/01/2009

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

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

In the Počuča and Božić cases the European Court recalled its case-law according to which special diligence is required in the examination of pension disputes. Smoje and Štokalo cases concern excessive length of administrative proceedings concerning denationalisation. The European Court also noted in the Božić case that the cause of the violation was a deficiency in the procedural system allowing for repeated remittals mandated by incomplete findings of fact (§36).

The Božić and Štokalo cases also concern the lack of an effective remedy in respect of the excessive length of administrative proceedings (violations of Article 13).

In this respect, the European Court found in the Štokalo judgment that the Constitutional Court, when deciding a constitutional complaint concerning the length of proceedings pending before the Administrative Court, did not take into consideration their overall duration as it excluded the period during which the case was pending before the administrative authorities (§64).

Individual measures: In the Počuča case the proceedings before administrative courts have been closed, while the Constitutional Court dismissed the applicant’s constitutional complaint on 12/03/2009. In the Božić case the proceedings were closed on 8/05/2007 after the rejection of the applicant's complaint by the Constitutional Court.

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

General measures:

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

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

▪ Information provided by the Croatian authorities (02/10/2009): The payments of compensations pursuant to the provisions of the Pension Fund Act of 2005 have been implemented as scheduled. The Croatian Pension Fund submitted that 2/3 of pensioners withdrew their complaints in order to participate in the Pension Fund, while 1/3 maintained their requests before administrative bodies. However, the number of administrative complaints before the Administrative Court concerning the right to compensation under the Pension Fund Act has significantly decreased. In 2006, 2007, 2008 and 2009 respective totals of 547, 163, 45 and 13 such complaints were lodged. Therefore the risk of new violations of the Convention concerning the excessive length of administrative proceedings on account of the application of the new procedure envisaged by the Pension Fund Act is significantly reduced.

▪ Assessment: It appears that the number of complaints lodged before Administrative Courts concerning compensation under the Pension Fund Act has significantly decreased. Thus, it could be expected that similar violations will not recur. However, the European Court also found violations in these cases in respect of the excessive length of administrative proceedings concerning denationalisation. Beyond that, the European Court noted in the Božić judgment that the cause of the delay was rather a deficiency in the procedural system allowing for repeated remittals mandated by incomplete findings of fact.

▪ Information is thus awaited on the possible reasons for the violation found in the Smoje and Štokalo cases and measures taken or envisaged to avoid similar violations, including the elimination of the system allowing for repeated remittals mandated by incomplete findings of fact.

            2) Effective remedy against the excessive length of proceedings before administrative organs:

▪ Information provided by the Croatian authorities (02/07/2007): By a decision of 20/06/2007, the Constitutional Court changed its case-law as regards the time to be taken in consideration when deciding on the length of administrative proceedings. Thus, following the case-law of the European Court, it established that in all future cases regarding the length of the administrative proceedings, the period during which the case was pending before the administrative authorities should also be taken into consideration.

▪ Assessment: no further measure appears necessary.

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

- 27 cases against Cyprus

4268/04            Panovits, judgment of 11/12/2008, final on 11/03/2009

This case concerns three separate violations of the applicant’s right to a fair trial due to the lack of legal assistance during police questioning; the use of the applicant’s confession obtained under police questioning at trial and the trial court’s confrontation with the applicant’s lawyer during the trial.

The European Court noted that as the applicant was a minor and not assisted by a legal guardian, his questioning by the police should have been done with due regard to his vulnerability. Therefore, “The lack of provision of sufficient information on the applicant’s right to consult a lawyer … constituted a breach of his defence rights.” (§73) (violation of Article 6§3c in conjunction with 6§1).

The Court also found that “the use in trial of the applicant’s confession obtained in such circumstances irreparably undermined his rights of defence” (paragraph 86) (violation of Article 6§1).

Finally, with regard to the trial court’s confrontation with the applicant’s defence lawyer, Mr Kyprianou, the European Court referred to its judgment in the case he had himself brought before it, Kyprianou against Cyprus (Application No. 73797/01) (1072nd meeting, December 2009), which related to the same incident.

During the proceedings the trial court engaged in various disagreements with the applicant’s lawyer, sentencing him to 5 days' imprisonment for contempt of court while he was conducting the defence. The European Court found that the trial court had failed to satisfy the requirements of subjective impartiality as the judges' personal conduct demonstrated that they did not succeed in detaching themselves sufficiently from the situation. Further, their interference with the conduct of the defence through the contempt proceedings and subsequent imprisonment of the applicant’s lawyer was disproportionate. The trial court’s “handling of the confrontation … rendered the trial unfair” (§101) (violation of Article 6§1)

Individual measures: The applicant submitted no claim for just satisfaction.

Following the trial, the applicant was convicted and sentenced to concurrent terms of 6 and 14 years in Nicosia Central Prison.

The European Court stated that the applicant should “be put in the position that he would have been in had the requirements of [Article 6] not been disregarded and that the most appropriate form of redress would in principle be trial de novo or the reopening of the proceedings, if requested” (§103).

• Information provided by the Cypriot authorities (28/04/2009): The applicant was released prior to the European Court’s judgment (on 04/11/2007) due to remission for good conduct under the relevant prison regulations. According to the authorities, if the applicant had not been released by the time of the judgment, he could have been released on the advice of the Attorney General to the President of the Republic asking him to release the applicant immediately or commute his sentence under Article 153.4 of the Constitution. 

On 01/06/2009 the applicant’s lawyer confirmed that as the applicant had been released, he sought neither a trial de novo nor the reopening of the proceedings.

• The Secretariat is assessing whether further individual measures are required, having regard to the fact that the applicant does not seek a retrial or reopening of the proceedings.

General measures:

1) Violation of Article 6§3c in conjunction with Article 6§1: The European Court considered that given the applicant’s vulnerability as a minor without a guardian, the authorities did not provide sufficient information on the applicant’s right to consult a lawyer. The Court noted that “the passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation” (paragraph 72).

2) Violation of Article 6§1 in relation to the use of the applicant’s confession: The European Court noted that the applicant’s conviction was based to a decisive extent on the confession obtained under police questioning stating: “The circumstances in which the confession had been taken were not addressed by the trial court and remain unclear” (paragraph 85).

3) Violation of Article 6§1 in relation to the trial court’s confrontation with the applicant’s defence lawyer: this issue is raised in the case of Kyprianou v Cyprus (Section 4.2).

• Information provided by the Cypriot authorities during bilateral meetings with the Secretariat in June 2009 is currently being assessed.

• Information is awaited on any further measures taken or envisaged.

39058/05           Kyriakides, judgment of 16/10/2008, final on 16/01/2009

39627/05           Taliadorou and Stylianou, judgment of 16/10/2008, final on 16/01/2009

These cases concern damage to the moral integrity and reputation of the applicants, senior officers of the Cyprus Police, due to the Supreme Court’s failure to provide adequately grounds for decision overturning the award of compensation for non-pecuniary damage sustained by the applicants following their unjustified dismissal by the state authorities (violation of Article 8).

In the Kyriakides case, the applicant was dismissed for negligent exercise of his duties without trial or disciplinary hearing, following the conclusion of an Independent Investigation Commission that two of his subordinate officers had been involved in the torture and ill-treatment of suspects. The subordinates in question were acquitted.

In the case of Taliadorou and Stylianou, criminal proceedings were brought against the applicants for torture and ill-treatment of suspects: the applicants were acquitted as there was no prima facie case against them. However, following the conclusions of an Independent Investigating Commission they were subsequently dismissed without trial or disciplinary hearing.

The applicants brought proceedings in the national courts seeking reinstatement and compensation for their dismissal. On appeal, the Supreme Court overturned the decisions awarding them damages.

The European Court noted that the applicants had never been convicted of the offences for which they had been dismissed. It found that due to their unwarranted dismissal the state authorities had affected the enjoyment of their private life by effectively prejudicing their moral integrity and reputation (§52 of the judgment in Kyriakides and §56 of the judgment in Taliadorou and Stylianou). By refusing to award the applicants damages, the Supreme Court denied the applicants relief in respect of damage caused by unlawful administrative acts, without sufficient explanation (§54 (Kyriakides) and §58 (Taliadorou and Stylianou)).

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

Following national proceedings, the applicants were reinstated in 1997.

• Assessment: no further individual measures appear necessary.

General measures:

• Information provided by the Cypriot authorities during bilateral meetings withthe Secretariat in June 2009 is currently being assessed.

• Information is awaited on any further measures taken or envisaged.

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

The case concerns the lack of impartiality of the Limassol Assize Court which in 2001 sentenced the applicant, an advocate, to 5 days' imprisonment for contempt of court while he was conducting the defence in a murder trial. The European Court found that the Assize Court failed to satisfy the requirements of objective and subjective impartiality. First, it was the judges criticised by the applicant who took the decision to prosecute; try the issues arising from the applicant's conduct; determine his guilt and impose the sanction. Second, the judges' personal conduct demonstrated that they did not succeed in detaching themselves sufficiently from the situation (violation of Article 6§1).

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

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

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

General measures:

            1) Violation of Article 6§1: The offence in question is set out in the Courts of Justice Law 1960 (as amended). Section 44(2) of the Law, which permits summary trial and punishment for contempt of court, has been amended. The amending legislation, which has been approved by parliament and was published in the Official Gazette of the Republic of Cyprus on 24/04/2009, contains four principal amendments:

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

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

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

(iv)        Under Section 44(9), lawyers appearing in proceedings before the court presenting a case on behalf of their client, producing evidence or examining witnesses, are not subject to contempt proceedings for disrespect by conduct or verbal communication. In such situations, actions will be prosecuted as disciplinary offences and may be referred to the Advocates’ Disciplinary Board.

            2) Violation of Article 10: The legislation adopted in 2009 amending the Courts of Justice Law 1960 contains a provision to ensure that, where a prison sentence is a possible sanction, the domestic courts must carefully balance the need to protect the authority of the judiciary against the need to protect the exercise of the right to freedom of expression.

3) Publication, dissemination and training of judges: The judgment of the European Court, with an explanatory note, was promptly sent out to the Supreme Court, the Bar Association (also published on its website: www.cyprusbarassociation.org), the Ombudsman, the Ministry of Justice and Public Order as well as the Human Rights and Legal Affairs Parliamentary Committees. The judgment was also translated and published in the Cyprus Law Journal of the Cyprus Bar Association, 2005, 1st issue, p 38 ff.

During bilateral meetings in Nicosia between the Secretariat and the Cypriot authorities in June 2009, the authorities confirmed that judges receive regular training on human rights issues. All judges attend such seminars in rotation and then provide training to their colleagues. Training on the new legislation would fall within this training programme for judges.

• Assessment: no further general measures appear necessary.

                        - 23 cases of length of judicial proceedings and of lack of an effective remedy

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

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

37885/04           Charalambides, judgment of 15/01/2009, final on 15/04/2009

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

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

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

21929/04           Douglas, judgment of 17/07/2008, final on 01/12/2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Individual measures: In all cases except those of Shacolas and Douglas, proceedings are closed.

• Information is awaited concerning the state of the proceedings in those cases.

General measures:

            1) Violations of Article 6§1:

Regulatory measures (in particular a series of circulars issued by the Supreme Court from 1995-2003) were adopted for the prevention of similar violations.

Several of the judgments from this group were promptly disseminated, with an explanatory letter, by the Human Rights Sector of the Government Agent to judicial authorities, the Ministry of Justice and Public Order, the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. Summaries of several of the judgments from this group were published in the Cyprus Law Journal of the Bar Association, 2006, 2nd issue. The Gregoriou judgment was published separately in a previous edition of the Cyprus Law Journal.  

During bilateral meetings in Nicosia with the Secretariat in June 2009, the Cypriot authorities provided information on a number of measures which have been taken, are currently under way or are proposed to be implemented:

Measures taken or under way:

-               a group of Supreme Court judges has been set up to monitor the problem of length of proceedings and evaluate the causes of excessive delay in civil proceedings;

-               one judge of the Supreme Court has been assigned to follow up statistics concerning older cases, and inform the Supreme Court at regular intervals on the progress of judicial proceedings;

-               the jurisdiction of single judges in the district courts has been increased;

-               disciplinary measures are taken against judges who do not comply with Supreme Court directions provided under the Rules of Procedure for timely issue of judgments. The competent disciplinary body is the Supreme Council of Judicature, composed of all Supreme Court judges. 

-               interest on compensation now runs from the cause of the action, encouraging litigants not to delay proceedings;

-               Judges attend regular seminars on human rights issues in rotation, subsequently feeding back information to other judges. The majority of judges are well informed of the European Court’s judgments and the problem of the excessive length of proceedings.

-               The stenotype system has been replaced to allow proceedings to be recorded digitally with respect to all assize courts;

-               There has been increase in the number of judges appointed to family and assize courts.

Proposed measures:

-               The Ministry of Finance is currently examining a request made to the Government by the President of the Supreme Court for the appointment of additional judges;

-               Further replacement of the existing stenotype system with digital recording of proceedings is envisaged;

-               Digitalisation of the Judicial Service will be implemented in two phases, with application first in the Supreme Court and Nicosia District Court, and subsequent extension to all domestic courts;

-               The Supreme Court, in co-operation with representatives from the Cyprus Bar Association, are reviewing the Civil Procedure Rules, with the aim of simplifying the rules to expedite proceedings.  Revision of the Civil Procedure Rules is entirely within the competence of the Supreme Court, which is expected to implement amendments by the end of July 2010.

-               There are plans to construct a new District Court of Nicosia. Other cities already have new district courts (Larnaca, Paphos, Limassol)

• Further information is awaited on the substance of the measures taken or proposed and the progress of their implementation.  Information would be useful on the current trends concerning length of judicial proceedings.

            2) Violation of Article 13: A draft bill has been produced with the direct aim of addressing the length of proceedings in civil cases and the absence of an effective remedy in this respect. The bill has been agreed to by the Ministry of Justice and the Law Commissioner and is currently pending before Parliament, where it will be examined by the Legal Affairs Parliamentary Committee. The bill has retrospective application and provides for cases which have suffered from unreasonable delay to be accelerated, or compensation awarded where the case is no longer pending.

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

A translation of the draft bill has been provided to the Committee of Ministers, and is currently being assessed.

• Information is awaited on the progress of the draft bill and the possibility of creating an effective remedy where excessive delay has occurred in criminal cases. In the context of the legislative process under way, the authorities' attention is drawn to Committee of Ministers' Recommendation Rec(2004)6 to member states on the improvement of domestic remedies and to measures adopted by other countries confronted with similar problems (see e.g. Final Resolutions ResDH(2005)60 on Horvat and 9 other cases against Croatia; ResDH(2005)67 on Jóri and 18 other cases against the Slovak Republic).

- 76 cases against the Czech Republic

- 2 cases concerning pre-trial detention

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

76576/01           Fešar, judgment of 13/11/2008, final on 06/04/2009

Both cases concern the applicants’ continued pre-trial detention without sufficient reasons to justify it. In the Smatana case, the applicant was detained for more than 2 years between 2000 and 2002; in the Fešar case, the applicant’s detention lasted almost 2 years between 1996 and 1998 (violations of Article 5§3).

The cases also concern the lack of prompt examination of the appeals lodged by the applicants against their continued detention, in particular delays in proceedings before the Constitutional Court which lasted almost 2 years in the Smatana case and 3 years and 9 months in the Fešar case (violations of Article 5 § 4).

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

Individual measures: Since 2003, the applicant in the Smatana case has been serving his prison sentence, from which was deducted the period he had spent in pre-trial detention. The period of pre-trial detention was also deducted from the sentence imposed on the applicant in the Fešar case, who was released on 18/05/1998 (§§ 14 and 16 of the judgment).

In the Smatana case, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage but not for pecuniary damage as it considered that the reduction of his prison sentence was a sufficient compensation. The applicant in the the Fešar case did not specify any claims for just satisfaction before the European Court which therefore made no award in this respect (§73 of the judgment).

• Assessment: no further individual measures appear necessary.

General measures:

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

• Assessment: no further general measures appear necessary.

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

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

3) Violation of Article 5§5: At the material time, Czech law did not provide, with a sufficient degree of certainty, compensation in cases where a violation of Article 5 of the Convention was found. On 27/04/2006 amendment No. 160/2006 to Act No. 82/1998 entered into force, which explicitly provides the possibility of compensation for pecuniary and non-pecuniary damage resulting from an unjustified pre-trial detention, in cases where criminal proceedings are stayed or end in an acquittal or a decision concerning the detention has been quashed as being unlawful. In order to allow applicants to benefit from this possibility, the plenary of the Constitutional Court adopted (on 06/05/2008) an opinion No. Pl.ÚS 25/08 to unify its jurisprudence on this matter. Accordingly, whenever the Constitutional Court grants a constitutional complaint challenging the lawfulness of detention, it also has to quash the decision on detention, regardless of whether the person concerned is still in detention or not.

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

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

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

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

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

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

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

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

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

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

Individual measures:

            1) Havelka and others: In 2009, the first applicant will be 59 and his children 15, 16 and 17 years. According to the information provided by the Czech authorities, the children are still in public care and their placement is subject to judicial review at six-month intervals pursuant to Section 46§3 of the Family Act. The President of the competent court, the Prague 10 District Court, promised to take into account the European Court's judgment when reviewing the situation of the children. Between November 2007 and July 2009, this court repeatedly requested specific reports from various institutions and persons to collect information on the children’s well-being and their contacts with the father. Although requested, no information was received from Mr. Havelka. Having taken into account the state of contacts between the children and their father, Mr Havelka’s housing situation and his attitude towards the children, the court concluded that Mr Havelka had still not created even very basic conditions for the return of the children and was quite indifferent, that the children themselves seemed sceptical about the possibility of returning to their father and that they benefited by the institutional care. Thus, despite a general preference for the natural family environment, any decision to change the current public care would go against the overall interests of the children and their own wishes.

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

In January 2008, the first applicant’s request for a rented flat in Varnsdorf, in the Děčín area where his sister lives, was dismissed on the grounds that he had previously been evicted for unpaid rent from a flat in Prague. His debts amount to 40 000 EUR (unpaid rent and interest rates, already accumulated at the time of the European Court’s judgment, see §40 of the judgment). In December 2008, Mr Havelka’s application for a municipal welfare flat was rejected by the Municipal Council of Prague 15, mainly because of his important debts. The possibility was mentioned of finding him temporary accommodation in one of the asylum houses: talks on this matter were held between representatives of the Ministry of Labour and Social Affairs and the Prague Archdiocese Charity.

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

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

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

The Czech authorities stated that in June 2007, the Ceske Budejovice Regional Court dismissed the applicants' request for a re-transfer of custody of their two youngest children on the grounds that the children have built strong emotional ties with the foster parents and that their outright removal would endanger the psychological development of the children. The applicants did not file a complaint to the Constitutional Court. Meanwhile, the authorities were working together progressively to restore ties between the two youngest children and the applicants and create conditions for their eventual reunion. The applicants had regular written contact with the two youngest children.

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

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

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

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

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

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

• Measures taken:

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

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

(c) Domestic case-law reflecting the European Court’s judgments: In its decision No. II.ÚS 838/07 of 10/10/2007 quashing the placement of a minor child in public care, the Constitutional Court referred extensively to the European Court’s case-law concerning measures leading to separation of children and their parents and declared that Section 46§1 of the Family Act reflected these principles. In a similar decision No. II.ÚS 1945/08 of 02/04/2009, the Constitutional Court noted inter alia that placement of a child in public care also amounted to an interference with the child’s personal liberty (the family environment being the child’s most natural “space of freedom”), which implied his/her right to be heard before the court in person. According to the authorities, these decisions clearly illustrate that the requirements of the European Court’s case-law are duly implemented at the domestic level.

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

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

A narrower action plan aimed at solving the specific problems identified by the European Court in the present judgments is to be prepared.

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

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

(g) Dissemination: A translation of the European Cour t's judgments has been disseminated to socio-legal protection agencies. The judgments were also presented to Constitutional Court judges at their plenary session.

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

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

• Assessment: The measures announced are welcome.

• Information is awaited on the implementation of the National Action Plan as well as on the progress of the further action plan announced (with the texts of these action plans). Information would be appreciated on budgetary means allocated and on the availability of qualified staff responsible for professional support and counselling for families. Statistics showing the number of children placed in public care since 2006, as well as examples of decisions in which courts grant direct effect to the European Court’s case-law, would be appreciated in order to assess the impact of the measures taken. Further information would also be useful on the review proceedings provided in Article 46§3 of the Family Act, in particular as to whether a formal decision (which could be appealed against) is given when the court concludes, in the review procedure provided in Section 46§3 of the Family Act, that the conditions for public care still exist.

The Deputies, 1.             recalled that in these cases the European Court found that the placement of the children in public care motivated only by material and economic grounds constituted a disproportionate measure with respect to Article 8 of the Convention; 2.             recalled that this problem seems to be of systemic character in the Czech Republic and therefore took note with interest of the information submitted by the Czech authorities concerning the general measures addressing this problem, and in particular the adoption by the Czech government on 13 July 2009 of the National Action Plan for transformation and unification of the care system for children at risk; 3.             invited the Czech authorities to provide further information on the general measures taken and/or envisaged to avoid placing children in public institutions on economic grounds, in particular on the impact of the measures already adopted and on the implementation of the National Action Plan; 4.             decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of clarification to be provided on the individual situation of the first applicant in the Havelka and others case, and information to be provided on general measures.

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

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

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

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

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

• Assessment: no individual measure appears necessary.

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

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

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

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

The authorities underline that, as regards hearing of the applicants in proceedings on their continued detention, the Czech Constitutional Court relies on the relevant case-law of the European Court. According to this court, a balance has to be achieved between detainees’ rights and the authorities’ interest in the progress of the criminal investigation, with regard to a possibly very high frequency of proceedings in which the lawfulness of the detention is examined. Contrary the European Court’s assertion in §44 of the judgment, the Constitutional Court had only declared that, while a personal hearing of the accused is compulsory and unconditional in proceedings concerning appeals against prosecutors’ decisions on the extension of detention, such requirement could be prone to conditions in the framework of proceedings on requests for release. A duty on competent courts to hear the accused personally each time the lawfulness of detention is challenged could impose an excessive burden on the state.

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

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

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

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

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

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

In the meantime, the applicant filed an administrative appeal against his detention in Velké Přílepy with the Prague City Court, alleging that as the Ministry of Interior had not decided on his asylum application within the time-limit set by Article 73§2 of the Asylum Act, he should have been transferred to an ordinary asylum centre which he would have been free to leave. The decision of that court finding that it lacked competence to examine such appeal and inviting the applicant to file a claim under the Code of Civil Procedure was later quashed by the Supreme Administrative Court.

This court held that the administrative appeal provided in Article 82 of the Code of Administrative Procedure was the only legal avenue available to the applicant, but did not satisfy the requirement of speediness. It also found, obiter dictum, that the Velké Přílepy facility could not be considered as a detached extension of the airport reception centre and that, consequently, the applicant should have enjoyed the rights of those placed in an ordinary asylum centre and his detention in that facility had no legal basis. On 09/01/2008, the proceedings were closed without any decision on the merits as the applicant had returned to Egypt.

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

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

• Assessment: no individual measure appears necessary.

General measures:

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

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

2) Violation of Article 5§4

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

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

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

38238/04           Forminster Enterprises Limited, judgment of 09/10/2008, final on 09/01/2009

The case concerns the continued seizure of shares belonging to the applicant company, resulting in the suspension of its right to dispose of them (violation of Article 1 of Protocol No. 1). This measure was ordered in 1997 by a prosecutor in the framework of criminal proceedings instituted against a third person. In 2003 the Olomouc Senior Prosecutor and the Prague High Court rejected the applicant company’s application for restoration of its rights and annulment of the seizure. In 2006 the courts decided to extend it until the end of the criminal proceedings, which are still pending. The applicant company’s constitutional appeal was pending when the Court adopted its judgment.

After a thorough analysis of domestic legislation and practice as they stood at the time, the European Court considered the seizure as being lawful and pursuing a legitimate aim. However, taking into account its duration (more than 11 years) and the considerable value of the assets concerned (representing 55% of the registered capital of a joint stock company), it found that an excessive burden had been placed on the applicant company as a fair balance had not been struck between its interests and the general interest.

Individual measures: The European Court reserved the question of just satisfaction and has not yet decided on it.

• Information provided by the Czech authorities (02/10/2009) On 20/06/2007, the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded on the grounds that it challenged only the extension of the prohibition imposed on the applicant company to vote at the general assembly of a joint stock company (which was bankrupt, so that only the judicial administrator of its assets was entitled to vote). The Constitutional Court declared that the appeal had not challenged the duration of the seizure of the securities and that the applicant company could at any moment ask the competent authorities to lift this measure.

Just before the end at first instance of the criminal proceedings in which the securities at stake were seized, the judicial administrator of the assets of one of the civil parties to these proceedings included the securities in the bankruptcy estate, acting at the request of the prosecutor who considered them as being the fruit of the offence. In the judgment of 18/08/2008, the first-instance criminal court did not validate this step but stated that it was not sure who was the legal owner of the securities and, consequently, that these should be put in escrow under the court’s supervision until the final decision of the civil court on this question. Nonetheless this judgment was quashed in June 2009 and the case is pending before the first instance court.

The seizure is thus still in force. The authorities underline however that the applicant company still has the right to ask that the seizure be lifted but has not used it (unlike the bankrupt civil party).

• Information is awaited on the state of the criminal proceedings in which the seizure in question was ordered, and on the fate of the shares seized.

General measures: The violation in the present case seems to constitute an isolated incident due to the duration of the seizure and the value of the shares concerned. Given the direct effect of the European Court's case-law in the Czech Republic, the publication and dissemination of this judgment appear to be sufficient for the execution of this judgment. Thus the Czech translation of the judgment was published on the website of the Ministry of Justice and the judgment was sent out, in July 2009, to the presidents of the regional and high courts as well as to the regional prosecutors for the purpose of larger dissemination.

In addition, even if the European Court had not questioned the lawfulness of the measure, the provisions of the Code of Criminal Procedure concerning seizure of items were amended as from 01/01/2002 (Act No. 265/2001), so that they are now explicitly applicable to securities such as shares and provide the review of such seizure by an ordinary court.

• Assessment: no other general measure appears necessary.

72034/01           Družstevní Záložna Pria and others, judgment of 31/07/2008, final on 26/01/2009

The case concerns interference with the right of the applicant, a credit union, to the peaceful enjoyment of its possessions due to its being placed in receivership without sufficient procedural guarantees against arbitrariness (violation of Article 1 of Protocol No. 1).

In January 2000 the public supervisory authority (the Office for the supervision of Credit Unions) placed the applicant credit union in receivership on the grounds of alleged illegal transactions. A receiver was consequently designated to replace the applicant credit union’s decision-making bodies which no longer controlled its business. In April 2002, after two renewals of the receivership, the supervisory authority withdrew the applicant credit union’s licence. Judicial appeals brought by the applicant credit union contesting the receivership orders were dismissed, on 21/06/2002 by the Prague High Court as unfounded and on 09/02/2004 by the Supreme Administrative Court on the ground that only the receiver had authority to lodge such a request under section 28(d) of the Credit Unions Act, as applicable at the relevant time. A third appeal was still pending before the Supreme Administrative Court when the European Court gave judgment, as well as the applicant credit union’s claim for damages, filed in April 2002 pursuant to Act No. 82/1998. On 28/04/2004 the Brno Regional Court declared the applicant credit union to be insolvent. The insolvency proceedings are still pending.

The European Court noted that the applicant credit union, once placed in receivership, had been denied by the receiver access to its business and accountancy documents and had subsequently been unable to challenge that denial before a court. It concluded that the interference was unjustified in that the state already exercised total control over its activities, thus reducing the risk at the origin of the receivership order.

The case also concerns the violation of the applicant credit unions right of access to a court. The Court noted in this respect that the decisions to place the applicant credit union in receivership had been made by a state authority answerable to the Ministry of Finance. Furthermore, when dealing with the applicant credit union’s request for judicial review in June 2002, the High Court had been prevented from assessing whether there had been any factual basis for receivership; it had limited its review to the question of whether the decisions challenged had been within the authority’s discretionary power, without examining whether they had been lawful. Thus, the determination of the applicant credit union’s civil rights was not subject to a full judicial scrutiny (violation of Article 6§1).

Individual measures: The European Court expressed no opinion on the question whether the statutory requirements for the imposition of receivership were met in this case or on the issue of whether the impairment struck a fair balance between the rights of the applicant credit union and the demands of the general interest of the community (see §95 of the judgment). The insolvency proceedings, the proceedings for damages and on the third application for judicial review were pending at the time of the delivery of the European Court’s judgment. Furthermore, the European Court reserved the question of just satisfaction while awaiting a possible friendly settlement between the parties. The judgment on this question has not yet been adopted.

General measures:

1) Violation of Article 6§1: Following the Constitutional Court’s judgment of 27/06/2001 (No. 276/2001) repealing Part V of the Code of Civil Procedure and declaring it incompatible with Article 6, the Code of Administrative Court Procedure (Act No. 150/2002) was enacted (entry into force on 01/01/2003). It replaced Part V of the Code on Civil Procedure and reformed administrative judiciary so that administrative courts have full jurisdiction as required by Article 6§1 (see §§ 68-70 and § 109 of the judgment).

• Assessment: no further general measure appears necessary.

2) Violation of Article 1 of Protocol No. 1:

a) Legislative changes: Significant legislative modifications have been adopted since the facts of the case. First of all, Act No. 57/2006 (entry into force 01/04/2006) amended the Credit Union Act and inter alia removed sections concerning receivership. Placement of a credit union in receivership is no longer possible and there is thus no risk of similar violations nor need for further measures. Nevertheless, the possibility of placement in receivership still exists for financial market actors other than credit unions, such as banks, investment or insurance companies. The relevant legislation (Banks Act, Collective Investment Act, Insurance Act, etc.) now explicitly provides that statutory bodies of these bodies are not prevented from lodging appeals against imposition of receivership. Concerning the question of right of access to documentation, the authorities note that this right may be inferred from general principles of Administrative Code (Act No. 500/2004).

When an administrative decision is based on such documentation, the documentation then becomes part of the file and access to it is explicitly provided for any person who is party to the proceedings or has legal interest in the proceedings.

b) Publication and dissemination: The European Court’s judgment has been translated into Czech and sent out to the relevant authorities, including the Constitutional Court, the Supreme Administrative Court, the Czech National Bank and the Ministry of Finance.

• Assessment: no further general measure appears necessary.

                        - 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, visiting rights, 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 were pending in September 2008.

• 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: Acceleration of court proceedings is an active priority of the Czech Ministry of Justice and constitutes an important pillar of the Justice Reform Concept for 2008-2010. The following measures have been adopted so far:

(a) Amendments to the Code of Civil Procedure: Certain procedural rules were amended by laws Nos. 30/2000 (entry into force on 01/01/2001) and 59/2005 (entry into force on 01/04/2005) so as to diminish the workload of judges and to make procedure more concentrated. First, the rules applicable to the partiality of judges have been modified so that, inter alia, 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 the parties may raise the issue of partiality against a judge only in the first hearing held by this judge.

Secondly, an appeal is possible in all cases unless the value at stake is minor (less than 2.000 CZK, about 75 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.

On 01/10/2008, the Code of Civil Procedure was amended with a view to ensuring special diligence in family cases, speedy decision-making in proceedings concerning children and the possibility of mediation and peaceful settlement of disputes between parents (see also the Reslová group, 7550/04, 1078th meeting, March 2010).

The Code of Civil Procedure was also amended in depth by Law No. 7/2009 (entry into force on 01/07/2009), with a view to simplifying procedures and preventing delays. One of the principal changes is the new system for serving court documents, which now more relies on the “presumption of service” and make parties more responsible for the existence of a delivery address. Thus, provided that statutory conditions have been met, a document is presumed to have been served even if, in fact, the addressee did not acquaint himself with it. To mitigate the harshness of such system, the court may decide upon the party’s motion that the service was ineffective if there are excusable reasons which prevented the addressee from acquainting himself with the document being served. Another change concerns the introduction of the “preparatory hearing” intended to make the proceedings more concentrated so that the court can decide on the case in a single hearing. The burden placed on judges should also be lowered because of the significant simplification of recording (audio or audiovisual records of hearings will be taken henceforth), the reduced need of substantiation of certain decisions and the transfer of powers in inheritance proceedings to notaries.

(b) Electronic acts and documents, development of e-justice: On 01/07/2009, Act No. 300/2008 on Electronic Acts and Authorised Document Conversion entered into force, introducing electronic delivery of documents via data mailboxes which must be used by public authorities and may be used by legal or natural persons who decide to set up such mailboxes. E-justice is also being developed to simplify certain acts via electronic communications. Thus, the e-Mailroom project, launched in October 2007 makes it possible to submit documents in electronic form via the courts’ websites. An electronic form and decision were also introduced for payment orders (given in summary proceedings). Other online applications are available providing the public with the latest information on proceedings and enabling parties to follow the handling of their case.

(c) Amendment to Law n° 6/2002 on courts and judges: On 01/10/2008 a change was introduced to the system of proceedings on judges’ disciplinary transgressions (which also include unjustifiable delays in handling with cases). Henceforth, disciplinary proceedings will only take place before one instance, the Supreme Administrative Court. Moreover, a limited term of office was introduced for presidents and vice-presidents of courts to improve their administration.

(d) Changes in courts’ staffing and working methods: Since 2007, a project called Support for Work in Mini Teams has been implemented in practice, with a view to making courts’ working methods more effective. Each judge should thus have at his disposal a mini team of court officials who will carry out administrative work. Related to this is the retraining of the courts’ administrative staff and a transformation of the education of justices’ clerks who are now in charge of simpler judicial matters (including proceedings involving children). On 01/07/2008, a similar position of clerks was introduced in public prosecution offices.

(e) Supervision by the Ministry of Justice: The Ministry of Justice monitors a broad range of information to facilitate assessment and analysis of the length of proceedings and also conducts inspections at the courts, in particular those which appear to present problems on the basis of statistical investigations. As a result of such inspections, recommendations may be made to bring disciplinary proceedings or to reprimand judges or additional supervisory tasks may be given to courts’ presidents.

(f) Assessment and statistics submitted by the Czech authorities on 02/10/2009: According to the Czech authorities, no immediate effect can be expected from these measures as their efficiency will appear later. Nevertheless, due attention will continue to be devoted to this area and further measures will be adopted if necessary. Some improvements can already be detected in the following statistics: Since 2005, proceedings in civil cases have been shortened by 32 days (7%) on average. Proceedings concerning custody and other children matters have been shortened by 33 days (16%) on average; in 2008, 72% of these cases were concluded within 6 months and 90% of them within one year. Since 2006, private-law cases as a whole (including labour and commercial matters) have been shortened by 38 days (7%) on average. Concerning criminal cases, 56% were concluded within 6 months in 2008, 11% lasted more than 24 months.

The Czech authorities therefore consider that they have performed all obligations arising from the European Court’s judgments finding violations of Article 6§1 on the grounds of excessive length of proceedings.

Assessment: It is to be noted that the Czech Ministry of Justice pays particular attention to the problem of the length of proceedings and that the statistics submitted reveal a positive trend. Nevertheless, as long as the Committee of Ministers continues to examine the question of effective remedy, recent statistics confirming this trend towards improvement would be appreciated.

            2) Effective domestic remedy against the excessive length of proceedings: Law No. 192/2003 (entry into force on 01/07/2004) introduced a new Section 174a to Law No. 6/2002 on courts and judges. 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.

However, concerning the preventive remedy provided in Section 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 had already been 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). According to the Czech authorities, this shortcoming was rectified by amending section 174a on 01/07/2009. Since then, an application to set a deadline for taking a procedural action is no longer conditional on filing the hierarchical remedy.

The amendment also enabled the court concerned by such application to carry out the procedural actions requested within 30 days without bringing the application to the higher court.

• Information would be useful on the practical functioning of the preventive remedy (examples of decisions, measures taken).

            3) 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.

- 5 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.

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

The case concerns the violation of the right to freedom of expression of the applicants, a freelance journalist, the former editor-in-chief (now deceased) of a publishing company and the publishing company, against whom a civil court found that they had invaded the privacy of others. On 21/11/2000, the Supreme Court ordered the applicants to pay damages because of a newspaper article the first applicant had written in 1997 concerning criminal proceedings pending against a business-woman accused of fraud against the social security authorities and insurance companies.

The European Court observed that coverage of the criminal case in the article had been based on public facts, concerned a matter of legitimate public interest and its purpose had been to contribute to a public discussion. It noted furthermore that the Supreme Court had failed to analyse the significance of several elements and that the grounds relied on, although relevant, were thus not sufficient to justify the interference in terms of a “pressing social need” (violation of Article 10).

Individual measures: The European Court awarded the applicants just satisfaction in respect of both non-pecuniary and pecuniary damages, including all the sums they had been ordered to pay.

• Assessment: no individual measure appears necessary.

General measures: The European Court found that the Supreme Court had not convincingly established the “necessity” of the restriction of the exercise of the freedom of expression, as it had not given sufficient reasons to justify that ordering the applicants to pay damages responded to a “pressing social need”. The violation found derives therefore from a national court’s failure to take into account the criteria set out by the Convention with regard to freedom of expression.

A summary of the European Court’s judgment in Finnish has been published in the Finlex legal database (www.finlex.fi). The judgment has also been sent out to the relevant national authorities, including the Supreme Court.

• Information is still awaited on other measures which might be envisaged to prevent similar violations.

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.

• Information is awaited in order 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).

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

The case concerns the unfairness of criminal proceedings instituted against the applicant who was unable to argue fully and in due time his allegations that he had been entrapped by the police into committing the drug offences he was charged with (violation of Article 6§1).

The European Court noted in particular that by the refusal to disclose the telephone metering information concerning the applicant’s telephone, confirmed by the court under the Coercive Measures Act, the police had denied him the opportunity to prove that the drugs had been ordered by a person being held in custody who had been incited by the police. No public interest grounds had been advanced for not revealing to the applicant the metering information concerning his telephone calls. Consequently, the courts had not, any more than the defence or the public prosecutor, had knowledge of the contents of that telephone metering information and they had therefore not been in a position to monitor the relevance to the defence of the withheld information. The decision-making procedure had thus failed to comply with the requirements of fairness.

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

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

According to Chapter 31 of the Code of Judicial Procedure, extraordinary appeals may be lodged against final decisions if, inter alia, “a procedural error has been committed which may have had an effect on the decision”. This provision allows the applicant to request the reopening of criminal proceedings found to violate the Convention, if he wishes to do so.

The applicant submitted no request regarding individual measures to the Committee of Ministers.

• Assessment: No further measure appears necessary.

General measures: At the material time, national legislation did not contain any provisions on the use of undercover transactions or on the use of undercover agents (§ 56 of the judgment).

            1) Legislation adopted: The Police Act was amended in 2001, so that it now includes explicit provisions on certain unconventional preventive methods and investigative techniques, including undercover operations and induced deals (§29 of the judgment).

On 01/04/2008, the revised decree (No.174/2008) of the Ministry of Interior on arranging and supervising information gathering by the police took effect, which regulates the decision-making on and the arrangement, use and supervision of, the means used by the police to gather and protect information, including undercover activities and technical surveillance.

On 07/07/2008, the Police Act and the Coercive Measures Act were completed with the new regulation of the Ministry of Interior on arranging, using and supervising secret information gathering by the police, which concerns inter alia access to such information.

Furthermore, the Act on the Openness of Government Activities (No. 621/1999) provides that any person whose right, interest or obligation in a matter is concerned shall have the right of access, to be granted by the authority which is considering or has considered the matter, to the contents of a document which is not in the public domain, if they may influence or may have influenced the consideration of his/her matter.

            2) Measures planned: In March 2007, a committee was appointed to prepare an overall reform of the Criminal Investigations Act, the Coercive Measure Act and the Police Act. In May 2009, the Ministry of Justice received the committee’s report which will serve as a basis for drafting a governmental proposal on new acts. The Bill should be submitted to the Parliament in spring 2010. According to the report, the Criminal Investigations Act should give parties a right of access to what has appeared during the investigation, assuming that it may not cause damage to the investigation. The Coercive Measures Act should provide that at the conclusion of the pre-trial investigation, the suspect must be informed of undercover actions and coercive measures related to him, such as the telephone metering, and all irrelevant information gathered must be destroyed. If the pre-trial investigation has not ended within a year calculated from the moment the use of coercive measure had ceased, the suspect must nevertheless be notified, unless the court decides otherwise.

• Information is awaited on the development of the legislative process under way and on the final legislative framework concerning access of the accused to all information available to the police, which is relevant for his/her defence.

            3) Publication and dissemination: The judgment of the European Court was published in the legal database Finlex (www.finlex.fi). A summary of the judgment in Finnish has been published in the same database. Moreover, the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament / Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice and Interior, the office of the Prosecutor General, the Helsinki District Court and the Helsinki Appeal Court.

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

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

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

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

• Assessment: No further individual measure appears necessary.

General measures:

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

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

2) Length of the proceedings: See the Kangasluoma group (48339/99) (Section 5.1).

- 27 cases against France

5608/05            Renolde, judgment of 16/10/2008, final on 16/01/2009[16]

70204/01           Frérot, judgment of 12/06/2007, final on 12/09/2007[17]

                       - Case concerning freedom of expression

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

This case concerns a breach of the applicant's right to freedom of expression due to findings against them in proceedings for defamation, by judgment which became final in 2002, under the terms of Article 29 to 32 of the Law of 29/07/1881 on the freedom of the press (violation of Article 10).

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.

Individual measures: The applicant was ordered in criminal judgments to pay fine and damages. He 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 applicant 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 applicant 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: It is the grounds relied upon by the domestic courts in finding against the applicant (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 at the 1059th meeting (June 2009), with which the present case present similarities.

However, this case raises in particular the 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.

9090/06            Blandeau, judgment of 10/07/2008, final on 01/12/2008[18]

- 5 cases mainly concerning the right of access to a court to challenge search and seizure measures undertaken by the tax authorities[19]

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

10447/03           Maschino, judgment of 16/10/2008, final on 16/01/2009

2058/04            Société IFB, judgment of 20/11/2008, final on 20/02/2009

65399/01+        Clinique des Acacias and others, judgment of 13/10/2005, final on 13/01/2006[20]

- 2 cases concerning the equality of arms in criminal proceedings (extension of the time-limit in which the prosecutor could make an appeal, without a possibility for the applicant to lodge a cross-appeal)[21]

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

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

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

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

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

• Assessment: no further measure appears necessary.

General measures:

1) Judges’ obligation to give clear the reasons for their judgments so that appeal may be lodged in due time: In the criminal field, Article 485 of the Code of Criminal Procedure provides that the tribunal correctionnel must give the reasons for its judgments. It also provides that judgments must be read out at a hearing – at least the operative part of the judgment, and that the operative part must indicate the offences of which the person has been convicted, the sentence and the legal provisions applied, as well as the civil aspects of the conviction.

The written text of the judgment must always be deposited by the court registry within three days of the pronouncement of the judgment, although failure to respect this rule is not sufficient ground for having the judgment annulled. However, the government indicated before the European Court that in spite of these provisions, in practice “it can happen (…) that the full written version of the judgment is prepared only after the parties’ decision to lodge an appeal” (§35) and that “the workload of court registries does not always make it possible for them to finish judgments before expiry of the time-limit for appeal” (§38).

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

2) Details concerning the possibility of lodging an appeal as an interim measure. At the material time, lodging an appeal as an interim measure was not without risk, since doing so opened the door to a cross-appeal from the prosecution. Withdrawal of the appeal had no effect on the cross-appeal, and the appellate court might deliver a judgment either in favour or against the defendant, there being no guarantee that a decision at appeal could not aggravate the defendant’s situation, as is the case where there is no cross-appeal. However, a law of 15/06/2000 now provides that cross-appeals – including those introduced by the prosecution –are voided if the defendant retracts their appeal within a month of its being lodged.

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

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

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

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

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

The European Court found that the wording of Article 173 CCP made it impossible to determine with certainty whether or not a separate declaration was required for such a motion to be admissible. However, as the Court refrains in principle from itself taking a view on factual elements underlying national courts’ decisions, it took the domestic courts’ position (i.e. that persons under indictment are normally obliged formally to declare their applications to the registry, simultaneously with their submission and registration) as a given. However, in the particular circumstances of the present case, and especially in the light of the formalities that the applicant’s counsel had accomplished and the clarity of the application submitted, the Court considered that the registrar, given his role as the judicial official responsible for guaranteeing procedural orthodoxy might, when accepting the advocate’s submission, at least have drawn his attention to the procedure to be followed. Accordingly, the Court concluded that the domestic courts had acted with excessive formalism with regard to the procedural requirements in respect of the applicant’s motion.

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

56802/00           Baumet, judgment of 24/07/2007, final on 24/10/2007[22]

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

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

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

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

General measures:

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

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

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

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

            2) Violation of Article 6§3c.: This case presents similarities to that of Poitrimol (Final Resolution CM/ResDH(2007)154 of 19/12/2007), closed in view of the evolution of the case-law before the national courts. The Court itself stressed the contribution of the Dentico judgment, delivered by the Plenary Assembly (Assemblée plénière) of the Cour de cassation on 02/03/2001 (i.e. after the present application to the European Court). According to this judgment, “the right to a fair trial and the right of every defendant to be assisted by counsel mean that a court may not try a defendant who fails to appear in court and who is not excused without hearing counsel if present at the hearing to defend him”.

• Assessment: No further measure is awaited.

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[23]

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

20127/03+        Arnolin and others and 24 other cases, judgment of 09/01/2007, final on 09/04/2007[24]

31501/03+        Aubert and others and 8 other cases, judgment of 09/01/2007, final on 23/05/2007

954/05              Chiesi S.A., judgment of 16/01/2007, final on 16/04/2007[25]

12106/03           SCM Scanner de l’Ouest Lyonnais and others, judgment of 21/06/2007, final on 21/09/2007[26]

- 6 cases against Georgia

23204/07           Ghavtadze, judgment of 03/03/2009, final on 03/06/2009

9870/07            Poghossian, judgment of 24/02/2009, final on 24/05/2009

The case of Poghossian concerns degrading treatment suffered by the applicant due to the lack of medical treatment of the hepatitis C, while he was in detention (violation of Article 3).

The case of Ghavtadze concerns degrading treatment suffered by the applicant on account of the authorities failure to comply with their obligation to protect his health during his detention and to provide him with appropriate treatment for his viral hepatitis C and tuberculosis pleurisy (violation of Article 3).

Noting that almost forty applications concerning the lack of medical care in Georgian prisons were now pending before it, the Court found that there was a systemic problem concerning the administration of adequate medical care to prisoners infected, inter alia, with viral hepatitis C. It considered this to be an aggravating factor in respect of Georgia’s responsibility under the Convention, but also a threat to the effectiveness of the Convention system. Consequently, it invited Georgia to take legislative and administrative steps without delay to prevent the transmission of viral hepatitis C in prisons, to introduce screening arrangements for this disease and to ensure its timely and effective treatment.

Individual measures:

1) Poghossian case: As the applicant submitted no claim for just satisfaction within the required time, the Court held that there was no need to make an award under Article 41. Moreover, the applicant has served his unconditional prison sentence and was therefore released on 5/12/2008.

2) Ghavtadzecase: The Court stated that in this case the very nature of the violation found left no real choice as to the measures required to remedy it. Thus, given the particular circumstances of the case, the Court considered that the respondent state must guarantee, at the earliest possible date, the admission of the applicant to a hospital able to provide him with adequate medical treatment for his viral hepatitis C and tubercular pleurisy

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

• Information provided by the Georgian authorities: On 3/04/2009, the Head of the Department of State Representation before International Courts (Ministry of Justice) wrote to the Head of the Prisons Department (The Ministry of Penitentiary, Probation and Legal Aid Issues) drawing his attention to the Court’s judgment, asking him to take the measures required by the Court’s judgment and recalling the binding nature of European Court judgments. On 18/06/2009, the Head of Department of the State Representation before International Courts sent another letter to the Head of the Prisons Department inquiring about the specific issues concerning the applicant (see reply below) and drawing attention to the conclusions of the Court that there was a systemic problem concerning the administration of adequate medical care to prisoners infected, inter alia, with viral hepatitis C (see reply on this point under General measures).

In reply, the prison services indicated that the applicant had been admitted to the Department of infectious diseases of the penitentiary hospital on 23/04/2007 and is being treated there. Upon arrival, the applicant underwent medical tests and a diagnosis was made (exudative pleurisy and acute type C hepatitis). The applicant received treatment against tuberculosis and, when his state of health permitted it, he was also treated against hepatitis C. Furthermore he is seeing a psychiatrist. The tuberculosis treatment ended on 13/04/2009, and the applicant was offered treatment against Hepatitis C. He first refused this treatment, arguing that he had to be psychologically prepared. When he was last offered the treatment on 18/06/2009, he refused to start treatment immediately and indicated that he would start treatment on 2/07/2009.

At the 1065th meeting (September 2009), the representative of Georgia stated that on 31/08/2009 Mr. Ghavtadze had accepted treatment for hepatitis C. The applicant is periodically subject to medical examination and, if necessary, will be transferred to a specialised private hospital. This has not been deemed necessary so far. 

During the debate the Secretariat stated that, for the Committee of Ministers to decide to leave it in the future to domestic authorities to monitor the applicant’s situation, the Georgian authorities must inform the Committee of the extent to which his current medical care corresponds the measures prescribed by the Court, of measures taken to ensure that, in the light of the evolution of his state of health, medical advice is followed appropriately rather than hindered (for example by untimely discharge from hospital or interruption of the treatment) and on the extent to which the doctor/patient relationship has been protected.

No further information concerning individual measures has been received since the 1065th meeting.

General measures:

1) Poghossian case: The Court pointed out that under Article 3 of the Convention it was not enough to have the applicant examined and a diagnosis made. To protect a prisoner’s health, it was essential to provide treatment corresponding to the diagnosis, as well as proper medical supervision. The Court accordingly found it unacceptable that the applicant’s repeated requests for adequate and effective treatment had been left unanswered or ignored.

2) Ghavtadze case: The Court noted that the applicant had been hospitalised twice and sent back to prison without medical authorisation. The Court found that it is not compatible with Article 3 of the Convention that prisoners are only hospitalised when symptoms reach their height and then sent back, without having recovered, to a prison where they cannot benefit from care. The Court therefore stated that the withdrawals of the applicant from the penitentiary hospital (on 10/02 and 31/03/2007) were not in conformity with this provision.

• Information provided by the Georgian authorities: On 25/06/2009, the Ministry of Corrections, Probation and Legal Assistance and the Ministry of Health and Social protection issued an order concerning a strategy for medical treatment of prisoners infected with hepatitis C. An action plan implementing this strategy is currently being prepared.

This strategy provides:

- the improvement of the level and quality of information given to penitentiary staff and to prisoners on hepatitis C;

- the study of the epidemic situation in prisons (medical examination and test for each new prisoner and for each person already in detention);

- placement in a specialised institution of sick prisoners who accept medical treatment after being informed of the side effects;

- implementation and the follow-up of treatment; maintenance of a medical file given to prisoners on recovery.

At the 1065th meeting (September 2009), the Representative of Georgia added that Prison n° 5 of Tbilisi, in which Mr. Ghavtadze had been imprisoned at the material time and which was the subject of much criticism, had been demolished in 2008 and replaced by a new building, equipped with a modern infrastructure and in which conditions of detention are in conformity with international standards. The prison hospital in which the applicant was placed in 2007 has been replaced by a new hospital, which opened on 28/11/2008 and has modern equipment and qualified medical staff. The creation of new hospitals is part of the reform of the prison system. Finally, the former Prison Department of the Ministry of Justice had been replaced by the Ministry of Corrections, Probation and Legal Assistance, which has adopted a programme of reforms. In conclusion, the Representative of Georgia suggested that he should report quarterly to the Committee on progress made in the adoption of individual and general measures required by these judgments.

In its decision the Committee of Ministers invited the Georgian authorities in particular to present promptly a detailed action plan on general measures taken and envisaged to address the structural problem identified regarding the quality of medical treatment in detention and to ensure that detainees placed in hospital cannot be removed without the express authorisation of the doctor in charge. The importance of guaranteeing an effective remedy within the meaning of the Convention was recalled. Lastly, the Georgian authorities were invited to take particular account when drafting this action plan of the European Prison rules and of all relevant recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

• Information provided by the Georgian authorities since the 1065th meeting:

The European Court’s judgments in Ghavtadze and Poghossian were published in the Official Gazette of 21/10/2009, No. 72.

A provisional action plan for the treatment of prisoners with hepatitis C has been adopted (this action plan is available upon request). It takes up the four objectives mentioned in the Order on a strategy for medical treatment of prisoners infected with hepatitis C and indicates measures to be adopted. It covers a planning period from 2009 to 2011. It should be financed by the state budget, international donor organisations and NGOs. It will be carried out under the supervision of the Ministry of Corrections, Probation and Legal Assistance and of Department of the State Representation before International Courts of Human Rights.

• Provisional assessment: this action plan is currently being assessed. It should be noted that it deals with treatment of prisoners infected with hepatitis C but does not appear to take into account infectious illness as a whole and in particular complex situations resulting, as in the case of Ghavtadze, from the combination of several infectious conditions.

• Information is still awaited on existing or envisaged procedures to ensure that detainees placed in hospital cannot be removed without the express authorisation of the doctor in charge, and on the existence of effective remedies , within the meaning of the Convention, for complaining about the absence of adequate treatment in prison.

The Deputies, 1.             noted that the provisional action plan presented by the Georgian authorities provides prevention measures and screening measures for hepatitis C, invited the Georgian authorities to widen the action plan to include adequate treatment for contagious illnesses in general and to keep the Committee of Ministers informed of the other measures under way in this field; 2.             recalled that general measures are awaited to ensure that detainees placed in hospital cannot be removed without the express authorisation of the doctor in charge and reiterated in this context the importance of guaranteeing the effectiveness of the existing recourse procedure in this field; 3.             took note of the information provided at the meeting by the delegation on the applicant’s state of health and invited the delegation to specify how medical advice on the treatment needed by the applicant will effectively no longer be hindered; 4.             decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of updated information on the applicant’s situation in the Ghavtadze case and the action plan completed.

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 .

• The following information is awaited:

- What is the legislative and regulatory framework applicable to situation such as that described in the present judgment; in particular, are penalties provided for agents of the security forces who refuse to protect individuals requesting it?

- What is the Georgian authorities’ assessment of the Jehovah’s Witnesses’ situation today? 

- 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.

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.

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.

                       - 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.

- 1 case against Georgia and the Russian Federation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            As regards Georgia:

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

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

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

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

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

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

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

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

            As regards the Russian Federation:

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

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

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

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

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

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

- 14 cases against Germany

10597/03           Ommer No. 1, judgment of 13/11/2008, final on 13/02/2009

26073/03           Ommer No. 2, judgment of 13/11/2008, final on 13/02/2009

The cases concern the excessive length of various criminal proceedings on charges of fraud against the same applicant concerning his business activities (violation of Article 6§1).

In the case of Ommer (No.1), proceedings concerning the DETAG investment trust corporation began on 19/02/1987 and ended on 24/09/2002 with the Federal Constitutional Court’s refusal to admit the applicant’s constitutional complaint about the excessive length of the criminal proceedings following his acquittal (final on 4/02/2002). The proceedings thus lasted for more than 15 years and 7 months (at the investigation stage and 3 levels of jurisdiction).

In the case of Ommer (No.2), the investigation proceedings against the applicant concerning property funds of the IHV company began on 6/12/1990 and ended on 3/02/2003 with the prosecutor’s decision to discontinue the proceedings. They thus lasted for approximately 12 years and 2 months.

The European Court noted in both cases that the applicant had not lost his victim status as German law did not provide adequate compensation for the excessive length of proceedings. In the Ommer (No.1) case, the domestic courts had acknowledged that the duration had been excessive. However, his sentence could not be reduced as he had been acquitted. Moreover, the reimbursement of certain legal fees and of loss of earnings of some 7 300 EUR was only a consequence of his acquittal and did not to provide compensation for the protracted length of proceedings against him.

As regards the Ommer (No.2) case, adequate redress had not been available because the proceedings had only been discontinued, and the applicant could not or no longer be found guilty of having committed a crime.

Individual measures: In both cases the proceedings are over and the European Court awarded just satisfaction in respect non-pecuniary damage. Under the head of pecuniary damage the applicant claimed that the length of proceedings had damaged his reputation and had occasioned the loss of customers, staff and the co-operation of several banks which had caused considerable losses of profit, resulting in the DETAG’s insolvency in 2002.

The Court noted in this respect that it could not be excluded that the length of the proceedings caused him loss of profit which he would not have suffered had the proceedings been ended sooner with the same outcome (the applicant’s acquittal or the discontinuation of the proceedings, respectively). However, the Court was unable to assess even approximately the amount of damage suffered by the applicant and could not speculate about it.

• Bilateral contacts are underway to clarify whether further individual measures are necessary, in particular whether the applicant may submit his claims before domestic courts.

General measures:

            1) Lack of staff: The European Court found that unreasonable delays occurred before the Cologne investigation authorities and Regional Court due to lack of staff (see §55 of the Ommer (No.1) judgment).

(a) Cologne Public Prosecutor’s office: The German authorities have indicated that in 2003 a special division composed of highly qualified experts was created in the Cologne Public Prosecutor’s office to deal with organised economic crimes and large-scale criminal cases. Modern technological facilities were installed. In 2009, additionally recruited prosecutors in North-Rhine-Westphalia were allocated to divisions dealing with economic crimes.

(b) Cologne Regional Court: Furthermore, the Cologne Regional Court has also been reinforced with additional personnel. For several years, members of the civil section assisted the criminal section. Since May 2007, four additional judges were assigned to the Cologne Regional Court. These measures have contributed to accelerating criminal proceedings.

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

            2) Compensatory remedy for excessive length of criminal proceedings following acquittal or discontinuation of investigations: The European Court also underlined that the domestic law did not provide a sufficient compensatory remedy to redress excessive length of criminal proceedings following an acquittal (Ommer, No.1) or discontinuation (Ommer No.2) of the proceedings.

The German authorities indicate that a new draft law is under preparation to provide compensation in such circumstances.

• Information is awaited on the timeframe for the adoption of the draft law, and its text would be useful.

            3) Publication and dissemination: The European Court’s judgments were published in German on the German webpage of the European Court (http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/Volltext/Urteile/) and in the Annual Report 2008 of the Ministry of Justice concerning judgments against Germany (http://www.bmj.de/files/-/3852/EGMR%20Rechtsprechung%202008.pdf). They were also sent to a number of legal journals for publication, and were sent out to the competent authorities.

            - 12 cases mainly concerning the length of judicial proceedings

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

44036/02           Adam, judgment of 04/12/2008, final on 04/03/2009

10732/05           Bähnk, judgment of 09/10/2008, final on 09/01/2009

7634/05            Bozlar, judgment of 05/03/2009, final on 05/06/2009

7369/04            Deiwick, judgment of 26/03/2009, final on 26/06/2009

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

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

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

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

58911/00           Leela Förderkreis E.V. and others, judgment of 06/11/2008, final on 06/02/2009

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

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

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

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

Individual measures: All proceedings at issue have been closed.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violations of Article 6§1:

• Information provided by the German authorities (letter of 29/01/2009): The average length of civil proceedings before district courts in 2007 was 4,5 months (4,4 months in 2005), before regional courts 7,9 months (7,4 months in 2005). For appeal cases before the regional courts the average length of civil proceedings was 5,5 months (4,9 months in 2005), which amounted to 16,5 months (15,5 months in 2005) including the length of procedure at first instance. Before the higher Court of Appeal the average time of appeal was 7,5 months (7,5 months in 2005), but including the length of proceedings before the previous instances it amounted to 24,1 months (23,2 months in 2005).

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

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

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

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

3) Publication and dissemination: All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (http://www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court 's website for judgments in German (http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch). Furthermore, the Sürmeli judgment was published in Neue Juristische Wochenschrift (NJW) 2006, pp. 2389 ff and Europäische Grundrechtezeitschrift (EuGRZ 34 10-14/2007, pp. 255 ff.) and was further sent out by letter of the Government Agent of 9/06/2006 to the courts and justice authorities concerned, i.e. the Federal Constitutional Court, the Federal Court of Justice and all state justice administrations, all Ministries of Justice of the Länder (Landesjustizverwaltungen). The other judgments were also sent out to the courts concerned by letter of the Government Agent.

- 239 cases against Greece

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

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

Individual measures: The applicant was expelled in 2004.

• Assessment: No individual measure is necessary.

General measures: The case presents certain similarities to that of Dougoz (40907/98) (section 6.2) (see §50 of judgment), in the context of which Greece adopted a series of general measures (see in particular appendix to Interim Resolution ResDH(2005)21 on the cases of Dougoz and Peers).

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

                       - 8 cases concerning actions of police forces

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

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

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

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

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

43326/05           Leonidis, judgment of 08/01/2009, final on 05/06/2009

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

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

CM/Inf/DH(2009)16-rev

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

            - Use of lethal force by the police in the absence of an adequate legislative and administrative framework governing the use of firearms and lack of effective investigation: The Makaratzis, Celniku, Karagiannopoulos and Leonidis cases concern the authorities' failure to exercise their positive obligation to set up a legislative and administrative framework governing the use of firearms by the police sufficient to protect citizens' right to life (substantial violations of Article 2). These cases, except for Leonidis, also concern the absence of effective investigation of the events in question (procedural violations of Article 2).

In the Celniku case, the applicants' brother was killed by a bullet, in 2001; this was also the case of the applicant’s son in the Leonidis case, who was killed in 2000. In the two other cases the applicants received gunshot wounds during police operations in 1995 and 1998 respectively.

The European Court noted that at the material time the use of firearms was governed by legislation dating from 1943, since acknowledged to have been obsolete and incomplete in a modern, democratic society. It considered that the lack of clear rules relating to the use of force and of firearms could account for the rash initiatives of the police, which might not have happened if they had received adequate training and instructions. It is to be noted that in the Celniku case, the European Court expressed doubts as to the independence of the investigation, as it had been carried out by policemen working in the same department as the incriminated officers. It also indicated that certain shortcomings of the investigation were due to the absence of clear rules and instructions on the steps to be taken to guarantee that evidence is gathered promptly following a death during a police operation.

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

Individual measures:

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

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

In a letter of 10/06/2009 the authorities repeated that in the cases of Makaratzis, Celniku, Karagiannopoulos, Bekos and Koutropoulos, and Alsayed Allaham, new investigations would not be possible because the domestic criminal proceedings ended in the acquittal of the police officers accused. On the other hand, the cases of Zelilof and Petropoulou-Tsakiris were sent by the General Prosecutor of the Court of Cassation to the competent state prosecutors. Concerning the Zelilof case, the prosecutor in charge of the file pointed out in writing that, the alleged crimes being time-barred, no new investigation would be possible. Concerning the Petropoulou-Tsakiris case, the prosecutor confirmed that new investigation would be carried out following the European Court’s judgment.

Concerning the civil proceedings for damages lodged by the applicant in the Alsayed Allaham case, the Greek authorities indicated that the Council of State granted the applicant’s appeal and sent the case back to the Athens Administrative Appeal’s Court (judgment n°327/2008).

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

• Assessment: additional information is awaited on the resumed investigation in the Petropoulou-Tsakiris case, and on the results of the civil proceedings for damages brought by the applicant in the Alsayed Allaham case. Information is also awaited on the developments of the legislative process concerning the setting up of the independent committee, mentioned above, and on the prerogatives that will be given to this committee.

General measures:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d) In a letter dated 04/06/2008, the Prosecutor General at the Court of Cassation, making reference to the relevant case-law of the European Court and the observations of the Committee for the prevention of torture or inhuman or degrading punishment or treatment (CPT), invited prosecutors to investigate any allegation of ill-treatment against the police with the greatest diligence. In particular he indicated that when prosecutors are informed of cases of ill-treatment or where they have reason to believe that ill-treatment has taken place, they must register the case and order a medical examination. They must also take all other appropriate steps to facilitate the gathering of evidence and ensure that medical opinion is obtained in the interest of the effectiveness of any criminal proceedings which might result.

(e) The Greek authorities provided statistical data on administrative investigations concerning the period 2001-2005. During this period there were 86 disciplinary investigations against policemen; 11 of these cases resulted in finding disciplinary violations and penalties were imposed on the policemen responsible.

Detailed statistics have been provided concerning administrative and criminal investigations in 2005-2008: there were 232 investigations into alleged police ill-treatment, of which eight resulted in the finding of disciplinary offences and appropriate sanctions administered (two officers dismissed, two suspended). At the criminal level, there were five first-instance convictions. 55 disciplinary cases and 35 criminal cases are pending.

            3) Awareness-raising measures:

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

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

- circulars of 2005, 2007 and 2008 setting out in detail the violations found in the judgments in Makaratzis, Alsayed Allaham, Karagiannopoulos, Zelilof and Celniku.

(b) In 2004 the United Nations Human Rights Centre's Pocketbook on Human Rights for the Police, translated into Greek by the Greek National Commission for Human Rights, was distributed to all Greek policemen by the Ministry of Public Order.

(c) In 2007 the Head of the Police issued to all police services a CPT Handbook containing the text of the Convention for the prevention of torture and its explanatory report. A circular summarising the corresponding obligations of police officers was sent out in December 2008.

            4) Training: Since 2005 human rights have formed part of both initial and ongoing police training. With regard to initial training, police training establishments provide courses on the European Convention on Human Rights, the European convention on the rights of Children, the Convention for the prevention of torture and other treaties in the human rights field. In the context of continuous training, officers take part in workshops on, among other things, Roma rights and constitutional guarantees applicable at arrest and during detention. In addition, a committee has been set up under the aegis of the National Human Rights Commission, including a judge, a representative of the Bar, a representative of the National Human Rights Commission, ONG representatives and the police, tasked with the preparation of concrete proposals on the organisation and content of human rights training for the police. These proposals will aim in particular to help officers integrate the principles of human rights protection into their approach to the arrest and interrogation of suspects.

            5) Further publication and dissemination: The judgments in all these cases were immediately transmitted, in Greek translation, by the State Legal Council to the Ministry of Justice and afterwards to the President of the Court of Cassation and the Prosecutor General to be sent out to all judicial authorities. The Makaratzis and Bekos and Koutropoulos judgments have been published on the site of the State Legal council (www.nsk.gr).

• Assessment: Following the high-level meeting between the Greek authorities and the secretariat which took place in Athens on 14-15/10/2008, the authorities provided detailed information on general measures. The essence of this information is presented above and concerns in particular the new Police Disciplinary Code, training of police officers and the statistics on investigations. The possible need for further measures is currently being assessed. Further information would be helpful concerning the proposals by the committee tasked with assessing the organisation and content of police human rights training.

44858/04           Markoulaki No. 1, judgment of 26/07/2007, final on 26/10/2007[27]

2898/03            N.T. Giannousis and Kliafas Brothers S.A., judgment of 14/12/2006, final on 23/05/2007[28]

11919/03          Mohd, judgment of 27/04/2006, final on 27/07/2006

199/05              John, judgment of 10/05/2007, final on 10/08/2007

The Mohd case concerns the unlawful character of the police detention, pending expulsion, of the applicant, a Bangladeshi national who had been sentenced to 4 months’ imprisonment for selling fake CDs.

The European Court found that, as no expulsion order had yet been issued in respect of the applicant, his detention from 04/12/00 to 11/12/00 was not based on any decision setting out the ground, length or modalities of detention. The Court further found the applicant’s detention from 09 to 17/02/01 was not provided by law, since on 09/02/01 the Supreme Administrative Court had provisionally suspended the administrative expulsion order (violation of Article 5§1(f)).

The John case concerns the unlawful extension of the detention of the applicant, a foreign national, who was subject to administrative expulsion. On 29/03/2004, after his release had been ordered following the expiry of the maximum period for detention of foreigners under expulsion allowed by Greek law, he was re-arrested while he was still at the police station where he had been detained (violation of Article 5§1).

The European Court considered that in reality the applicant never ceased to be a detainee since, first, he was always held in the police station, and secondly, his liberty consisted solely in signing the release document, which was never implemented. In addition, the new expulsion order repeated the reasons already stated in the first expulsion order and did not provide any new reason to justify the further detention while for three months (01/01 – 29/03/2004) the Greek authorities demonstrated no diligence in enforcing the expulsion order within the deadline provided by law (§§ 33 and 35 of the judgment).

Individual measures: The applicant in the Mohd case was acquitted on appeal in 2001 and in 2003 the Council of State annulled the administrative expulsion order. The applicant requested no just satisfaction from the European Court, having reserved his right to do so under domestic law (§27 of judgment). The applicant in the John case was expelled from Greece to Nigeria (his country of origin) on 20/06/2004 (§17 of the judgment). The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further measure appears necessary.

General measures:

• Measures adopted: New Aliens’ Law 3386/2005, (in force as from 01/01/06) amended the law in force at the material time, introducing detailed provisions relating to aliens’ administrative expulsion and detention. The main new provisions (Articles 76-82) are the following:

(a) administrative expulsion may now in principle be ordered if an alien is sentenced to at least a year’s imprisonment;

(b) expulsion may be appealed to the Minister of Public Order who must take a decision within 3 working days;

(c) aliens detained pending expulsion are entitled to be informed of the reasons for their detention in a language they understand and access to a lawyer must be facilitated; they have the right to appeal against the detention before the First-instance Administrative Court;

(d) if, for reasons of force majeure, expulsion is not possible, the expulsion and detention are suspended;

(e) a number of vulnerable aliens, such as minors whose parents reside lawfully in the country, are now expressly excluded from administrative expulsion.

The facts in both cases occurred before the new law entered into force. It now remains to assess the extent to which the current provisions comply with the Convention’s requirements.

• Information awaited:

a) on whether the new Law provides specific safeguards concerning the detention of persons subject to administrative expulsion including in cases where administrative expulsion has been provisionally suspended by a court;

b) on further general measures envisaged or taken for the prevention of new, similar violations. In particular, information is awaited on the possibility of disseminating the Court’s judgment in the Mohd case to the Greek police and other competent authorities with a note explaining its practical consequences.

28606/05           Kabili, judgment of 31/07/2008, final on 31/10/2008

The case concerns the violation of the principle of the presumption of innocence in the light of the reasoning used in 2005 by the Athens Appeal Court to dismiss the applicant’s claim for damages, introduced following his acquittal in respect of his pre-trial detention (violation of Article 6§2).

In its reasoning the Athens Appeal Court considered that the applicant had “voluntarily caused his pre-trial detention” as he had failed to show evidence proving his innocence.

The European Court considered that asking the applicant, with no moderation or reservations, to prove his innocence at a time when he enjoyed the right to the presumption of innocence, and to draw negative consequences from this alleged failure to do so, in particular by rejecting his claim for damages, was not compatible with the requirements of the Convention.

Individual measures: The European Court indicated that it could not speculate on the results of the proceedings relating to damages if the violation had not taken place, but did not find it unreasonable to think that the applicant had lost a real chance of obtaining damages. It therefore awarded the applicant 10 000 euro in respect of pecuniary and non-pecuniary damages.

• Information would be welcome as to whether the applicant may obtain a new examination of his claim for damages before the domestic courts.

General measures: The case presents similarities to that of Diamantides No. 2 (No. 71563/01, Manios group, Section 4.2,) in which the Greek authorities sent the judgment out to the authorities concerned.

In a letter of 12/05/2009, information was provided by the authorities on the dissemination of the present judgment in Greek to the courts concerned. The judgment is also available on the State Legal Council’s website (www.nsk.gr).

42132/06          Paraponiaris, judgment of 25/09/2008, final on 06/04/2009 and of 22/10/2009, possibly final on 22/01/2010

This case concerns the violation of the applicant’s right to respect for the presumption of innocence.

The applicant was prosecuted for smuggling petroleum products. The Indictment Division abandoned the criminal proceedings because they were time-barred, but fined him, in April 2006, about 54,086 euros because it had been “objectively established that he had committed the offence of smuggling”.

The European Court considered that the terms used by the Indictment Division made a distinction, which the Court deemed artificial, between a finding of guilt and a finding that an offence had been “objectively” established. The reasoning of the Indictment Division resembled a declaration of guilt and was therefore incompatible with the presumption of innocence (violation of Article 6§2).

The case also concerns a violation of the applicant’s right to a fair trial: the European Court considered that the Indictment Division had not given the applicant full guarantees in respect of the requirements of a fair trial and the rights of the defence. The Court noted in particular that the applicant had been fined following a hearing which had not been held in public and at which he had been neither present nor represented (violations of Articles 6§§1 and 3 c).

Individual measures: On 22/10/2009, the European Court delivered its judgment on just satisfaction. This judgment is not final yet. When the European Court delivered its judgment on the merits, the applicant had not paid the fine imposed on him by the Indictment Division. All domestic proceedings have been closed.

• Assessment: the need for adoption of individual measures will be assessed in the light of the judgment on application of Article 41.

General measures: As regards the violation of the principle of presumption of innocence, this case presents similarities to that of Diamantides (71563/01) (Manios group, Section 4.2), in which the authorities sent out the judgment of the European Court to the Court of Cassation and to the Ministry of Justice.

• Information is awaited on measures taken or envisaged to prevent other violations similar to those found in this case.

19516/06           Alexandridis, judgment of 21/02/2008, final on 21/05/2008

This case relates to an infringement of the applicant’s right to not have to divulge his religious convictions due to his obligation to reveal the fact that he was not an orthodox Christian during his taking an oath of office in 2005 (violation of article 9). Provided with a standard statement form attesting a religious oath, the applicant was forced to declare, before the tribunal where he was taking his oath of office, that he was not an orthodox Christian and did not wish to take a religious oath but wanted to make a solemn declaration. The tribunal allowed him to do so but the minutes of the ceremony did not record this request.

The European Court noted that these proceedings show the existence of a presumption that the barrister who presents himself before the tribunal is an Orthodox Christian. Indeed, by virtue of domestic law, the oath that any civil servant must take is usually a religious oath (article 19§1 of the civil service code). The person who wishes to make a solemn declaration is under obligation to declare himself as an atheist or that his religion does not permit the taking of a religious oath (§§36-37 of the judgment). Concerning the existence of two different statement forms invoked by the government, the Court noted that the copies brought before the Court are dated 2007 and that as a result it cannot come to the conclusion that such forms existed at the time. Even if the two different forms had existed, the Court considered that the applicant could not be blamed for his failure to obtain the proper document. Indeed, the President and the court’s office should have informed the applicant that there existed a specific form for the solemn declaration.

In addition, the Court considered that the applicant did not have an effective remedy regarding the violation of his religious freedom (violation of article 13). It also noted, in this respect, that the applicability and effectiveness of the correction procedure for minutes such as provided for by the criminal proceedings code had not been proven (§§48 and 25 of the judgment).

Individual measures: The European Court awarded just satisfaction to the applicant for non-pecuniary damages.

• Information would be useful on the possibility of rectifying the minutes relating to the applicant’s oath-taking or on the annotation of the European Court’s judgment to the court’s office of the bar concerned.

General measures:

1) Breach of the right to freedom of religion:

• Information is awaited on the present practice relating to the professional oaths of barristers, especially whether the barrister is informed beforehand of the possibility of choosing between a religious oath and solemn declaration.The Greek authorities are also invited to provide information on any other measures envisaged or already taken to prevent new, similar violations and especially on possible legislative changes to the rules relating to the oath taking for barristers (see the aforementioned conclusions of the European Court in this respect). In any event, the dissemination of the European Court’s judgment to the competent courts is an appropriate measure for execution.

2) Breach of the right to an effective remedy:

• Information is needed on the existence or introduction of a remedy allowing for a domestic body to hear complaints similar to the ones raised by the applicant in the present case and offer an effective remedy. Information is particularly awaited on the possibility of rectifying the minutes of oath-taking ceremonies for barristers and on the appeal for damages if necessary.

 

32526/05           Sampanis and others, judgment of 05/06/2008, final on 05/09/2008

The case concerns the authorities’ failure to provide schooling for the applicants’ children during the 2004-2005 school year and their subsequent placement in special preparatory classes in 2005, resulting in a difference of treatment between Roma children et non-Roma children without any objective or reasonable justification (violation of Article 14 in conjunction with Article 2 of Protocol No.1). The case also concerns the absence of an effective remedy to secure redress for the above violation (violation of Article 13).

Concerning the failure to provide schooling for the children in 2004-2005, the European Court considered that the authorities should have recognised the particularity of the Roma community’s situation and should have facilitated the enrolment in primary school of children of Roma origin, especially in view of the fact that the authorities were aware of their problems relating to schooling. Yet, although the authorities had not explicitly refused to enrol the children, they did not do so despite the fact that the parents had explicitly expressed to the competent school authority their wish to enrol their children.

Concerning the special preparatory classes situated in an annexe of the primary school in which the applicants’ children had been placed in 2005, the European Court considered that the authorities had not based their decision concerning the children to be placed in the preparatory classes on a unique and clear criterion. It noted in particular that the authorities had not shown that any suitable tests had been given to the children concerned in order to assess their capacities and potential learning difficulties. In addition, although the declared objective of these classes was for the pupils concerned to attain a level which would enable them to enter ordinary classes in due course, no examples were offered of any student (amongst the 50 students concerned) who had been transferred in the ordinary classes. Furthermore, it was not shown that any tests existed that would enable the school authorities to assess periodically whether, based on objective facts and not approximate appraisals, the Roma children were capable of attending ordinary classes.

The European Court underlined the importance of setting up an appropriate system of assessment of the capacities of children with learning needs, to monitor their progress, especially in the case of children from ethnic minorities, and to provide for possible placement in special classes on the basis of non-discriminatory criteria. In addition, in view of the racist incidents caused by the parents of non-Roma children, the setting-up of such a system would have given the applicants the feeling that their children had not been placed in preparatory classes for segregation reasons.

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

• Information provided by the applicants (November 2008): The 50 children of Roma origin concerned by the facts of the case, which include the applicants’ children, remained in the special preparatory classes at stake. The parents wanted their children to be placed in ordinary classes, as was the case for the children of Roma origin in the Spata region, who were placed in such classes in November 2008.

• Information is urgently awaited on the current situation of the applicants’ children, especially on the possibility for them to be enrolled in ordinary classes.

General measures: It should be noted that the European Court found that Greek law recognised the particular nature of the Roma community’s situation, by facilitating the school enrolment procedure for their children. In addition domestic legislation provides the possibility of enrolling pupils at primary school simply by means of a declaration signed by someone with parental authority, provided birth certificates are produced in due course (§ 86 of the judgment).

In a letter of 29/09/2009, the authorities stated that the necessary steps had been undertaken in respect of the relevant services and that an action plan will follow as soon as possible. A translation of the European Court’s judgment was published on the website of the Legal Council of the State (www.nsk.gr).

• The action plan announced is awaited, as well as information on wide dissemination of the judgment.

The Deputies, 1.             noted with interest the information provided at the meeting by the Greek authorities on the individual measures taken to allow the schooling of the applicants’ children in ordinary classes, as well as on general measures aimed at including Roma children in the education system in a non discriminatory manner; 2.             noted that this information needs to be evaluated in depth and invited  the Greek authorities to submit it in writing in the form of a detailed action plan / action report; 3.             decided to resume consideration of this item, at the latest, at their 1086th meeting (June 2010) (DH), in the light of the evaluation of the information already provided and of further possible information to be provided.

36970/06           Vamvakas, judgment of 16/10/2008, final on 16/01/2009

This case concerns the violation of the applicant's right of access to a court due to the excessive formalism of the Court of Cassation in 2006, in declaring inadmissible the applicant's appeal on points of law against a decision taken by the appeal court sentencing him to four years’ imprisonment for forgery (violation of Article 6§1).

The applicant who was held in prison at the relevant time, lodged his appeal on points of law with the prison governor. He filled in a standard form and attached an additional document stating in greater detail the grounds for his appeal on points of law. The prison governor signed the official form but not the appended document. The Court of Cassation refused to take into account the document which was not signed by the governor and consequently rejected the appeal as inadmissible because insufficiently grounded.

The European Court noted in particular that the Court of Cassation had penalised the applicant for a formality for which he was not responsible and had thus infringed his right of access to a court.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. The applicant is entitled to request reopening of the proceedings following the judgment of the European Court, in accordance with Article 525§1.5 of the Code of Criminal Procedure.

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

General measures: This case presents similarities with that of Boulougouras, judgment of the 27/05/04 (Section 6.2). In that case the Greek authorities informed the Committee of Ministers that the Criminal Chamber of the Court of Cassation, in its judgment n° 677/2005 (of 15/03/2005), had promptly given direct effect to the judgment of the European Court. In this judgment (No. 677/2005), the Criminal Chamber stated that a cassation appeal was not to be declared inadmissible on the sole ground that it had not been countersigned by the court registrar. The Greek authorities have stressed that this new domestic case-law is an adequate guarantee for avoiding similar violations in the future.

On 22/09/2009 the authorities provided information on the dissemination of the judgment in Greek to the Court of Cassation. The judgment is also available on the State Legal Council’s website (www.nsk.gr).

• Information is awaited on measures taken or planned to avoid similar violations. Given that the Court of Cassation’s judgment in the present case is posterior to the judgment (n°677/05) referred to by the authorities in the Boulougouras case, information would be appreciated on the developments of this case-law.

43374/06           Louli, judgment of 31/07/2008, final on 31/10/2008

This case concerns the violation of the applicant’s right of access to a court due to the excessive formalism of Court of Cassation in 2006, in declaring inadmissible the applicant’s appeal against a decision taken in criminal proceedings to which she was a civil party (violation of Article 6§1)

The applicant had lodged a complaint on her own behalf and as legal representative of her husband (who was senile) alleging that money had fraudulently been removed from their joint bank account. When she lodged an appeal after her husband’s death, she stated that she was acting on her own behalf and as his sole heir. However, the Court of Cassation, noting that this double capacity was not mentioned in the record of deposit prepared by the registrar, refused her capacity to appeal and found her appeal inadmissible. The European Court noted in particular that the Court of Cassation had penalised the applicant for a mistake made when she lodged her appeal, when it was clear from the file that the applicant was not only acting on her own behalf but also as her husband’s sole heir.

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

• The authorities’ assessment would be appreciated as to whether other individual measures are required.

General measures:

• Information is awaited on measures taken or envisaged to avoid new, similar violations. In view of the violation, publication of a translation of the judgment in Greek and wide dissemination to the competent jurisdictions would seem appropriate.

15100/06           Pyrgiotakis, judgment of 21/02/2008, final on 29/09/2008[29]

17721/04           Perlala, judgment of 22/02/2007, final on 22/05/2007[30]

- 4 cases mainly concerning the violation of the right to peaceful enjoyment of possessions on account of the lack of compensation for the progressive ban on any construction that affected the possessions

35332/05           Anonymos Touristiki Etairia Xenodocheia Kritis, judgment of 21/02/2008, final on 21/05/2008

35859/02           Housing Association of War Disabled and Victims of War of Attica and others, judgments of  13/07/2006, final on 11/12/2006 and of 27/09/2007, final on 31/03/2008

9368/06            Theodoraki and others, judgment of 11/12/2008, final on 04/05/2009

14216/03          Z.A.N.T.E. - Marathonissi A.E., judgments of 06/12/2007, final on 02/06/2008 and of 28/05/2009, final on 06/11/2009

These cases concern violations of the applicants’ right to peaceful enjoyment of their possessions due to the lack of compensation for the progressive ban on any construction affecting their land (violations of Article 1 of Protocol No. 1). Moreover, the case Theodoraki and others concerns the lack of an effective remedy in this respect (violation of Article 13). The cases of Anonymos Touristiki Etairia Xenodocheia Kritis and Theodoraki and others also concern the excessive length of proceedings before the Council of State (violation of Article 6§1).

Concerning the cases of Anonymos Touristiki Etairia Xenodocheia Kritis, Z.A.N.T.E. - Marathonissi A.E., and Theodoraki and others, when the applicants bought their land (at the beginning of the 1970s and even earlier in the third case), the relevant domestic law allowed buildings to be built on land that was situated outside the urban area under certain conditions. Later, the development of this land was blocked progressively by different administrative acts adopted between 1984 and 1999, the last banning any building on the land at all. The applicants’ requests for compensation were rejected by the administrative courts between 2002 and 2005 on the basis that the land in question could not be built upon per se and in view of its nature. The established case-law of the Council of State provides that any site situated outside the urban area is destined by its nature solely to be used for agricultural purposes, poultry farming, forestry or public entertainment. The European Court considered that the criteria used by the administrative courts did not allow account to be taken of the specificities of each plot of land not included in the urban area, or the law governing its exploitation before the incriminated restrictions had been imposed. It also noted a certain contradiction in the domestic authorities’ behaviour to ensure the protection of the natural or cultural environment. If from the beginning the applicants’ land could not have been built on, it would not have been necessary for the authorities to impose construction restrictions and finally a total construction ban.

The case of Housing Association of War Disabled and Victims of War of Attica and others concerns the violation of the property rights of the applicant association and its 157 members' over forest land which was initially declared suitable for reafforestation; but in 1975 building licences were issued. However, various subsequent administrative decisions and Council of State judgments prevented the applicants from building.

In all these cases, the European Court was particularly struck by the fact that, although the very substance of the applicants' ownership has been affected, the applicants were not successful in obtaining compensation under Greek law. This, combined with the state's ultimate refusal to expropriate the applicants' property or to exchange it for new land of equal value, aggravated considerably the adverse effects on the applicants' situation and placed a disproportionate burden on them, in breach of Article 1 of Protocol No 1).

Individual measures: The European Court reserved the application of Article 41 in its entirety. In the cases of the Housing Association of War Disabled and Victims of War of Attica and others, and Z.A.N.T.E. - Marathonissi A.E., the European Court delivered its judgments concerning just satisfaction on 27/09/2007 and 28/05/2009 respectively, allowing the applicants just satisfaction in respect of pecuniary damages and considering that the finding of violation provided sufficient compensation for the non-pecuniary damage sustained.

The domestic proceedings the length of which was criticised by the European Court in the Anonymos Touristiki Etairia Xenodocheia Kritis were closed in 2005.

In the Theodoraki and others case, the domestic proceedings before the Council of State which started in 2005, were still pending when the European Court delivered its judgment.

• Information is awaited on the state of the proceedings in the case of Theodoraki and others and, if needed, on their acceleration.

General measures:

1) Violation of the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1) and lack of an effective remedy (Article 13):

• Information is awaited on the changes in the Council of State’s practice questioned in these cases or on any other measure taken or envisaged by the Greek authorities to prevent similar violations, as well as on an effective remedy related to the violation of the right to peaceful enjoyment of possessions. The authorities are also invited to publish and disseminate the European Court's judgments to all competent administrative (national and local) and judicial authorities.

2) Violation of the right to be tried within a reasonable time (Article 6§1): this issue is being examined in the Manios group (70626/01, Section 4.2).

- 3 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

The judgments concern the refusal to register (Bekir-Ousta and others and Emin and others) or dissolution (Tourkiki Enosi Xanthis and others) of associations on the grounds that their aim was to promote the idea of the existence in Greece of an ethnic minority as opposed to the religious one provided for by the 1923 Lausanne Treaty (violations of Article 11). With regard to the cases of Bekir-Ousta and others and Emin and others, theEuropean Court noted that the contested measure rested only on a simple suspicion concerning the true intentions of the founders of the associations 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. The Court recalled that Greek law (Article 12 of the Constitution and Article 81 of the Civil Code) provides no system of preventive control over the establishment of non-profit-making associations. Furthermore the Court noted that once the above-mentioned associations were founded, the Greek courts could order dissolution if the associations subsequently pursued an aim different from that laid down in the statutes, or if their 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 underlined the radical nature of the measure dissolving the association and 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.

The case Tourkiki Enosi Xanthis and others also concerns the excessive length of the civil proceedings related to 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: On the basis of the European Court’s judgment, the applicants applied again for registration of the association in the national courts. On 09/12/2008, the Single Member Court of First Instance of Alexandroupoli (judgment No. 405/2008) rejected the application as inadmissible on the ground of res judicata. The decision referred in particular to the fact that under national law, retrial of a case further to a finding of violation of the European Court is foreseen only for criminal proceedings (Article 525§5 of the Code of Criminal Procedure) but not for civil ones. The applicants appealed to the Court of Appeal of Thrace. The appeal was heard on 03/04/2009 and the outcome is awaited.

            2) Case of Tourkiki Enosi Xanthis and others:

a) Violation of Article 11: On the basis of the European Court’s finding of a violation regarding the dissolution of the applicant association, the applicants introduced two separate claims currently pending: one before the Court of First Instance of Xanthi, seeking annulment of its earlier decision No. 36/1986 ordering the dissolution; and one before the Court of Appeal of Thrace, seeking annulment of its earlier decision No. 31/2002 confirming the decision No. 36/1986.

Regarding the first claim, the Court of First Instance of Xanthi (judgment No. 12/2009 published on 30/04/2009) rejected the application on the basis of res judicata, also relying on Article 525§5 of the Code of Criminal Procedure as quoted above. On 27/05/ 2009 the applicants appealed before the Court of Appeal of Thrace. The hearing was scheduled for 23/10/2009. Regarding the second claim, the hearing before the Court of appeal of Thrace was scheduled for 03/04/2009.

b) Violation of Article 6§1: The proceedings, the excessive length of which was criticised, ended in 2005.

            3) Case of Emin and others: On the basis of the European Court’s judgment, the applicants again applied for registration of the association before the national courts. A hearing was held at the Court of First Instance of Rodopi on 08/04/2009. The outcome is awaited.

• Information is awaited on the outcome of the national proceedings in all three cases.

Developments: Additional information regarding the domestic proceedings in all three cases was provided by the applicants’ lawyers by letters dated 20 and 21/10/2009 (see DD(2009)572).

General measures:

            1) Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and Others: The issue of excessive length of civil proceedings is being examined in the framework of the Manios group (70626/01, sub group Konti-Arvaniti, Section 4.2).

            2) Violations of Article 11: The three judgments have been translated and published on the Internet site of the State Legal Council (www.nsk.gr ). In addition, the Ministry of Justice sent an accompanying letter to the President of the Court of Cassation emphasising the main conclusions of the Court as well as the obligation for the state, in accordance with Article 46 of the Convention, to abide by the Court’s judgments. In this letter the dissemination of the judgments to the judicial authorities concerned was also requested. The judgment in the case of Tourkiki Enosi Xanthis was also sent to the Prefects of the region (Drama, Kavala and Xanthi).

• Confirmation is awaited regarding the wide dissemination of the three judgments to the relevant judicial authorities. Information is also awaited on any measures taken or envisaged in order to prevent similar violations, in particular on the organisation of targeted training activities for judges in this field.

32186/02           Agga No. 3, judgment of 13/07/2006, final on 13/10/2006[31]

33331/02           Agga No. 4, judgment of 13/07/2006, final on 13/10/2006

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).

- 7 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

6571/05            Pantaleon, arrêt du 10/05/2007, définitif le 10/08/2007

14263/04           Rompoti et Rompotis, arrêt du 25/01/2007, définitif le 09/07/2007

The cases of Beka-Koulocheri, Georgoulis, Kanellopoulos, Moschopoulos-Veïnoglou and Rompoti and Rompotis 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 (violations of Article 6§1).

The case of Milionis and others concerns the failure to enforce a final court decision of 2003 recognising the applicants’ right to statutory interest on additional pension payments (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 case of Pantaleon concerns the non-enforcement of a Court of Audit judgment (violation of Article 6§1).

The Kanellopoulos case also relates to the absence of a domestic remedy capable of remedying this situation (violation of Article 13).

In all these cases, 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 person concerned 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 (without interest) on 21/07/2004.

• Information is awaited on the compliance by the administration with domestic judicial decisions in the cases of Beka-Koulocheri, Kanellopoulos, Pantaleon and Rompoti and Rompotis.

General measures:

1) Violation of Article 6 (non-enforcement of domestic courts’ decisions): It should be recalled that Greece has 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).

On 25-26/06/2009 a high-level meeting took place in Athens between the Secretariat and the Greek authorities at which questions relating to the results already obtained from the implementation of the mechanism set up by Law No. 3068/2002 and to the measures possibly needed to guarantee and improve its effectiveness were discussed.

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.

• Information is awaited 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.

2) Violation of the right to be tried within a reasonable time-limit (Millionis and others case): this issue will be examined in the Manios group (70626/01, Section 4.2).

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 found accordingly also a violation 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 awarded the applicant just satisfaction covering the non-pecuniary damage sustained. The Greek authorities informed the Committee that, following a review of the file, 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 any further claim to the Committee.

            2) Fotopoulou case: The European 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 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.

In December 2008, the authorities indicated that the Prefect for the Cyclades region had in his ruling of 17/08/2007 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.

In a letter of 10/06/2009, the authorities underlined that in the meantime the owners of the disputed construction had applied to the Court of Appeal of Piraeus seeking the annulment of the decision by the Prefect of the Cyclades. A hearing took place on 13/03/2009. On 04/06/2009, the Prefect of Cyclades contacted the Administration General Inspector to be informed about the possibility of opening demolition proceedings while the Court of Appeal’s decision was expected. In response, the Administration General Inspector underlined (in letters of 26/05/2009 and 18/06/2009) the Greek state’s obligation to comply with the European Court’s judgments, declaring that:  “We inform you that, in our opinion, the demolition of the illegal construction must be done immediately”. 

The applicant’s lawyer continues to complain of the failure to demolish the illegal construction in question.

In her latest letter of 16/10/2009, the applicant considers the administration’s refusal to proceed with the demolition to be manifestly illegal and declares that she has been forced to lodge a new application before the European Court invoking Article 46§1 of the Convention.

• Information is urgently awaited concerning the enforcement of domestic decisions ordering the demolition of the illegal construction.

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 (70626/01, Section 4 .2)

12045/06           Ichtigiaroglou, judgment of 19/06/2008, final on 01/12/2008

The case concerns the violation of the applicant’s right to the peaceful enjoyment of her possessions in that her right to an old-age pension was cancelled following a retroactive application by the Council of State of legislative measures relating to old-age pensions.

In 1993, in accordance with Law No. 2079/1992 which extended a number of deadlines within which cases had to be brought before the appropriate authorities, the applicant applied for an old-age pension, asking that the pension contributions she had paid in Turkey be recognised in Greece. Meanwhile, a new law No. 2187/1994 entered into force, which clearly stated that the possibility of extending the deadlines provided by Law No. 2079/1992 was open only to those living permanently in Egypt or Turkey. Despite the adoption of the 1994 law, the applicant’s right to an old-age pension was recognised by two court decisions (at first instance in 1996 and on appeal in 1998), although she lived in Greece. She began to receive her pension from June 1999 onwards. 11 years after her initial request, the Council of State, in its judgment No. 370/2005, found that the applicant should not have been awarded the pension in question in view of the retroactive effect of the 1994 law.

The European Court pointed out that, even if the adoption of the law in question did not in itself violate the applicant’s right to the protection of her property as the administrative courts had refused to give the law retroactive effect, its legitimacy and its conformity with the principle of the rule of law seemed questionable. The European Court called to mind in this respect the fact that the changes, made through new provisions, to the rights resulting from laws previously applicable could only be justified by pressing grounds relating to the public interest. It considered in this case that the necessary balance between the demands of the public interest and the safeguard of the applicant’s right to protection of her property had been breached by the retroactive application – 11 years after the beginning of the dispute in question – of Law No. 2187/1994 by the Council of State. Furthermore the applicant was not only deprived of her right to receive the pension, but was also subjected to a disproportionate burden as she was requested to pay back the entire amount of the pension she had already received bona fide.

This case also concerns the excessive length of the proceedings relating to the applicant’s pension rights before the appropriate administrations and the administrative courts (violation of Article 6§1).

Individual measures:

1) Violation of Article 1 of Protocol 1: In July 2007, following the Council of State’s judgment No. 370/2005, the social security agency (Ιδρυμα Κοινωνικών Ασφαλίσεων, hereafter “IKA”) stopped paying the pension in question. In October 2007, the applicant was ordered to pay back to the IKA the sums she had been paid between 1999 and 2007, plus interest, for a total of 48 495, 04 euros. Whilst agreeing with the fact that the applicant had suffered pecuniary damages in view of the violations found, the Court stated that the elements in the file did not enable it to determine precisely the scope of the damages actually sustained. It awarded the applicant 50 000 Euros for all heads of damage taken together.

• Information is awaited on the applicant’s current situation.

2) Violation of article 6§1: The proceedings criticised by the European Court for their excessive length ended in 2006.

• Assessment: No further individual measure is necessary in this respect.

General measures:

1) Violation of Article 1 of Protocol 1:

• Information provided by the Greek authorities (letter of 22/09/2009): The European Court’s judgment has been sent in Greek to the President of the Council of State. It was also notified to the social security agency (“IKA”) directly involved. It is available on the State Legal Council’s website (www.nsk.gr).

• Information would be useful on further measures adopted or envisaged to prevent similar violations.

2) Violation of article 6§1: This case presents similarities to the Manios case (70626/01, Section 4.2).

 

33977/06           Meïdanis, judgment of 22/05/2008, final on 01/12/2008

The case concerns the violation of the applicant’s right to the peaceful enjoyment of his possessions following the fixing in 2006 of the default interest which was owed to him by his employer, a hospital which was a public-law entity, at a rate that was four times lower than the interest imposed on private individuals (violation of Article 1 of Protocol No. 1).

The applicant had sued his employer before the Greek courts for payment of salary outstanding for a certain period, plus the payment of default interest. Contrary to the decision taken by the appeal court, the Court of Cassation considered that in relation to public entities’ debts, the fixing of the default interest at a lower rate than that imposed on private individuals provided in Law No. 496/1974, did not violate the right to peaceful enjoyment as guaranteed by the Convention. Following the example of the Appeal Court and dissenting magistrates of the Court of Cassation, the European Court considered that the interest of the public entity’s cash-flow could not be assimilated to the public or general interest and could not justify the violation, caused by the law in question, of the creditors’ right to the peaceful enjoyment of his possessions.

Individual measures: The European Court awarded just satisfaction in respect of the pecuniary damages sustained by the applicant for the amount of interest he requested.

• Assessment: No other individual measure seems necessary.  

General measures: According to Law No. 496/1974 “the legal default interest rate for public entities’ debts is fixed at 6% per annum, unless a contract or special law says otherwise, and starts running from the notification of the appeal” (§15 of the judgment). In its decision No. 2748/2006, the 16th Chamber of the Athens Administrative Appeals Court found, in a unanimous decision, that the implementation of Law No. 496/1974 was contrary to the principle of equality and to the right to peaceful enjoyment of possessions (§ 16 of the judgment).

On 19/03/2007, the seven judges of the Council of State’s First Chamber unanimously found that the differentiation of the default interest rate depending on the type of debtor could not be justified by the protection of the public interest. It sent the case back to its plenary formation to determine whether Law No. 496/1974 was compatible with the Constitution and the Convention (judgment No. 802/2007).

In a letter of 22/09/2009, the authorities provided information on the dissemination of the judgment in Greek to the Special Supreme Court, to the Council of State and to the Court of Cassation. The judgment was also notified to the hospital directly involved. It is available on the State Legal Council’s website (www.nsk.gr).

• Information is still awaited on the present practice relating to the implementation of Law No. 496/1974, and on measures taken or envisaged to prevent similar violations.

- 17 cases concerning various violations in the context of land expropriation proceedings[32]

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 and of 05/11/2009, possibly final on 05/02/2010

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

                        - 182 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 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), 1078th meeting, March 2010).

- 132 cases against Hungary

5529/05            Patyi, judgment of 07/10/2008, final on 07/01/2009

This case concerns the violation of the applicant’s right to freedom of assembly.

In 2004, the authorities on several occasions banned demonstrations notified by the applicant in compliance with the national law, citing traffic and security reasons. The applicant planned to organise peaceful demonstrations with twenty participants, whose only action would have been to stand silently in line on the pavement in front of the Prime Minister’s private residence in Budapest.

The European Court noted that it appeared unlikely that a limited number of demonstrators would have needed more space at the scene than the five-metre-wide pedestrian area, or that they would have significantly impeded the traffic, especially on Christmas Eve, when the town buses ceased to run soon after 4 p.m. (§42). The ban was thus neither relevant nor sufficient to meet any pressing social need nor it has been necessary in a democratic society (§44) (violation of Article 11).

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage the applicant may have suffered (§53).

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

General measures:

• Information provided by the Hungarian authorities (06/07/2009 and 09/10/2009): The debate in respect of the amendments to Act No. 3 of 1989 concerning the right of assembly is still going on. However, the European Court’s judgment has been published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu). 

• Information is awaited on measures taken or envisaged to prevent new,similar violations. It appears at the outset that the wide dissemination of the European Court’s judgment, in particular to the authorities concerned, would be useful.

44378/05           Daróczy, judgment of 01/07/2008, final on 01/10/2008

This case concerns the violation of the applicant’s right to respect for her private life in that in 2005 she was forced to alter her name, Tiborné Daróczy, which she had used for more than 50 years and which, beyond its relevance in self-identification and self-determination, also gave her a strong personal link to her late husband (violation of Article 8).

The European Court held that the authorities had failed to strike a fair balance between the need to preserve the authenticity of the state registration system and the applicant’s right to her private life (§34).

Individual measures: The European Court found that the government should take steps to rectify the applicant’s personal situation and recognise in some official manner that she may retain her longstanding name of Tiborné Daróczy (§40). 

• Information provided by the Hungarian authorities (19/01/2009): The applicant’s situation can only be remedied after a change in the law (see general measures below).

• Information is awaited in this respect.

General measures:

• Information provided by the Hungarian authorities (19/01/2009): The government has submitted before the National Assembly Bill No. T 6644 to amend the Registry Act.

• Information is awaited on the contents of this draft law as well as its adoption.

                        - 130 cases of length of judicial proceedings[33]

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

A. CIVIL PROCEEDINGS

Proceedings began in these cases between 1986 and 2003 and most ended between 2000 and 2005 (violations of Article 6§1).

The Kovács (No. 23435/03) and Pátková cases also concern the lack of an effective remedy in respect of excessive length of civil proceedings (violations of Article 13).

The European Court noted in several cases that special diligence was required in certain disputes, such as those concerning employment, civil status, child custody or matrimonial issues and compensation in respect of an illness resulting in disability or injuries sustained in an accident.

The European Court noted in the Timár judgment that the excessive length of civil proceedings originated in the inconsistency between the approaches of the Supreme Court and the Constitutional Court as regards whether a Supreme Court review was available in cases concerning the examination of criminal restitution claims in civil review proceedings. In other judgments, the Court noted that the violations resulted from

            (i) inactivity of the domestic courts, including the Supreme Court and the Constitutional Court;

            (ii) inefficient use of their time during the proceedings;

            (iii) difficulties in applying foreign laws; and

            (iv) difficulties in obtaining expert opinions.

Individual measures: When the European Court rendered its judgments, proceedings were pending in the following cases:

Barna, Bíró, Csabainé Győri, Czmarkó, Earl, Fodor, Hidvégi, Immobilia Bau Kft, Kalmár, Karalyos and Huber, Kastner, Keszthelyi, Kiss, Kovač, Kovács (No. 23435/03), Kreisz, Lévai and Nagy, Lovász, Magyar (No. 2), Mezey, Militaru, Molnár, Nyírő and Takács, Pepszolg Kft (V.A.), Sándor, Szebellédi, Szilágyi, Sztergár, Tardi and others, Temesvári,  Tóth, Várnai, Vass and Zaveczky.

Proceedings have been closed in the following cases:

Barna (15/01/2007), Earl (01/07/2009), Kalmár (17/05/2007) Karalyos and Huber (26/10/2006), Kiss (26/02/2004), Magyar (No. 2) (11/07/2007), Sándor (24/03/2009), Szilágyi (19/11/2008),Tóth (27/02/2008) and Vass (07/11/2007).

In addition, review proceedings have been instituted by the applicants before the Supreme Court in the Szilágyi and Szebellédi cases. In the Czmarkó case, civil proceedings against an airline are pending on appeal before Pest County Regional Court. The applicant’s claim in the civil proceedings against a Belarusian official has been dismissed. The applicant appealed against this decision, but service on the foreign respondent was unsuccessful. Proceedings have been also pending on appeal in the Mezey and Kalmar and Lorencz cases. In the Temesvári and Tardi case, the proceedings have been suspended due to the death of one of the parties. Hearings have been scheduled in the Kovács (No. 23435/03) and Várnai cases.

• Additional information is awaited on the state of all pending proceedings and on their acceleration. Information is awaited in particular concerning pending proceedings in the following cases:

Bíró, Csabainé Győri, Czmarkó, Fodor, Hidvégi, Immobilia Bau Kft, Kastner, Keszthelyi, Kovač, Kovács (No. 23435/03), Kreisz, Lévai and Nagy, Lovász, Mezey, Militaru, Molnár, Nyírő and Takács, Pepszolg Kft (V.A.), Szebellédi, Sztergár, Tardi and others, Temesvári,  Várnai and Zaveczky.

General measures: Some 160 applications are currently pending before the European Court against Hungary concerning the excessive length of civil proceedings.

1) Excessive length of civil proceedings:

• Information provided by the Hungarian authorities:

Reform of the Hungarian legal system: The workload of the Supreme Court has been considerably reduced 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.

Legislative measures: To reduce the length of judicial proceedings, 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. Stricter time-limits were provided for the stay of proceedings and the drafting and notification of judgments. 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.

Administrative supervision: 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. Finally, in 1999 administrators were appointed to courts to ensure better case-management.

Measures concerning experts:  Concerning the difficulties in obtaining expert opinions, the authorities stressed 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 2008 amendments to the Code of Civil Procedure, which entered 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: Statistics have been provided for the year 2006: less than 1% of the cases before the Supreme Court have been pending more than 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 show a higher percentage of cases pending for over 12 months.

Statistics have also been provided on the total number of court cases for the year 2008. However, no statistics have been provided on the average length of proceedings.

• Assessment: A number of measures have been taken by the Hungarian government to reduce the length of proceedings. However, it appears that despite the measures taken, the statistics show a higher percentage of cases pending before first-instance courts for more than 12 months. Beyond such discouraging statistics, there is an alarmingly large number of pending applications, implying that the measures taken so far have been ineffective. Finally, no information is available on measures taken to ensure special diligence in certain cases and to eradicate the causes of violations identified by the European Court, except for the issues concerning the belated expert reports.

• Information is awaited as follows:

- Further statistical data regarding pending cases, in particular in respect of local, first-instance courts and country courts, in 2008 and 2009 so as to evaluate the efficacy of the measures adopted so far. In particular, information would be helpful on the average length of proceedings in the indicated period.  

- Measures taken or envisaged to ensure that the domestic courts proceed with  special diligence in certain cases, particularly those  concerning employment, civil status, child custody or matrimonial issues and compensation in respect of illness resulting in disability or injuries sustained in an accident.

- Measures taken or envisaged to eradicate the causes of excessive length of civil proceedings identified by the European Court (see reference to the Court’s observations in the Timár judgment, summarised in the introductory summary above).

2) Effective remedy: As of 1/04/2006, sections 114/A and 114/B of the Code of Civil Procedure have provided a first-instance remedy and appeal for complaints about the undue length of civil proceedings. The courts dealing with such complaints, if well-founded, are expected to order measures to facilitate the progress of the litigation at issue (§8 in Pátková) (see details below).

• Information provided by the Hungarian authorities:

Legislative measures: Act XIX of 2006, a law allowing parties to ask for acceleration of pending proceedings, amended the Codes of both Civil and 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.

Statistics: In 2008 a total of 108 complaints were filed against excessive length in civil proceedings and 14 commercial proceedings. In January-June 2009, a total of 42 such complaints were lodged in respect of all types of proceedings before county courts, 25 complaints before regional courts and 6 complaints before the Supreme Court. Most of them: 34, 17 and 6 respectively, referred to the excessive length of civil proceedings.

• Assessment: The remedy introduced appears to provide several acceleratory remedies in lengthy proceedings. The statistics concerning the number of complaints lodged in 2008 and 2009 show that the excessive length of proceedings still persists in Hungary.  However, no assessment is possible 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 against 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 (Section 4.2)

• Information is awaited as follows:

- 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).  Information would be also appreciated as to whether the Hungarian authorities might also envisage introducing compensatory remedies.

- How the remedy introduced has been used to accelerate proceedings in cases in which, following a judgment of the European Court, domestic proceedings have been pending since 2006 when the remedy became available (see above under Individual measures) or in which proceedings have been ended since the introduction of the new remedy, such as those in the cases of Koronczai and Sassné Sári.

B. CRIMINAL PROCEEDINGS

Proceedings in these cases began as early as in 1988 and most of them were closed between 2003 and 2007 (violations of Article 6§1).

The Kalmár and Lorencz case also concerns the excessive length of civil proceedings.

The European Court noted in the Csanádi judgment that the excessive length of criminal proceedings originated in the inactivity of domestic courts and their failure to use their time effectively to accelerate proceedings anc conclude cases as quickly as possible (§35).

Individual measures: In the cases of Csanádi, Nagy and Kalmár and Lorencz, proceedings were still pending when the European Court delivered its judgments.

• Information provided by the Hungarian authorities: In the Csanádi case, the proceedings were closed on 05/05/2008 before the Veszprém County Regional Court. In the Nagy case, proceedings were closed on 22/08/2005 before the Budapest Regional Court.

• Assessment: No further measure appears necessary in the Csanádi and Nagy cases. However, no information has been provided on the status of the domestic proceedings in the Kalmár and Lorencz.

• Information is awaited on the state of the domestic proceedings in the Kalmár and Lorencz case (§§7 and 10) and on their acceleration, if still pending.

General measures: 

1) Background information: The European Court first found a violation on grounds of excessive length of criminal proceedings against Hungary in the Németh case (see Resolution ResDH(2006)48) in the context of which the Hungarian authorities informed the Committee that the violation found did not in itself indicate structural shortcomings in Hungary's administration of justice concerning the length of criminal proceedings. Thus the publication and dissemination of the judgment to the National Judicial Council were considered sufficient measures to prevent similar violations. It may be noted that there are around 40 cases currently pending before the European Court in respect of Hungary regarding excessive length of criminal proceedings.

2) Excessive length of criminal proceedings: The information provided on measures taken in respect of excessive length of civil proceedings are also relevant to the present cases.

• Information is however awaited on the specific measures taken or envisaged to reduce the excessive length of criminal proceedings in Hungary, in particular in order to reduce considerable periods of inactivity of domestic courts in criminal proceedings and to ensure that the domestic courts use their time efficiently to accelerate proceedings.

•Publication and dissemination: The European Court's judgments concerning excessive length of both civil and criminal proceedings have been published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu) and sent to the Office of the National Judicial Council for dissemination to the courts. The judgments in the cases of Tímár, Simkó and Lévai and Nagy were also published in the human rights quarterly Acta Humana.

- 3 cases against Iceland

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

The case concerns the lack of objective impartiality of the Supreme Court of Iceland which rejected, in 1997, the applicant's appeal in compensation proceedings he had brought against the National Bank of Iceland, while one of the Supreme Court’s judges, and her husband, were closely linked to the National Bank (violation of Article 6§1).

The applicant lodged two petitions with the Supreme Court requesting the reopening of the proceedings. These petitions were rejected in July and October 1997.

Individual measures: Under Article 169 (2) of Code of Civil Procedure, re-opening of proceedings can be applied for only once. Before the European Court handed down its judgment, the applicant had already applied twice before the Supreme Court of Iceland for re-opening of the proceedings in his case: the second application was rejected because, in accordance with the relevant provisions of the civil procedure law, a party could apply only once for the reopening of a case. Consequently, it seems that even if Icelandic law in principle does not appear to exclude the possibility of reopening the proceedings at issue in order to give effect to the judgments of the European Court (Article 169 (1) of the Code of Civil Procedure), a potential new request for reopening by the applicant has no chances of success. The individual measures are therefore linked to the general measures as reopening of the proceedings seems the most appropriate means to allow the applicant to have his case decided without lack of objective impartiality (see below).

General measures:

            1) Measures to guarantee the impartiality of Supreme Court judges: The judgment of the European Court has been translated and sent out to the Icelandic judicial authorities and the Icelandic version has been published on the website of the Ministry of Justice (www.dkm.is).

• Assessment: Taking into account the direct effect given to the Convention and to case-law of the European Court by Icelandic Courts, these measures are sufficient for execution (examples of this direct effect have been provided in the framework of the case Arnarsson against Iceland, judgment of 15/07/2003, final on 15/10/2003, Final Resolution CM/ResDH(2007)82).

            2) Reopening of the proceedings: A review of the procedural obstacles to reopening the impugned proceedings could be useful. The Icelandic delegation informed the Secretariat on 23/09/2005 that the Ministry of Justice has asked the Permanent Committee on Procedural Law to give its opinion on whether the provisions of the Code of Civil Procedure concerning the reopening of proceedings following a judgment of the Supreme Court should be revised,

• Information is still awaited on the follow-up given to the request of the Ministry of Justice as well as on possible legislative changes and their timetable for adoption.

31930/04           Eggertsdottir, judgment of 05/07/2007, final on 05/10/2007

This case concerns the violation of the applicant’s right to a fair hearing by an impartial tribunal (violation of Article 6§1). In proceedings concerning compensation for medical negligence, the Supreme Court in 2004 overturned the District Court's decision favourable to the applicant basing its own decision on the opinion of the State Medico-Legal Board (SMLB), four of whose members were employees of the defendant hospital.

The European Court found that the applicant might legitimately fear that the SMLB had not acted with proper neutrality in the proceedings before the Supreme Court as a consequence of its composition, procedural position and role in the proceedings.

Individual measures: The Court awarded the applicant just satisfaction including compensation for loss of opportunities and non-pecuniary damages suffered. The Icelandic authorities indicated that the applicant did not ask for re-opening of the proceedings (12/03/2008). It seems that, although it is not explicitly provided, Icelandic law does not appear to exclude the possibility of reopening the proceedings at issue in order to give effect to a judgment of the European Court (Article 169 (1) of the Code of Civil Procedure).

• Information is awaited confirming that re-opening is possible following a judgment of the European Court, including examples of jurisprudence if available. 

General measures:

• Information provided by the Icelandic authorities (12/03/2008): The Minister of Health has submitted a Bill to the Parliament on the abolishment of the State Medico-Legal Board Act, No. 14/1942. The explanatory report to the bill makes reference to the European Court’s judgment to affirm that, as it stands, the procedure of the State Medico-Legal Board does not comply with the rules on impartiality. It is proposed instead to solve disputes on medical issues before courts, with the assistance from court-appointed assessors and specialist judges.

The judgment of the European Court has been translated and published on the homepage of the Ministry of Justice (http://eng.domsmalaraduneyti.is), thus ensuring its dissemination to practicing lawyers and other interested persons. It will also be published in a periodical on the case-law of the European Court.

• Information is awaited on progress in the adoption of the draft legislation (a copy of the Bill, if available, would be useful).

42628/04           Westlund Súsanna Rós, judgment of 06/12/2007, final on 07/07/2008

The case concerns a violation of the applicant’s right to a fair trial because of the unjustified lack of an oral hearing in civil proceedings brought by the applicant before the Supreme Court of Iceland (violation of Article 6§1).

The European Court noted that the applicable legislation conferred upon one of the parties – the defendant – the de facto possibility to decide unilaterally whether or not the Supreme Court should hold an oral hearing. The Court concluded that the absence of a hearing in the applicant’s case was a direct consequence of the application of the Code of Civil Procedure which contained an apparent discrepancy between the national standards and the Convention’s requirements as regards the right to a fair trial.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damages, and costs and expenses. The applicant may apply for reopening of the proceedings before the Supreme Court on the basis of Article 169 of Act No. 91/1991.

• Assessment: no further individual measure seems necessary.

General measures:

• Information is awaited on measures envisaged to prevent future, similar violations. In any event, publication and wide dissemination of the judgment will be necessary.

- 5 cases 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.

- 4 cases of length of judicial proceedings

50389/99          Doran, judgment of 31/07/03, final on 31/10/03

42297/98          McMullen, judgment of 29/07/2004, final on 29/10/2004

18273/04          Barry, judgment of 15/12/2005, final on 15/03/2006

54725/00           O’Reilly and others, judgment of 29/07/2004, final on 29/10/2004

The cases concern the excessive length of certain proceedings concerning civil rights and obligations or criminal charges before criminal, civil and administrative courts. In the Doran case, the proceedings lasted approximately 8 years and 5 months; in the case of O’Reilly and others, some 4 years and 11 months; in the McMullen case the proceedings started on 29/06/1988 and were still pending when the European Court delivered its judgment (the period taken into account by the Court was approximately 16 years); and in the Barry case, the applicant was brought to trial eight years after being charged, and proceedings were still pending when the European Court delivered its judgment (violations of Article 6§1).

The cases of Barry, Doran and the O’Reilly and others also concern the lack of an effective domestic remedy in respect of excessively long proceedings (violations of Article 13).

Individual measures:

- It would appear from the information furnished by the Irish authorities that proceedings are no longer pending in the McMullen case.

- As to the Barry case, the Irish authorities have indicated that in March 2006, the Circuit Criminal Court judge dealing with the case granted a permanent stay on the prosecution in Cork Circuit Criminal Court. This order has not been appealed, and the case is proceeding no further.

General measures:

            1) Violations of Article 6§1:

• Measures taken with a view to reducing the length of proceedings:

- Improvement of judicial management: The Courts Service was established in 1999 by legislation in order “to manage the courts, support the judiciary and provide a high-quality and professional service to all the courts” (by implementing an IT strategy, assisting the judiciary with case management and making major efforts to reduce waiting times in criminal and family law matters).

The Court Service is in the early stages of implementing the IT Strategy for the development of civil case management technology. When developed, the new civil case management system and related business information systems would enable the Courts Service to identify ageing cases and those in which no action has been taken so that they can, if appropriate, be progressed or struck out. However, it should be noted that much of this work is already done manually.

- Register of reserved judgments: Section 46 of the Courts and Courts Officers Act 2002, which entered into force on 31/03/2005, provides the establishment of a register of every reserved judgment in civil proceedings, including those before the Supreme Court. If the judgment is not delivered within two months from the date upon which it was reserved, the President of the Court which heard the case must list the proceedings before the judge who reserved judgment at two-month intervals. That judge must specify the date on which he or she proposes to deliver the judgment.

- Appointment of new judges: Under the Civil Liability and Courts Act 2004, a total of 8 additional judges were appointed to several courts in November 2004. Three of those judges were appointed to the High Court. The additional judges have been deployed in reducing the waiting time for serious criminal trials, cases relating to asylum and immigration matters, applications arising from child abduction and for European Arrest Warrants. As a result, in the Central Criminal Court, the waiting time from return for trial to disposal of murder and rape cases has been brought down from 18-24 months in 2004 to 6-8 months in 2006. Child abduction cases are required by law to be disposed of within 6 weeks. The High Court is required to dispose of European Arrest Warrant applications within 60 days. In May 2007 the government appointed four additional High Court Judges to assist in reducing the waiting time for trials in the High Court.

-Judicial fellowships: Ten judicial fellows were appointed in the autumn of 2008 to assist High Court judges with research. This is expected to have a positive impact in terms of delays generally, particularly with regard to reserved judgments.

- Creation of a specialised court: A Commercial Court (rather “list”) was set up in January 2004, which contributed greatly to reducing the disposal time for cases admitted to the High Court. In the past three years, in the Commercial Court, 50% of the cases have been concluded in less than 14 weeks; 75% in less than 25 weeks; and 90% in less than 45 weeks.

- Use of court venues outside of Dublin: Courtrooms in the Dublin “commuter belt” are now being used as an overflow from the Four Courts complex to overcome a shortage of courtroom accommodation. Further, the President of the High Court and the Courts Service have now initiated a practice whereby High Court business is spread across the country utilising larger, recently refurbished courthouses. Thus, non-jury matters (e.g., civil proceedings related to debt recovery, contract disputes, allegations of negligence and misrepresentation, administrative proceedings) and judicial review cases may now be heard in regional courthouses. As consequence, many cases, which otherwise would remain without a hearing date, were fixed for county town venues. The waiting time in the non-jury list was reduced from 18 months in January 2008 to 3 months in December 2008. The use of court venues outside Dublin also frees up some judges in Dublin to deal with other matters, such as judicial review. The waiting time for judicial review cases in Dublin was reduced from 17 months in 2007 to 7 months in 2008.

- Management of the backlogs: Extra sittings were also arranged to deal with backlogs of Circuit Appeals in some of the regions.

- Measures to reduce Supreme Court waiting times:

(a) Superior Court “Fast Track System”:  There are two branches of the waiting list in the Supreme Court: the “ordinary list” of appeals, in which the waiting time at the end of December 2008 was 31 months, and the “priority list”, in which the waiting time at the end of December 2008 was 6 to 12 months. In certain cases (e.g. child abduction appeals), appeals can be heard within weeks, and in exceptionally urgent cases, appeals can be heard at extremely short notice. 

(b)The possibility of establishing a Court of Appeal: In May 2009, the Working Group on a Court of Appeal delivered its report, which recommends the establishment of a Court of Appeal in order to remedy the systemic backlog that will otherwise continue to build in the Irish court system. The Group makes recommendations as to how a Court of Appeal might be established and as to the future role of the Supreme Court. The government is currently considering the matter.

There are also ongoing amendments to the rules of the various courts with a view to introducing greater efficiencies in court practice and procedure.

The Irish authorities have indicated that in the light of the above information, it is clear that the measures adopted in response to the violation of Article 6 have greatly improved the situation in Ireland with regard to length of domestic judicial procedures.

• Assessment: Since the facts of these cases, it appears that the overall situation of the excessive length of judicial  proceedings has improved and is expected to continue to improve in light of all  the measures adopted (see above). However, further information is awaited in respect of the measures envisaged to address the situation of the length of proceedings before the Supreme Court. 

            2) Violation of Article 13: There are currently four new cases against Ireland raising similar issues before the European Court: TH, Application No. 23663/06; Mc Farlane, Application No. 3133/06; Superwood, Application No. 4812/2004 and JB, Application No. 9519/07. They have been notified to the government, which has submitted observations regarding an effective remedy for delay, which take into account developments in Irish case-law since the delivery of the judgments in the Doran, Barry and O’Reilly and others cases. In the observations, the government submits that the applicants failed to exhaust domestic remedies. The government also submits that domestic law contains a remedy in damages for breach of the constitutional right to trial with reasonable expedition, and provides examples of case-law and a legal opinion supporting this submission.

In the light of the new cases before the European Court and the new arguments being presented to the European Court, the Irish delegation has requested that further consideration of this issue not take place until the European Court has had an opportunity to assess the arguments presented to it in the new cases.

• Assessment: As the European Court is assessing information concerning a similar issue, it would be opportune to postpone the Committee’s consideration of the Article 13 issue until the 1100th meeting (December 2010) at the latest. An update on the state of the proceedings in these applications would be welcome.

            3) Publication and dissemination: In the Barry case, the violation appears to be due to circumstances particular to the case; consequently the publication and dissemination of the judgment would appear to be sufficient for execution. Copies of the judgment have been provided to all government departments and offices that had an interest in the case, namely the Department of Justice, Equality and Law Reform, the Office of the Director of Public Prosecutions and the Office of the Attorney General. A copy of the judgment has also been provided to the Courts Service. The judgments of the European Court, as published in the official reports and/or in other law reports and journals, are available in legal libraries in Ireland. A short article in relation to the case was published in the Law Society Gazette. The judgment of the European Court and the case was widely reported in the media at the time.

Copies of the Doran, McMullen and O’Reilly judgments have been provided to all government departments and offices that had an interest in the case and copies have also been provided to the Courts Service. An article about the Doran case appeared in the Irish Times on 01/08/2003. A link to the website of the Court is provided on several Government and legal websites.

- 232 cases against Italy

50550/06           Scoppola, judgment of 10/06/2008, final on 26/01/2009, rectified on 07/04/2009

The case concerns degrading treatment suffered by the applicant, a life prisoner, due to the conditions of his of detention, which were not appropriate to his state of health (violation of Article 3).

In 2003 the applicant, who was confined to a wheelchair and suffered from several diseases, unsuccessfully asked to be transferred from the Regina Coeli Prison in Rome to another prison in Rome where he could benefit from more humane conditions of detention. In June 2006, the Rome court responsible for the execution of sentences, supported by medical evidence, granted the applicant detention at home, but because he did not have a home adapted to his needs, the decision was set aside. In December 2006, the competent bodies of the Ministry of Justice ordered the applicant’s transfer to Parma prison, which had appropriate facilities for disabled inmates. The transfer did not take place until September 2007.

The European Court considered that keeping the applicant in the Regina Coeli Prison, which the court responsible for the execution of sentences had deemed inappropriate to his health status, must inevitably have placed him in a situation that aroused sufficiently strong feelings of anxiety, inferiority and humiliation to amount to ”inhuman or degrading treatment” (§51).

Individual measures: The applicant is currently detained in Parma Prison. The European Court awarded him just satisfaction.

The European Court considered that it did not have sufficient information to enable it to give an opinion of the facilities in Parma Prison or, more generally, the conditions of the applicant’s detention in that prison (§51).

• Information is awaited on the situation of the applicant, in particular as to whether the conditions of detention are appropriate to his state of health. 

General measures: The European Court observed that being unable to care for the applicant at home and there being no adequate institution available to care for him, the state should have either transferred the him to a better-equipped prison to avoid the risk of inhuman treatment or deferred execution of a sentence that had become tantamount to treatment contrary to Article 3 of the Convention (§50).

• Information is awaited on measures taken or envisaged to prevent future similar violations, in particular the publication of the European Court’s judgment and its broad dissemination to courts responsible for the execution of sentences. 

37201/06           Saadi, judgment of 28/02/2008 – Grand Chamber

The case concerns the danger that the applicant might be subjected to torture or to degrading or inhuman treatment (Article 3) in his country of origin, Tunisia, if the deportation order against him were to be enforced.

The applicant was lawfully resident in Italy from December 2001 to October 2002 and placed in pre-trial detention as from 09/10/2002 on suspicion among other things of international terrorism. On 09/05/2005, the Milan Assize Court found him guilty of criminal conspiracy (the previous offence of international terrorism having been thus reclassified because of the lack of evidence), of forgery and receiving, and sentenced him to four years and six months’ imprisonment. The Assize Court ordered that after serving his sentence, the applicant was to be expelled from Italy. The applicant having being released on 6/08/2006, the Minister of Interior ordered him to be deported to Tunisia (8/08/2006) under the provisions of the Law of 27/07/ 2005 on “urgent measures to combat international terrorism” and placed him in a temporary holding centre. On 3/11/2006 he was released. Meanwhile (May 2005) a military court in Tunis convicted the applicant of membership of a terrorist organisation acting abroad in peacetime and of incitement to terrorism and sentenced him to 20 years’ imprisonment.

On 07/02/2008 the Milan Assize Court of Appeal sentenced the applicant to eight years and ten months’ imprisonment, banning him from exercising public office for life and confirming the other aspects of the first- instance decision.

The European Court found that, if deported to Tunisia, the applicant ran the risk of being subjected to torture and inhuman treatment contrary to Article 3. It observed that the danger of terrorism and the difficulties states face in protecting their communities from terrorist violence should not call in question the absolute nature of Article 3. The Court reaffirmed that for a forcible expulsion to be in breach of the Convention it was necessary – and sufficient – for substantial grounds to have been shown for believing that there was a risk that the applicant would be subject to ill-treatment in the receiving country. It considered that in the present case, on the basis of the evidence received, and not rebutted by any of the evidence provided by the Italian government, there were substantial grounds to believe the risk was real. This conclusion was not challenged by the diplomatic assurances provided by the Tunisian government.

Individual measures: The European Court considered that the finding of the violation constituted just satisfaction in respect of non-pecuniary damages suffered by the applicant.

• Information provided by the Italian authorities (18/11/2009): The applicant is currently serving his prison sentence (until 27/04/2012) on the basis of the judgment of the Milan Assize Court of Appeal of 07/02/2008 (see above).

• Information is awaited at to whether there is a potential risk of the applicant being expelled when released, as well as on measures taken in his respect.

General measures: The European Court’s judgment in this case, which is of general interest inasmuch as it re-affirms the requirements of the Convention as regards deportation, deserves broad dissemination in Italian, not least via modern electronic media.

In May 2008 the judgment was published in Italian on the website of the Court of Cassation (www.cortedicassazione.it/Notizie/GiurisprudenzaComunitaria/CorteEuropea/CorteEuropea.asp <http://www.cortedicassazione.it/Notizie/GiurisprudenzaComunitaria/CorteEuropea/CorteEuropea.asp>).

• Information is awaited on the effective dissemination of the judgment, as well as on the other measures envisaged or already taken to prevent similar violations. I should be noted that the European Court has delivered 8 new judgments on the same issues (cases Abdelhedi, Ben Salah, Bouyahia, C.B.Z, Darraji, Hamraoui, O. and Soltana in Section 2.2).

10427/02          Roda and Bonfatti, judgment of 21/11/2006, final on 26/03/2007

19537/03           Clemeno and others, judgment of 21/10/2008, final on 06/04/2009

These cases concerns the violation of the applicants' right to respect for their family life due to the authorities' failure, between 1998 and 2006 (Roda and Bonfatti), and between 1997 and 2002 (Clemeno) to take the necessary measure to maintain contacts between a child and her natural family while she was in care in particular through the organisation of regular visits (violation of Article 8).

The European Court considered that the measures taken to remove the children from their family and place them in care were justified and proportionate in view of the serious allegations of abuse against members of their families. However, in the Roda and Bonfatti case, the Court held that the prolonged interruption of relations between the child and the applicants and the defective organisation of encounters between them had breached the necessary balance between the interests of the child and those of the applicants (§125).

In the Clemeno case, the Court observed that, after having been taken into care, the authorities had never made it possible for the child to meet any member of her natural family, in particular her mother, who had not faced any criminal charges, and her brother. Every link with the natural family was therefore totally and finally broken (§61).

Moreover, in the Clemeno case, the violation also concerns the authorities’ decision to put her up for adoption. In the European Court’s opinion, the reasons given by the domestic courts for such decision were insufficient in relation to the child’s best interest, which required that a decision resulting in breaking family links should be ordered only in exceptional circumstances and that everything should be done to maintain personal relations and, where appropriate, at the right time, to “reconstitute” the family (§60).

Individual measures: Both children attained majority in 2006. The European Court awarded just satisfaction to all applicants in respect of non-pecuniary damage.

General measures:

            1) Lack of contacts: During the events at the origin of these cases, Law No. 149/01 on adoption and care of minors entered into force on 24/4/2001 as regards the provisions of Title II on the placement of minors. Article 5§2 of this Title provides that social services, under instruction of the judge or according to the needs of the case, are required inter alia to ease relationships with the natural family and return within the family in the most appropriate ways. Moreover, Title III of the law, which only entered into force on 30/06/2007, provides for greater involvement of parents when taking emergency measures, not least the possibility for parents, assisted by counsel, to take part in the investigations ordered by the court, to submit claims and to ask the judge for disclosure of the file. The law confirms courts' obligation to decide within 30 days on questions related to extending, changing or revoking emergency measures. Any suspension of proceedings must be reasoned and under no circumstances exceed a year.

• Information is awaited on any other measure envisaged to prevent new, similar violations, such as training measures for social services.

            2) Declaration of adoptability: Law No. 149/01, mentioned above, also introduced new rules concerning the adoption of minors, including the “declaration of adoptability” procedure (Title III entered into force in 2007). It provided in particular greater involvement of parents since the beginning of the procedure (Article 8§4), as well as clearer rules for the different steps of the procedure itself. The procedure for appealing against a measure of the Children’s court declaring a child adoptable has not changed (Articles 14 and 16).

            3) Publication and dissemination: The Ministry of Justice translated the Roda and Bonfatti judgment into Italian and sent it out to the competent authorities (courts concerned, Prosecutor General and Secretary General of the Court of Cassation) with a note recalling the principles of the judgment and the decision, and asking for its further dissemination to all judges. The judgment has also been published on the Internet site of the Court of Cassation (http://www.cortedicassazione.it/Notizie/GiurispridenzaComunitaria/CorteEuropea), and in the database of this Court 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.

The Clemeno judgment has also been published in the Court of Cassation database mentioned above.

• Information is awaited on the dissemination of the Clemeno judgment to children’s courts and social services.

59909/00          Giacomelli, judgment of 02/11/2006, final on 26/03/2007

The case concerns the failure of the Italian authorities in their duty to protect the applicant's private life and home. She had been living since 1950 in a house in Brescia, located 30 metres from a plant for the storage and treatment of “special waste” operated by a commercial company since 1982.

The European Court held that the state authorities had failed to comply with domestic legislation on environmental matters as neither the decision to authorise the commercial company to operate the plant, nor the decision to authorise the company to treat industrial waste by means of “detoxification”, were preceded by an appropriate investigation or study conducted in accordance with the statutory provisions applicable in such matters. Furthermore, it has found that the authorities had refused to enforce judicial decisions dating from 29/04/2003 and 25/05/2004, in which the authorisation to operate the plant issued in 1999 was found to be unlawful, thereby rendering inoperative the procedural safeguards available to the applicant and breaching the principle of the rule of law.  Consequently, the state did not succeed in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant's effective enjoyment of her right to respect for her home and her private and family life (violation of article 8).

Individual measures: The Court awarded to the applicant just satisfaction in respect of the non-pecuniary damage suffered. Furthermore, it should be noted that, following an environmental impact assessment (VIA) carried out in 2004, on 28/04/2004 the Ministry of the Environment adopted a decree approving the continued operation of the plant provided that it complied with the requirements fixed by the Lombardy region. The implementation of these requirements was to be verified upon renewal of the authorisation to operate the plant in 2004.

The Court did not put in question the evaluation of the Ministry of the Environment. However, it concluded that there has been a violation of Article 8: even supposing that, following the decree at issue, the measures and requirements indicated had been implemented by the relevant authorities and the necessary steps taken to protect the applicant's rights, the fact remains that for several years her right to respect for her home was seriously impaired by the dangerous activities carried out at the plant (§96).

The authorities indicated that on the basis of the Decree of the Ministry of the Environment of 28/04/2004 mentioned above, the Lombardy region adopted Decree No. 7/20118 of 23/12/2004 authorising the treatment of all types of waste by the commercial company. Therefore the authorities considered that the authorisation procedure has been fully regularised and that no negative consequence remains.

• It would be useful to have the confirmation that the requirements listed in the decree of the Ministry of the Environment of 2004 have been implemented.

• Assessment: the information is being assessed.

General measures:

• Information is awaited on the publication and dissemination of the European Court judgment to the Ministry of the Environment authorities so that they may take the Court's findings into account and be aware of their obligations pursuant to the Convention.

25337/94          Craxi No. 2, judgment of 17/07/03, final on 17/10/03

The case concerns the infringement of the applicant’s right to respect of his private life on account of the publication, in 1995, of telephone interceptions made in the context of criminal proceedings brought against him during the so-called “clean-hands” campaign.

The European Court, having noted that the divulging of the conversations through the press was likely to have been caused either by a malfunction of the registry or by the press obtaining information from one of the parties to the proceedings, concluded that the national authorities had failed in their positive obligation to provide safe custody of the transcripts and to subsequently carry out effective inquiries as to how these private communications were released into the public domain (violation of Article 8).

The European Court furthermore held that the failure by the Milan District Court to apply to the applicant the safeguards provided by Article 268 of the Italian Code of Criminal procedure (enabling the defence to have advance knowledge of the transcripts, to examine them and eventually obtain their exclusion) before reading out the telephone interceptions at the hearing of 29/09/95, had violated the applicant’s right to respect of his private life (violation of Article 8).

Individual and/or general measures: The applicant died in January 2000.

• Information is expected on the publication of the judgment of the European Court and its dissemination to criminal jurisdictions.

• The assessment of other possible general measures is underway.

26740/02           Grande Oriente d’Italia di Palazzo Giustiniani No. 2, judgment of 31/05/2007, final on 31/08/2007

The case concerns interference in the right to freedom of association of Grande Oriente d'Italia di Palazzo Giustiniani, a Masonic association. The European Court noted that in the Friuli Venezia Giulia Region, pursuant to article 7bis ante, paragraph 5, of Regional Law No. 75 of 23/06/1978 as modified by Regional Law No. 1 of 2000, among the members of non-secret associations, only members of Masonic associations are required to declare their membership when applying for certain posts in regional government (together with the members of secret organisations). The Court found that there was no objective or reasonable justification for this difference of treatment between members of non-secret associations (violation of Article 14, taken together with Article 11).

Individual measures: The applicant’s association invoked non-pecuniary damage in respect of its image and the reputation of its members. It invoked no individual pecuniary damage. The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measures therefore seem necessary.

General measures: Under the terms of Law No. 1 of 2000 of the Friuli Venezia Giulia Region, which modified Regional Law No. 75 of 1978, candidates for posts under the authority of the region must declare any membership of associations which are Masonic or in any event secret. Failure to make such declaration is a condition of ineligibility. The European Court, examining the case from the viewpoint of non‑discrimination, considered that membership of many other non-secret associations might equally pose threats to national security or the defence of public order if their members were designated to posts of public responsibility. However, the members of such associations were not – unlike members of masonic associations – required to make a declaration of their membership. The imposition of such an obligation on free-masons alone has no objective or reasonable justification (§§ 55-56).

Regional Law No. 2 of 23/01/2008 amended article 7bis ante, paragraph 5, of Regional Law No. 75 of 23/06/1978, which was at the basis of the violation found by the European Court. The latter article does no longer make reference to Masonic associations. 

To prevent future, similar violations, the judgment of the European Court has 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.

• Assessment: no further general measures therefore seem necessary.

- 2 cases concerning insufficient compensation for expropriation

68309/01           Cignoli and others, judgment of 09/12/2008, final on 09/03/2009, rectified on 09/06/2009

15581/05           Pierotti, judgment of 20/01/2009, final on 20/04/2009

These cases concern a violation of the applicants' right to the peaceful enjoyment of their possessions due to the disproportionately low compensation awarded to them (in 2000 and 2004 respectively) following the lawful expropriation of their property in 1980. The amounts, which were fixed under Article 5bis of Law No. 359 of 1992, were significantly less (less than half) than the market value of the property, and furthermore taxed at a rate of 20%, without any public-interest ground capable of justifying this (violations of Article 1 of Protocol No. 1).

The European Court found that the expropriations at issue represented for the applicants a disproportionate and excessive burden since it did not form part of any economic, social or political reform or of any other exceptional circumstance. Thus it could find no legitimate public-interest objective to justify reimbursement at less than market value of the property.

Individual measures: No individual measure is necessary since the European Court awarded just satisfaction in respect of the full amount of pecuniary and non-pecuniary damage sustained. As regards the amount of the pecuniary damage, the Court awarded “an amount corresponding to the difference between the value of the property at the time of expropriation and the amount obtained at domestic level, plus indexation and interests so as to offset, at least in part, the long period for which the applicants have been deprived of the land” (§37of the Cignoli judgment).

General measures: Under Article 46 in a judgment concerning, inter alia, the same issues (Scordino No. 1, 36813/97, Mostacciuolo group, Section 4.2) the European Court considered that “the respondent State should, above all, remove every obstacle to the award of compensation bearing a reasonable relation to the value of the expropriated property, and thus ensure, by appropriate statutory, administrative and budgetary measures, that the right in question is guaranteed effectively and rapidly in respect of others claimants affected by expropriation of property, in accordance with the principles of the protection of pecuniary rights set forth in Article 1 of Protocol No.1, in particular the principles applicable to compensation arrangements” (§237). The Court has also underlined that “in many cases of lawful expropriation, such as a distinct expropriation of land with a view to building a road or for other purposes “in the public interest”, only full compensation can be regarded as reasonably related to the value of the property (see The former King of Greece and Others (just satisfaction), No. 25701, § 78). However, legitimate objectives of “public interest”, such as those pursued by measures of economic reform or measures designed to achieve greater social justice, may call for reimbursement of less than the full market value” (§28 Cignoli and others, §50 Matteoni and others, § 256 Scordino No. 1).

The Court of Cassation responded with three Orders (one of 29/05/2006 and two of 19/10/2007) all raising the problem of the compliance of Article 5bis of Law No. 359 of 1992 with the Constitution and the Convention.

• Declaration of unconstitutionality by the Constitutional Court: In its decision No. 348 of 24/10/2007, the Constitutional Court declared Article 5bis unconstitutional, and, consequently, also paragraphs 1 and 2 of Article 37 of the Consolidated Text containing measures reforming expropriation (Presidential decree No. 327 of 2001, modified in 2002 and in force since 2003), which endorsed this provision. The Constitutional Court's reasoning underlined the incompatibility of the provision at issue with both Article 42 of the Constitution and Article 1 of Protocol No. 1 to the Convention, on account of the inadequate amount of compensation provided (between 30 and 50% of the estimated market value of the property) subsequently taxed at a rate of 20%. According to the Constitutional Court, such compensation was neither reasonably related to the property value, as advocated by the Strasbourg Court, nor coherent to the notion of “serio ristoro” (serious restoration) affirmed in its own case-law on the subject. However, the Constitutional Court recalled that the legislator will not be obliged to award full compensation: when seeking for a “fair balance” between the demands of the general and individual interests, the legislator will have to take into account the social function of property as protected by Article 42 of the Constitution. The declaration of unconstitutionality determined the retroactive non-application of the provision at issue in all pending domestic proceedings.

• Legislative changes: The Act on the 2008 Budget (Law No. 244 of 24/12/2007) amended the Consolidated text on expropriation, in particular Article 37, paragraphs 1 and 2. The amended article provides that compensation for expropriation of building land must be fixed at the level of the market value of the property. If the expropriation is carried out pursuing objectives of economic, social or political reform, compensation may be diminished by 25%. The provision at issue applies to all pending proceedings, with the exception of proceedings in which compensation for expropriation has been already accepted or has been finally fixed.

TheItalian authorities indicate that recent judgments of the Court of Cassation on the subject (Section 1, judgments No. 26275 of 14/12/2007, No. 599 of 14/01/2008, and No. 3175 of 11/02/2008) confirmed the application of this criterion for compensation, meanwhile recalling the European Court's case law on the amount thereof. According to this case-law, full compensation must be awarded when the lawful expropriation is carried out for a distinct objective of public interest. Instead, the reimbursement may be lower than the full market value of the property if the expropriation is carried out in view of legitimate public interest objectives, such as those pursued by economic, social or political reforms. The amount must then be converted to current value to offset the effects of inflation and interest must be paid; it must also be completed by compensation for the occupation of the property (interest calculated on the compensation for expropriation for the period previous to expropriation).

• Assessment: The legislative changes introduced, combined with the case-law of the Constitutional Court and the Court of Cassation, have evolved the situation in the direction recommended by the European Court, that is to “remove every obstacle to the award of compensation bearing a reasonable relation to the value of the expropriated property, and thus ensure, by appropriate statutory, administrative and budgetary measures, that the right in question [right to the peaceful enjoyment of possessions] is guaranteed effectively and rapidly in respect of others claimants affected by expropriation of property”. In particular, Law No. 244 of 2007, as well as the judgments of the Court of cassation, have confirmed the European Court’s approach to the extent that they provide for compensation bearing a reasonable relation to the value of the expropriated property and for its modification according to the nature of expropriation, that is an isolated expropriation or an expropriation pursued by measures of economic reform or to achieve greater social justice. In these circumstances, no further general measure seem necessary.

36822/02           Bracci, judgment of 13/10/2005, final on 15/02/2006

62094/00           Majadallah, judgment of 19/10/2006, final on 26/03/2007

These cases both concern the unfairness of certain criminal proceedings which resulted in the applicants' conviction on the basis of testimony given at the investigatory stage by witnesses whom the applicants were unable to examine or to have questioned, in breach of their right to a fair trial (violations of Article 6§§1 and 3d).

In the Bracci case, the proceedings, which concerned a number of offences (robbery, sexual abuse, illegal possession of a weapon) against various victims, resulted on 5/12/2000 in the applicant's conviction and sentence to six years' imprisonment. The European Court noted that the part of the conviction based solely on the testimony given before the trial by the victim who then disappeared, had hampered the rights of the defence in a manner incompatible with the guarantees of the Convention

In the Majadallah case, the applicant was convicted on 22/01/1998 of sexual assault, public obscenity, bodily harm and drunkenness and sentenced to a year and four months' imprisonment, without having had the possibility of examining his accusers, who did not attend the proceedings.

Individual measures: In both cases the European Court found that the finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicants.

            1) Bracci case: The applicant appealed by means of an “incidente d'esecuzione” to the Rome Tribunal in respect of its competence to supervise the enforcement of sentences, maintaining that his sentence was illegal on account of the violation found by the European Court. The Tribunal admitted his appeal on 25/09/2006 and ruled his conviction illegal. The applicant was thus dispensed of this sentence. The Rome Tribunal noted that Italy, unlike other European states, did not yet dispose of means of reopening proceedings following judgments of the European Court, and underlined the need to introduce such means into the national judicial system so as to give effect to the Convention as interpreted by the European Court. Observing the impossibility of securing reopening by jurisprudential means, the Rome Tribunal decided to establish the unlawfulness of the applicant's detention by declaring the sentence unenforceable.

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

            2) Majadallah case: The applicant appealed first before the Florence Appeal Court and subsequently to the Court of Cassation, which upheld his conviction by a decision of December 1999.

• Information is awaited on the applicant's present situation and on a possible request on his part for reopening of the criminal proceedings which led to his conviction. In this context, it would be useful to have information on the consequences the Italian authorities intend to draw in general terms from the finding by the Rome Tribunal mentioned above and from the Court of Cassation's judgment of 1/12/2006 in the Dorigo case (Final Resolution CM/ResDH(2007)83).

It should also be noted that in its judgment of 30/04/2008 the Constitutional Court addressed a vigorous invitation to the legislature to enact measures to permit reopening of proceedings following the finding of a violation of Article 6 of the Convention.

General measures: The European Court has stated that, where a conviction is founded solely or to a significant degree on the testimony of a witness whom the defendant cannot cross-examine or have cross‑examined, be it at the investigative or the trial stage, defence rights are restricted in a manner incompatible with the guarantees provided by Article 6 (§55).

Article 512 of the Italian Code of Criminal Procedure still provides the possibility of convicting on the basis of testimony which the defendant cannot test, but only when, due to unforeseeable circumstances, it is impossible to reproduce the testimony in question.

In its judgment No. 4331 of 18/10/2007, the Court of Cassation recalled the obligation to comply with final judgments of the European Court under Article 46 of the Convention, and emphasised that Article 512 of the Code of Criminal Procedure must be interpreted in conformity with the Convention.

A change of law does not seem strictly necessary in principle, provided that the existing law is applied in conformity with the principles flowing from the European Court's case-law. Thus to this end the publication of the European Court's judgment is necessary, as well as broad dissemination to courts, together with any other measure likely to ensure that the case-law of Italian Courts is aligned with the requirements of the Convention.

• Information on this is awaited. As the Court of Cassation is organising the publication of the European Court's case-law on its website, it would be helpful to know whether the judgments in these cases will be translated in full into Italian and published in this context.

58295/00           Zagaria, judgment of 27/11/2007, final on 07/07/2008

The case concerns the infringement of the applicant's right of defence on the ground that he had not been able to communicate confidentially with his lawyer (violation of Article 6§3 c in conjunction with Article 6§1).

Being subject to the special prison regime provided by Article 41bis of the Prisons Act applicable to prisoners convicted of offences linked with the Mafia which, inter alia, limited contacts with the outside world, the applicant was not brought to the hearing room from the prison to attend hearings. Instead, he followed the hearings by means of an audiovisual link to the hearing room, in accordance with the relevant legislation (Article 146bis of the enforcement provisions of the Code of Criminal Procedure). According to this provision, the accused may always communicate confidentially with his lawyer during the hearings by appropriate technical means. In 2000, it appeared from the file that a confidential telephone call between the applicant and his lawyer was overheard and reported by a prison warder in 1999.

The European Court considered that if the accused's participation in hearings by videoconference was not in itself contrary to the Convention, the organisation of such participation must be compatible with the right to defence. In particular, “ the possibility for the accused to give confidential instructions to his counsel at any moment when his case is debated and evidence is provided to the jurisdiction of merit is an essential element of fair proceedings” (§33). The Court therefore concluded that the alleged interference was unlawful: the authorities' weak reaction in closing criminal proceedings and taking no disciplinary action against the prison warder who infringed the confidentiality requirement gave the applicant no guarantee that the incident would not reoccur (§ 35).

Individual measures: In the proceedings at issue the applicant was sentenced in 2000. The European Court recognised that “the overheard conversation did not appear to have any direct link with the merits of the criminal charges or the defence strategy” and it 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 this case explicitly provides confidentiality of communications between accused and counsel, which must be ensured through appropriate technical means (Article 146 bis, paragraph 4). Moreover, following to the facts at issue, better insulated telephone cabins were installed in prisons (§ 16).

In order to prevent similar violations, the judgment of the European Court has been published in the database of the Court of Cassation, with a full translation in Italian (www.italgiure.giustizia.it). This website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.

• Assessment: given the isolated nature of the case, no further general measures seem necessary.

64088/00          Pilla, judgment of 02/03/2006, final on 02/06/2006[34]

55764/00          Zečiri, judgment of 04/08/2005, final on 04/11/2005[35]

- 2 cases concerning the lack of a public hearing in proceedings for the application of preventive measures

399/02              Bocellari and Rizza, judgment of 13/11/2007, final on 02/06/2008

1905/05            Perre and others, judgment of 08/07/2008, final on 08/10/2008

These cases concern the fact that the applicants were prevented from requesting a public hearing in proceedings to apply preventive measures against them in 1997 and 1999 (violations of Article 6§1). The proceedings were to authorise the seizure of the applicants’ property and movable assets on account of suspicions that the first applicant in Bocellari and Rizza and the father-in-law of the first applicant in Perre were members of a criminal organisation.

The European Court considered it essential that parties to proceedings for the application of preventive measures were at least offered the opportunity to request a public hearing before the specialised divisions of the ordinary and appeal courts. It also noted that the domestic law did not provide such possibility.

Individual measures: The European Court held that the finding of the violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. In each of these cases (in 1999 in the Perre case and in 2000 in the Bocellari and Rizza case), following the proceedings at issue which resulted in the confiscation of many assets, the relevant applicants had been subject to police surveillance measures and compulsory residence orders in Milan and Palmi, for four and five years respectively.  

However, it should be noted that the applicants did participate in the proceedings; in particular they took part in the hearing in 1999 (Bocellari and Rizza) and 1997 (Perre) with the participation of the public prosecutor. In addition, two levels of jurisdiction decided on the merits of the case.

• Assessment: in these circumstances and taking into consideration the nature of the violation, no further individual measure seems necessary.

General measures:

            1) Legislative measures: Article 4 of Act No. 1423/1956, as amended by Act No.646/1982, on the application of preventive measures to persons “representing a danger to public security and morality” provides that the court decides in chambers after hearing the public prosecutor and the interested party, who may submit a pleading and be represented by counsel. Act No. 575/1965 complemented the 1956 Act by introducing provisions dealing with persons suspected of belonging to mafia-like associations; its Article 2 ter provides that the court may also decide in chamber. The law does not provide the possibility for parties to request a public hearing.

In a similar case, currently pending, the Court of Appeal of Santa Maria Capua Vetere questioned the constitutional legitimacy of Articles 4 of Act No. 1423/1956 and 2ter of Act No. 575/1965 with respect to Articles 117, first paragraph, and 111, first paragraph of the Constitution. The question of constitutional legitimacy has been prompted by the recent case-law of the European Court, i.e. the present cases, and also the Constitutional Court’s case-law on expropriation (judgments Nos. 348/2007 and 349/2007), which clarified, inter alia, the position of the European Convention in the national hierarchy of norms through the interpretation of Article 117. This article provides that “legislative power is exercised by the state and the regions in the respect of the Constitution, as well as of the obligations following from the European Community legal order and from international instruments”. According to the Constitutional Court’s interpretation of Article 117, the Convention’s provisions are sub-constitutional norms interposed between ordinary law and the Constitution.

By virtue of Article 117, the provisions of the Convention as interpreted by the European Court complement those of the Constitution and determine the international obligations binding upon the legislative power vested in the state and the regions. Where there is a doubt as to the compatibility between ordinary law and the Convention, it is up to the Constitutional Court to verify the Convention’s compatibility with the Constitution, as well as the compatibility of the ordinary law with the Convention. The Constitutional Court may then, if need be, order the non-application of ordinary law due to its unconstitutionality.

• Information is awaited on the Constitutional Court’s decision.

            2) Publication and dissemination: A summary of the judgment in the Bocellari and Rizza case has been published in Italian in the database of the Court of Cassation on the European Court (www.italgiure.giustizia.it).

This web site is widely used by all those who practice law in Italy, civil servants, lawyers, prosecutors and judges alike.

- 2 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. 

- 10 cases concerning the special prison regime provided by Article 41bis of the Prison Administration Act (Articles 6§1 and 13)[36]

41576/98          Ganci, judgment of 30/10/03, final on 30/01/04

56317/00          Argenti, judgment of 10/11/2005, final on 10/02/2006

35795/02           Asciutto, judgment of 27/11/2007, final on 07/07/2008

60915/00          Bifulco, judgment of 08/02/2005, final on 08/05/2005, Interim Resolution ResDH(2005)56

53723/00          Gallico, judgment of 28/06/2005, final on 28/09/2005

25498/94          Messina Antonio No. 2, judgment of 28/09/00, final on 28/12/00,
Interim Resolution ResDH(2001)178

33695/96          Musumeci Carmelo, judgment of 11/01/2005, final on 06/06/2005

60395/00           Papalia, judgment of 04/12/2007, final on 04/03/2008

42285/98          Salvatore, judgment of 06/12/2005, final on 06/03/2006

8316/02            Viola, judgment of 29/06/2006, final on 29/09/2006

- 3 cases concerning de facto expropriation on account of the authorities' refusal to allow the applicants to build on their land on the basis of expropriation orders which had expired more than 20 years before[37]

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

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

- 83 cases mainly concerning the effectiveness of the compensatory remedy (Pinto Act)

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

These cases concern judicial proceedings in which the applicants appealed to domestic courts to obtain compensation under the Pinto Act. They received compensation but the amount was insufficient and the payment delayed, which did not cause the applicants to loose their “victim” status and constituted an aggravating circumstance regarding the breach of the requirement of “reasonable time” (violation of Article 6§1).

The European Court found in all these cases that the national redress available turned out to be inadequate for the following reasons:

(1) the amount of compensation awarded by domestic courts, or, if need be, the refusal to award  compensation, was not enough compared to what the European Court awarded in just satisfaction in comparable cases;

(2) the amount of the awards was reduced by certain fees, for example court decision registration fees;

(3) the inadequacy of the compensation was compounded by the fact that it was paid with unacceptable delay: in some cases enforcement proceedings had to be brought to secure payment.

Four of these cases (Scordino n°1, Stornaiuolo, Gigli Costruzioni S.R.L., and Pisacane and others) concern also a violation of the applicants' right to the peaceful enjoyment of their possessions due to the disproportionately low compensations awarded to them following the lawful expropriation of their property (violations of Article 1, Protocol No. 1) as well as of the right to fair proceedings due to the retroactive application of a new compensation regime providing payments lower than the market value of the property (violations of Article 6§1). For these aspects, these four cases present similarities to the Sarnelli group (37637/05, Section 6.1), for which individual and general measures have already been adopted.

Individual measures: In all these cases, “the Court considers, however, that where an applicant can still claim to be “a victim” after exhausting that domestic remedy he or she must be awarded the difference between the amount obtained from the court of appeal and an amount that would not have been regarded as manifestly unreasonable compared with the amount awarded by the Court if it had been awarded by the court of appeal and paid speedily” (Cocchiarella, §140). In practice, the Court examined the percentage that the national compensation represented in comparison to the amount it would have awarded as just satisfaction in the absence of the domestic remedy. When the Court considers the national compensation unreasonable, it awards an additional sum for the non-pecuniary damages sustained by the applicants, as well as, if necessary, a supplementary sum for the frustration endured while waiting for the payment of the compensation due from the state. With respect to the delay in payment, the Court also considered that, in order to be effective, a compensatory remedy must be accompanied by adequate budgetary provision so that effect can be given, within six months of deposit with the registry, to appeal court decisions awarding compensation, which, in accordance with the Pinto Act, are immediately enforceable (section 3(6) of the Pinto Act) (Cocchiarella §§101 and 130 in the framework of the application of Article 46).

The authorities indicated that in all cases, the applicants received the compensation awarded by domestic courts under the Pinto Act.

• Assessment: in these circumstances, no further individual measures seem necessary.

General measures: It should be noted that the issue of the excessive length of judicial proceedings before administrative courts will be examined at the 1078th meeting (March 2010) and of other types of proceedings at the 1086th meeting (June 2010).

As to the current application of the Pinto remedy, the European Court concluded that there was a large-scale problem and under Article 46 of the Convention invited the Italian authorities “to take all measures necessary to ensure that domestic judgments [in the context of the Pinto procedures] are not only compatible with the Court's case-law, but also enforced within six months of their deposit with the registry”.

The following issues arise:

1) Measures to ensure adequate compensation:

(a) Increase of compensatory amounts: With its decisions no. 1338, 1339, 1340 and 1341 dated 27/11/2003, the United Sections of the Court of Cassation underlined the need for courts of appeal to follow the case-law of the European Court when applying the Pinto Act. In particular, in its decision No. 1340, the Court of Cassation stated that “the determination of non-pecuniary damage by the court of appeal in conformity with Article 2 of Law No. 89/2001, although by nature based on equity, has to be done within the limits established by the Law, as it must be consistent with the amounts granted in similar cases by the Court of Strasbourg, although it is possible to move away from its parameters in a reasonable way” (§13 in Simaldone). Case-law subsequent to the judgments delivered in 2004 shows that the Court of Cassation took into consideration the case-law of the European Court concerning the just amount of the compensation to be awarded in proceedings brought under the Pinto Act. See, ex multis, decisions Nos 21857 of 11/11/2005, 19288 of 3/10/2005, 19029 of 29/09/2005, 18686 of 23/09/2005, 19205 of 30/09/2005, 8034 of 6/04/2006, 2247 of 2/02/2007, 16086 of 8/07/2009.

• Assessment: the developments of the case-law of the Court of Cassation concerning the award of compensation for excessive length of proceedings are welcomed. Information on the current practice of the Courts of Appeal and statistical data on the case-law on this issue would also be useful for a full evaluation.

(b) Reduction or removal of procedural fees: The decree of the President of the Republic No. 115 of 30/05/2002, published in the Official Journal No. 139 of 15/06/2002, abolished all procedural fees related to proceedings under the Pinto Law (section 10). Moreover, pursuant to decision No. 522 of the Constitutional Court (6/12/2002), no fee is payable for obtaining the original or a copy of a decision needed to proceed with the execution.  

• Assessment: based on these legislative modifications, no further measures seem necessary in this respect.

2) Measures to ensure rapid enforcement of court decisions: delay in payment of compensation:

(a) Finding of the European Court: The Court pointed out it could “accept that the authorities need time in which to make payment. However, in respect of a compensatory remedy designed to redress the consequences of excessively lengthy proceedings, that period should not generally exceed six months from the date on which the decision awarding compensation becomes enforceable” (Cocchiarella, §89). The European Court stressed “the fact that, in order to be effective, a compensatory remedy must be accompanied by adequate budgetary provision so that effect can be given within six months of their being deposited with the registry to decisions of courts of appeal awarding compensation, which, in accordance with the Pinto Act, are immediately enforceable” (Apicella, § 99). The Court also considered that “the late payment, following enforcement proceedings, of amounts owing to the applicant cannot cure the national authorities’ longstanding failure to comply with a judgment and does not afford adequate redress” (Cocchiarella, §89). Finally, it reiterated that “it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt” (ibid., §90).

The European Court's judgments show that delays in payment are due to the slowness of procedure, which oblige applicants to bring enforcement proceedings, and to financial obstacles preventing the payment of compensations. In his report on the administration of justice for 2007, the President of the Court of Cassation stated that the sums asked for from the state in application of the Pinto Act increased from 1.7 million euros in 2002 to 17.9 million in 2006. In Interim Resolution CM/ResDH(2007)2, the Ministers' Deputies also noted “the constant increase in the amounts paid in compensation by the state in this respect”.

This issue requires urgent action by the Italian authorities, considering that the Court noticed that since September 2007, more than 500 applications concerning exclusively the delay in payment of compensation under the Pinto Act have been communicated to the Italian government. However, the Court noted that between 2005 and 2007, courts of appeal competent under the Pinto Act delivered some 16 000 judgments, “so that the number of applications filed before the Court concerning the delay in payment of the “Pinto” compensations, although relevant, does not reveal, for the time being, a structural ineffectiveness of the “Pinto” remedy”. In particular, the Court drew the government’s attention to “the necessity for the national authorities to adopt all adequate and sufficient means to assure the respect of the obligations lying with them on the basis of the accession to the Convention and to avoid the docket of the Court being blocked by a relevant number of repetitive cases concerning the compensations awarded by the Courts of appeal in the framework of the “Pinto” procedures and/or the delay in payment of the compensations at issue, which constitutes a threat for the effectiveness in the future of the mechanism of the Convention” (Simaldone, §§82-85).

(b) Draft law modifying the Pinto Act. In Resolution CM/ResDH(2009)42 the Committee strongly encouraged the Italian authorities “to consider amending the Pinto Act with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings”.

A draft law modifying the Pinto Act was submitted in March 2009 to the Italian Parliament and is currently under discussion. The main modifications proposed concern both procedural and substantial aspects, in particular: 

(i) the first phase consists in a non-judicial procedure, free of charge , in which the applicant submits to the President of the Court of Appeal a standard request for compensation – based on a predetermined model. The assistance of counsel is not required (Section 3);

(ii) the decision of the President of the Court of Appeal is served on the Ministry concerned, which will have to pay the compensation awarded within 120 days from service;

(iii) damages are paid only for the period exceeding the “normal length of proceedings”, the latter being 3 years for the first instance, 2 years for the second instance and 1 year for proceedings before the Court of Cassation (Section 2§ 3-ter);

(iv) postponement of hearings not exceeding 90 days, requested or agreed by the parties, is not considered in calculation of damages (Section 2§3-bis);

(v) the amount of damages is reduced by up to ¼ where the claims in the main proceedings have been rejected or it appears evident that they are unfounded (Section 2§3-quarter);

(vi) every year the government will determine the maximum and minimum amounts to be awarded in proceedings under the Pinto Act, to avoid non-homogeneous awards by different courts or awards non proportionate to the damages suffered (Section 3§4).

• Assessment: A preliminary assessment of the draft law underlines some positive aspects, such as the introduction of a first non-judicial phase before the Court of Appeal, aimed at speeding up the Pinto procedure. On the contrary, the method of calculation of damages (Section 2) might lead to outcomes not in line with the case-law of the European court, especially when the length of proceedings is slightly beyond the (non awarded) “normal length” (i.e. first instance proceedings lasting 4 years).

• Information is awaited on the status of the draft law before the Parliament and on the provisional calendar for its adoption. Clarification by the authorities on the functioning of the provisions concerning the calculation of the period relevant for compensation would be appreciated. Information is also awaited on how and to what extent the budgetary provisions (Section 3§4) will resolve the problem of delay in payment, as well as on any other further means envisaged to this end.

- 118 cases concerning the length of proceedings concerning civil rights and obligations before administrative courts[38]

(see also, for more detailed information, CM/Inf/DH(2005)31, CM/Inf/DH(2005)31-add, CM/Inf/DH(2005)31-add2, CM/Inf/DH(2005)33, CM/Inf/DH(2005)39, CM/Inf/DH(2008)42

Interim Resolutions DH(97)336, DH(99)436, DH(99)437, ResDH(2000)135 ; CM/ResDH(2007)2,CM/ResDH(2009)42

                        (See Appendix for the list of cases)

- 9 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 (58442/00, Section 6.2) and the Kornakovs case (61005/00, 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.

62393/00           Kadiķis No. 2, judgment of 04/05/2006, final on 04/08/2006

The case concerns the conditions of the applicant’s administrative detention in the temporary confinement suite of the Liepaja State Police station from 28/04/2000 to 13/05/2000 (15 days).

The European Court noted that the cell in which the applicant was detained, usually with 3 or 4 other people, measured 6m², of which less than half was available for all the co-detainees to move about in. There was no natural light and the ventilation system did not work properly, stopping often. There was no exercise yard and the only time the applicant could leave the cell was to go to the lavatory or to the washroom. The applicant had no bed, but had to share a wooden platform 2.1m x 1.7m with his cellmates. There was no bed-linen and the prisoners slept fully clothed on bare boards. During the applicant’s detention, only one proper meal per day was served and it was prohibited for the detainees to receive foodstuffs from outside. Finally, there was neither drinking water nor even running water in the cell.

The European Court found that, although there was no evidence of any intention on the part of the Latvian authorities deliberately to humiliate or diminish the applicant, this treatment was nonetheless degrading (violation of Article 3).

The case also concerns the absence of an effective remedy whereby the applicant might complain about the conditions of detention (violation of Article 13).

Individual measures: The applicant was freed in May 2000. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Assessment: no further measure seems necessary.

General measures:

            1) Violation of Article 3: The Latvian authorities have provided a list of measures taken in 2004‑2006 in order to ensure that the conditions in temporary confinement suites are in conformity with the Convention’s requirements. In most of the temporary detention institutions (TDI) much repair work has been done (for example repairing ventilation systems and the sanitary facilities). In December 2005 a new building complex was opened by the Liepaja Town and Regional Police Department, including a new TDI. 

• Further information is awaited on other measures taken concerning the specific problems identified by the Court, for example overcrowding, natural light, ventilation, physical exercises, meals, running water, bed linen etc.

            2) Violation of Article 13: The Cabinet has decided to establish a working group to examine whether legislative amendments are necessary to ensure that an effective remedy is available for complaints concerning the conditions of detention. The working group was established under the auspices of the Ministry of Justice and it began its work in November 2006. So far the working group has decided that it will become a permanent forum for discussing the necessary steps to be taken to execute the European Court’s judgments. The composition of the working group will be adjusted to include experts in the relevant fields. Furthermore, the working group has decided to examine the issue of effective examination of individual complaints concerning the conditions of detention in a broader context than the present judgment. For instance, it will cover not only the deadlines for these complaints but also such issues as the procedure for examining complaints made by illegal immigrants, appeal proceedings against decisions imposing administrative detention and the related conditions.

• Further information is awaited on the reflections of the working group and on the question of the need to adopt legislative measures and, if such measures are foreseen, on the timetable for their adoption.

            3) Publication and dissemination:

• In any event, publication and dissemination of the European Court’s judgment to the relevant authorities and courts are expected, possibly accompanied by a circular or note explaining the problems identified by the European Court.

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 (61005/00, 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.

73819/01          Estrikh, judgment of 18/01/2006, final on 18/04/2007

67275/01           Čistiakov, judgment of 08/02/2007, final on 08/05/2007

These cases concern the excessive length of the applicants’ detention on remand due to insufficient grounds to justify detention and the unlawfulness of its extension from 20/04/1999 to 23/08/2000 (Estrikh case) as well as the absence of “particular diligence” (Čistiakov case) (violations of Article 5§3). They also concern the excessive length of criminal proceedings against the applicants (violations of Article 6§1).

The Estrikh case further concerns the violation of his right to respect for his family life on account of the restrictions imposed on visits by his partner, with whom he had lived for five years, and their child, as well as his expulsion upon his release from prison. The European Court considered this expulsion had not been provided by law (violation of Article 8).

The Čistiakov case concerns, in addition, the unlawfulness of prolonged detention on remand without legal basis as he was detained eight more days after the expiry of his detention order (violation of Article 5§1(c)) as well as the censorship of his correspondence while in detention on the basis of inadequate rules (violation of Article 8).

Individual measures: The applicants are no longer detained on remand as their convictions have become final. On 29/08/2002, Mr Estrikh was expelled from Latvia to the Russian Federation. The European Court concluded that the applicant was expelled on the basis of his criminal judgment which at the time of the expulsion had not yet become final and the administrative proceedings concerning his expulsion were still pending.

• Information is awaited as to whether Mr Estrikh may re-enter Latvia.

General measures: These cases present similarities to those of Lavents (58442/00) (Section 1.1) and Kornakovs (61005/00) (Section 5.3)

            1) Problems already solved (see Lavents and Kornakovs cases):

- Violation of Article 5§3: The applicants’ detention was prolonged under Article 77 of the Code of Criminal Procedure, which did not provide any precise legal basis for such extension and has now been repealed by a law of 20/01/2005 which entered into force on 01/02/2005. Moreover, the new Law on Criminal Procedure entered into force on 01/10/2005. The new law introduces a post of investigative judge whose main function is to supervise the observance of human rights in criminal proceedings. The judge decides on the application and extension of certain means of restraint (detention, house arrest, placement in an institution) as well as on complaints related to other means of restraint (e.g. restraint orders, bail, conditions of police supervision). The new law also imposes various time-limits for pre-trial detention. In May 2003, the Human Rights Institute of the University of Latvia organised a seminar on detention issues for judges, prosecutors, practicing lawyers and governmental and parliamentary representatives.

- Violation of Article 6§1: There does not seem to be a systemic problem of excessive length of criminal proceedings in Latvia.

- Violation of Article 8 (family visits): Concerning family visits, on 29/04/2003 the Latvian government adopted the Regulation on the internal rules of provisional detention centres, which provides inter alia that such establishments should allow detainees to have contact with their families or others.

- Violation of Article 8 (correspondence): Concerning prisoners’ correspondence, the new Law on Criminal Procedure and the new internal Rules of pre-trial detention centres provide stricter conditions for monitoring of correspondence during the pre-trial investigation (see Kornakovs case).

            2) Outstanding issues:

- Violation of Article 5§1(c) (unlawful detention): As regards Mr Čistiakov’s detention of eight days after the expiry of his detention order, the violation was due to a wrongful application of national law.

- Violation of Article 8 (unlawful expulsion): As regards the expulsion from Latvia, the violation was also due to a wrongful application of national law.

• Therefore are expected: publication and dissemination of the European Court’s judgments to the competent authorities. Information on other possible measures would also be useful.

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.

70930/01           Blumberga, judgment of 14/10/2008, final on 14/01/2009

This case concerns a violation of the applicant’s right of access to court in civil proceedings due to the rejection of her request to be exempted from court fees, despite her modest financial circumstances.

In June 2001 the applicant filed a civil claim for damages against the state police in connection with the failure of the authorities to fulfill their obligation to protect her property while she was in detention. Some of the applicant’s property stored in her house was stolen while she was held in police custody. The applicant also requested exemption from paying court fees, attaching a copy of her pensioner’s certificate indicating the amount of her retirement pension.

In August 2001, the Rīga Regional Court declined to examine the merits of the claim, on the ground that the applicant did not submit sufficient evidence as regards to her financial situation and the basis of her claim.

However, the European Court considered that the documents submitted by the applicant to the domestic courts provided a reasonable and sufficient basis for her claim and observed that the domestic courts did not indicate to the applicant what additional documents were necessary to prove her financial situation and the circumstances on which her claim was based (violation of article 6§1).

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

• Information is awaited on possibilities of reopening the case, if the applicant so wishes.

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations as well as on the publication of the judgment of the European Court and its dissemination to competent authorities.

55707/00           Andrejeva, judgment of 18/02/2009 – Grand Chamber

This case concerns the Latvian authorities’ refusal to allow the applicant, who has resided permanently in Latvia since 1954, to benefit from state pension rights acquired before 1991 when working for state bodies having their headquarters outside Latvia (Kyiv and Moscow), on the grounds that she did not have Latvian nationality (violation of Article 14 of the Convention in conjunction with Article 1 of protocol No. 1).

The applicant has no nationality and since April 1995 has been a “permanently resident non-citizen” of Latvia. She worked in Latvia from 1973 to 1981 in a state body depending from the Ministry of the Chemical Industry of the USSR, with headquarters in Kyiv. Until being made redundant in September 1993, she continued to work in another branch of the same body which had its headquarters in Moscow.

When the applicant retired in August 1997, the Social Insurance Directorate refused to take into consideration the period during which the applicant worked for USSR state bodies in the calculation of her retirement pension. The Directorate found that according to Article 1 of the Law on State Pensions, for foreigners or stateless persons residing in Latvia, only periods of work actually performed in Latvia could be taken into consideration for the purpose of calculating the pension at issue.

The European Court found that nationality was the one and only criterion underlying the difference of treatment and that no objective, reasonable justification had been presented, not least considering that the applicant has no nationality.

The case also concerns the violation of the applicant’s right to a fair trial in that she could not exercise her entitlement to take part (provided in Article 471 of the Law on Civil Procedure) in the public hearing of the Senate of the Supreme Court as it had been decided to bring forward the hearing date (violation of Article 6§1).

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

• Information is awaited on measures to redress the applicant’s situation, in particular the recalculation of her retirement pension.

General measures:

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

3669/03            Ādamsons, judgment of 24/06/2008, final on 01/12/2008

This case concerns the violation of the applicant's right to free elections in that in 2002 he was disqualified from standing for election on account of his previous service in the Border Guard Forces of the Soviet Union, which were subordinate to the KGB (violation of Article 3 of Protocol No.1).

Following the independence of Latvia in 1990, the applicant had a military and political career (Vice-Commander of the Navy, Commander of the Latvian Border Guard Forces and Minister of Interior) and was elected to Parliament of which he remained a member until 2002.

In a judgment of 03/03/2000, a domestic court found that during the Soviet era the applicant had been a “serving officer of the KGB Border Guard Forces” rather than a former “KGB officer”. Subsequently, the applicant was removed from the electoral list of the party of which he was then the Vice-President.

The European Court noted that Section 5(5) of the Parliamentary Elections Act disqualified former “officers” of the KGB from standing for elections. Having regard to the wide-ranging functions of that agency, it considered that the concept was too broad and that a restriction of the electoral rights of a member of that group should take a case-by-case approach which would allow their actual conduct to be taken into account (§125).

The European Court also noted in this regard that after his return in 1992 from the service in the far east of the former USSR, the applicant had had ample opportunity to prove his loyalty towards the Latvian state and his attachment to democratic values, and that no evidence has been adduced of a lack of integrity on his part in that respect (§129).

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

• Information is awaited on the applicant's present situation and his eligibility to stand for election in the future.

General measures: Under the applicable Latvian law, past co-operation with the KGB may be invoked in similar situations until 2014 (§§73, 87, 131). The European Court found that the extension of the relevant statutory provisions until 2014 had a manifestly arbitrary character in the present case.

• Information is awaited on legislative measures taken or envisaged to avoid similar violations in the future. At the outset, the publication and wide dissemination of the European Court's judgment with an explanatory note to the authorities involved in the present case appears necessary.

- 1 case against Lithuania

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 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, 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 were 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 European 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). It has also been sent out to the Court of Cassation, which applies the Convention as interpreted by the European Court directly, and transmitted to the State Prosecutor General, who was requested to transmit it to the judicial authorities concerned.

• Information would also be usefulon any other measures which may possibly be envisaged.

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.

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.

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.

                       - 7 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).

- 61 cases against Moldova

39806/05           Paladi, judgment of 10/03/2009 – Grand Chamber[39]

17332/03           Levinta, judgment of 16/12/2008, final on 16/03/2009[40]

81/04                Savitchi, judgment of 17/06/2008, final on 17/09/2008[41]

- 10 cases mainly concerning violations related to detention on remand

3456/05            Sarban, judgment of 04/10/2005, final on 04/01/2006

23393/05          Castravet, judgment of 13/03/2007, final on 13/06/2007

21984/05          Gorea, judgment of 17/07/2007, final on 17/10/2007

14437/05          Modarca, judgment of 10/05/2007, final on 10/08/2007

42440/06          Muşuc, judgment of 06/11/2007, final on 06/022008

8207/06            Stepuleac, judgment of 06/11/2007, final on 06/02/2008

35324/04          Stici, judgment of 23/10/2007, final on 23/01/2008

10809/06          Turcan, judgment of 27/11/2007, final on 27/02/2008

39835/05          Turcan and Turcan, judgment of 23/10/2007, final on 23/01/2008

3817/05            Ursu, judgment of 27/11/2007, final on 27/02/2008

                       CM/Inf/DH(2009)42-rev

These cases mainly concern violations related to the applicants' detention on remand, the extension of such detention and the guarantees due to persons in remand, in particular:

-           the applicants’ arrest and  detention on remand without reasonable suspicion of their having committed an offence (violations of Article 5§1-c in the Muşuc, and Stepuleac cases);

-           unlawful detention of the applicants on account of the practice of keeping accused persons in detention on the sole ground that their case-files have been submitted to the trial court (violations of Article 5§1 in the Modârcă, Gorea, Stici, Ursu, and Ţurcan cases);

-           failure of domestic courts to give relevant and sufficient reasons to justify the extension of the applicants' detention on account of the use of abstract or stereotyped formulas and of the absence of an explanation on how the formalistic grounds provided by law applied to the applicants' cases (violations of Article 5§3 in the Şarban, Modârcă, Castraveţ, Ţurcan and Ţurcan, Stici, and Ursu cases);

-           violation of the applicant's right to be released pending trial on account of his failure to pay the amount set for bail in the absence of relevant and sufficient grounds  for his continued detention  (violation of Article 5§3 in the Muşuc case);

-           failure to ensure a prompt examination of the lawfulness of the applicant's detention (21 days) (violation of Article 5§4 in the Şarban case);

The European Court also found a number of violations of the principle of the equality of arms on account of:

-           the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre for Fighting against Economic Crimes and Corruption), related to the preparation of the applicants' requests for release  (in the Modârcă, Castraveţ, and Muşuc cases);

-           unjustified refusal by domestic courts to give access to the case-files, in particular to the evidence of a witness whose statements justified the application of the preventive measure, to the applicant and to his lawyer with a view to challenging the lawfulness of the detention (in the Muşuc, and Ţurcan and Ţurcan cases);

-           unjustified refusal of the domestic court to hear evidence from the witness whose alleged statements were used to justify the detention on remand of the applicant (in the Ţurcan and Ţurcan case) (violations of Article 5§4).

The Modârcă, Stepuleac and Ţurcan cases also concern poor conditions of pre-trial detention (violation of Article 3). The Şarban, Ţurcan and Stepuleac cases concern the lack of medical assistance during detention in the CFECC, in Prison No 13 (former Prison no 3) and in the General Directorate for Fighting Organised Crime (GDFOC) respectively (violation of Article 3). Finally, the Stepuleac case concerns the lack of an effective investigation into the applicant's allegations of intimidation in detention.

Individual Measures: The applicants are no longer detained on remand. The European Court awarded just satisfaction in respect of non-pecuniary damages suffered by the applicants.

• Information is still awaited on measures taken by the authorities concerning the applicant's allegations of intimidation in the Stepuleac case.

General Measures: The measures taken so far by the Moldovan authorities and the outstanding issues are summarised in memorandum CM/Inf/DH(2009)42-rev.

As regards the violations of Article 3, these cases raise similar issues to those in the Becciev group cases (9190/03, Section 4.2).

The judgments of the European Court have been translated and published in the Official Journal of the Republic of Moldovan (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md).

Information is still awaited on the dissemination of the judgments.

The Deputies, 1.             took note of the information provided by the Moldovan authorities as summarised in the revised Memorandum CM/Inf/DH(2009)42-rev; 2.             invited the Moldovan authorities to provide the necessary information on the outstanding issues, as highlighted in this Memorandum; 3.             decided to resume consideration of these cases at the latest at their 1086th meeting (June 2010) (DH), to examine the outstanding issues on the basis of an updated and completed version of the Memorandum to be prepared by the Secretariat.

- 4 cases concerning ill-treatment under police custody, lack of effective investigation in this respect (Articles 3 and 13)[42]

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

41578/05           David, judgment of 27/11/2007, final on 27/02/2008[43]

20289/02           Guţu, judgment of 07/06/2007, final on 07/09/2007[44]

35615/06          Cebotari, judgment of 13/11/207, final on 13/02/2008[45]

- 6 cases concerning poor conditions of detention and lack of effective remedy in this respect[46]

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

8721/05+          Istratii and others, judgment of 27/03/2007, final on 27/06/2007

7101/06            Malai, judgment of 13/11/2008, final on 13/02/2009

35207/03          Ostrovar, judgment of 13/09/2005, final on 15/02/2006

36492/02           Bujnita, judgment of 16/01/2007, final on 16/04/2007[47]

                        - 6 cases concerning the quashing of final domestic judgments[48]

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, final on 14/09/2009

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

30475/03          Moldovahidromas, judgment of 27/02/2007, final on 27/05/2007 and of 13/05/2008 – Friendly settlement

40663/98          Asito, judgment of 08/11/2005, final on 08/02/2006, and judgment of 24/04/2007 (Article 41) - Friendly settlement[49]

17211/03           Dolneanu, judgment of 13/11/2007, final on 13/02/2008[50]

32263/03           Tocono and Profesorii Prometeişti, judgment of 26/06/2007, final on 26/09/2007[51]

- 2 cases concerning the violation of the right to a fair trial before the Supreme Court of Justice[52]

289/04+            Popovici, judgment of 27/11/2007, final on 02/06/2008

25236/02           Navoloaca, judgment of 16/12/2008, final on 16/03/2009

- 3 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[53]

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

27888/04           Tudor-Comert, judgment of 04/11/2008, final on 04/02/2009

33066/04           Mancevschi, judgment of 07/10/2008, final on 07/01/2009[54]

41827/02           Kommersant Moldovy, judgment of 09/01/2007, final on 09/04/2007[55]

14277/04           Guja, judgment of 12/02/2008 – Grand Chamber[56]

                       - 8 cases concerning freedom of expression[57]

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

                        - 2 cases concerning freedom of assembly[58]

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

19247/03           Balan, judgment of 29/01/2008, final on 29/04/2008[59]

40117/02           Cazacu, judgment of 23/10/2007, final on 23/01/2008[60]

15084/03           Bimer S.A., judgment of 10/07/2007, final on 10/10/2007[61]

21151/04           Megadat.com SRL, judgment of 08/04/2008, final on 08/07/2008[62]

- 3 cases of length of civil proceedings[63]

13012/02           Cravcenco, judgment of 15/01/2008, final on 15/04/2008

27581/04           Boboc, judgment of 04/11/2008, final on 04/02/2009

35967/03           Gusovschi, judgment of 13/11/2007, final on 31/03/2008

- 4 cases against the Netherlands

24919/03          Mathew, judgment of 29/09/2005, final on 15/02/2006

The case concerns the poor conditions of detention on remand and the detention regime the applicant suffered in the Aruba Correctional Institution (KIA) on the island of Aruba, which in the European Court’s view amounted to inhuman treatment (violation of Article 3).

When establishing the facts, the European Court considered the applicant’s mental condition even if no psychiatric or psychological examination of the applicant had been undertaken. It noted that the applicant’s behaviour in detention was characterised by his continued inability to adapt to the exigencies of prison life and his lack of response to normal prison discipline.

Thus, it was apparent for the European Court that he was, while detained, suffering from a disturbance the precise nature of which the European Court did not determine but which resulted in an increased propensity to recalcitrant and even violent behaviour. The European Court accepted that the authorities found him impossible to control except in conditions of strict confinement. However, it found that the Aruban authorities were aware that the applicant was a person unfit to be detained in the KIA in normal conditions and that the special regime designed for him was causing him unusual distress. While the Court accepted that accommodation suitable for prisoners of the applicant’s unfortunate disposition were non-existent at the relevant time, it found that the respondent authorities could and should have done more, for example, to execute the judicial order in another part of the Netherlands. It also found that “the applicant was kept in solitary confinement for an excessive and unnecessarily protracted period, that he was kept for at least seven months in a cell that failed to offer adequate protection against the weather and the climate, and that he was kept in a location from which he could only gain access to outdoor exercise and fresh air at the expense of unnecessary and avoidable physical suffering”.

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages he sustained. He was released on 30/04/2004.

• Assessment: No further individual measure seems necessary.

General measures:

• Information provided by the authorities of the Netherlands: The European Court’s judgment was published in several legal journals in the Netherlands (NJCM-Bulletin 2006, no. 4, pp. 529-543; NJB 2005, no. 45/46, pp. 2377-2378; and ECHR 2005, no. 11, pp. 1084-1096). Furthermore, the KIA has recently been renovated, as a result of which the prison cells and the place designated for outdoor activity are now on the ground floor. In addition, disciplinary cells have been renovated (Beds and extra ventilation elements as well as a cell bell system are installed. The exercise cage is equipped with a bench). Following the publication on 29/01/2008 of the most recent CPT report (2008)2 concerning its visit to Aruba in June 2007, the State Secretary of Internal Affairs and Kingdom Relations requested the governors of Aruba (and the Netherlands Antilles) to report every six months. The Aruban Ministry of Justice has set up a Commission on the Supervision of Prison Cells and Treatment of Detainees to supervise the adjustment of the prisons and to deal with legal, individual and personnel aspects. In addition, special attention will be paid to education and to expanding of prison staff and police personnel.

• Latest developments (letter of 15/01/2009): The transfer of prisoners from Aruba to the Netherlands lies within the discretionary powers of the Ministry of Justice, and is based on Article 36 of the Charter of the Kingdom of the Netherlands which empowers the Government of the Netherlands to render assistance to Aruba (and the Netherlands Antilles). A transfer of prisoners may be ordered either upon an individual request in cases of pressing reasons of security or medical and/or psychiatric indications, or if there is a risk of imminent breach of an international treaty on human rights. Furthermore, within an understanding reached between the penitentiary institutions in Aruba (Dienst Gevangeniswezen) and the Netherlands (Dienst Justitiële Inrichtingen), the latter has provided expertise and personnel at the disposal of Aruba.

• Assessment of the measures adopted and further information required: The measures adopted seem to constitute a very positive step towards ensuring appropriate detention conditions for prisoners in situations similar to the applicant’s. Further information is, however, still required, in particular, on psychological and psychiatric treatment available at the KIA.

 

30810/03           Geerings, judgment of 01/03/2007, final on 01/06/2007 and of 14/02/2008, final on 14/05/2008

The case concerns the infringement of the applicant's right to be presumed innocent (violation of Article 6§2). On 30/03/2001 the domestic court of appeal, on the basis of article 36e of the Criminal Code, issued an order for the confiscation of illegally obtained advantage in respect of thefts of which the applicant had been partially acquitted by a final judgment of 29/01/1999.

The appellate court indicated that the offences of which the applicant was acquitted constituted “similar offences”, within the meaning of Article 36e of the Criminal Code, to those for which he had been convicted, and thus, pursuant to the same provision and contrary to the general rule on the burden of proof in criminal matters, the Prosecutor only had to establish that there was “sufficient indication” that the accused had committed the offences in order to obtain a confiscation order.

The court of appeal found that this was so in this particular case and consequently ordered the confiscation of alleged advantages obtained from those offences in addition to those of which he had been convicted. The Supreme Court later upheld the judgment of the court of appeal.

The European Court considered that confiscation following conviction is an inappropriate measure having regard to assets which are not known to have been in the possession of the person affected (as was the case here), the more so if the measure concerned relates to a criminal act of which the person affected has been acquitted. It further held that the court of appeal’s finding amounted to a determination of the applicant’s guilt without the applicant having been found guilty according to the law.

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

In domestic proceedings introduced by the Advocate General following the European Court’s judgment, by a judgment of 27/09/2007, the confiscation order of 30/03/2001 was reduced to an amount which corresponded to that of the offence for which the applicant had been convicted by the judgment of 29/01/1999. The applicant subsequently withdrew his claim in respect of pecuniary damage before the European Court.

• Assessment: No further individual measure appears necessary.

General measures: The judgment was published in several legal journals in the Netherlands (EHRC 2007/61, pp 574-577, Delikt & Delinkwent 2007/6,NJB 2007/22 and JOL 2007/389 (Hoge Raad Strafkamer)). On 9/08/2007 it was sent out to the authorities competent for confiscation matters, to raise their awareness on the requirements under Article 6§2 of the Convention.

Furthermore, on 26/09/2007, the Board of Prosecutors-General issued a new guideline for confiscation practice to ensure that future confiscation procedures are conducted in accordance with Article 6§2 of the Convention. According to the guideline inter alia no advantage obtained could be confiscated in respect of counts on which one had been acquitted, unless it was firmly established that the person concerned had derived an actual advantage from those counts.

• Bilateral contacts are under way to assess and clarify the information provided by the authorities.

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.

- 3 cases against Norway

31283/04           Orr, judgment of 15/05/2008, final on 01/12/2008

This case concerns the violation of the presumption of the applicant’s innocence on account of judicial acts subsequent to criminal proceedings resulting in his acquittal (violation of Article 6§2).

Accused in August 2001 of having raped one of his cabin crew in Oslo, the applicant, a pilot, was ultimately acquitted by the Eidsivating High Court in March 2003. In the same judgment the High Court ordered the applicant to pay compensation to the alleged victim.

The European Court noted that, in its reasoning on compensation the High Court covered practically all the constitutive elements, objective as well as subjective, that would normally amount to the criminal offence of rape under Article 192 of the Penal Code. In particular, it held that the use made of the concept of “violence” by the High Court in the particular context conferred criminal-law features on its reasoning which overstepped the bounds of civil jurisdiction. Therefore the Court concluded that, even if presented together with cautionary statements, the impugned reasoning of the High Court, upheld by the Supreme Court in 2004, cast doubts on the correctness of the applicant’s acquittal.

Individual measures: On 12/06/2009, the Norwegian authorities informed the Secretariat that the applicant made a request for the re-opening of the proceedings in question.

• Information is awaited concerning the subsequent proceedings relating to the applicant’s request.

General measures: Resolution CM/ResDH(2009)8 on the Y. case listed the publication and dissemination measures taken by Norwegian authorities in 2003 to prevent new, similar violations of the Convention. Given that the violation of the presumption of innocence in that case was related exclusively to the reasoning of the High Court, and not to the applicable legal provisions, these measures were deemed sufficient.

In the present case, the European Court reiterated that “an acquittal from criminal liability does not bar a national court from finding, on the basis of a less strict burden of proof, civil liability to pay compensation in relation to the same facts” (§51). Moreover, national courts referred to the case law of the European Court, including to the Y. case, when developing their legal reasoning.

A summary of the judgment in Norwegian, with a link to the original judgment, was published on the Internet site Lovdata on 21/05/2008. The Lovdata web site is widely used by all who practice law in Norway, civil servants, lawyers, prosecutors and judges alike.

The Norwegian Centre for Human Rights (an independent national human rights institution) writes the summaries of the Court's judgments for the database.

In addition, on 4/02/2009, the Ministry of Justice and the Police wrote to the National Courts Administration with a request to all judges to be aware of the Court’s judgment so as to prevent new, similar violations.

21132/05           Tv Vest As and Rogaland Pensjonistparti, judgment of 11/12/2008, final on 11/03/2009

This case concerns the violation of the freedom of expression of the applicants, TV Vest AS Ltd. – a television broadcasting company – and the Rogaland Pensioners Party (Rogaland Pensjionistparti), on account of a fine imposed by the State Media Authority on 10/09/2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10).

The decision of the State Media Authority concerned advertisements aired in 2003 by TV Vest and was based on the prohibition on television broadcasting of political advertising under section 3-1(3) of the Broadcasting Act 1992. The prohibition is permanent and absolute and applies only to television, political advertising in other media being permitted.

The European Court noted that the rationale for the statutory prohibition of television broadcasting of political advertising had been, as stated by the Supreme Court in rejecting the appeal of one of the applicants, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate and to give richer parties and groups more scope for opportunities for marketing their opinions.

However, the European Court found that “paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium” (§73). By being denied this possibility under the law, the Pensioners Party had been put at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. Moreover, the content of the advertising was not as such as to lower the level of public debate.

Therefore the Court considered that “the fact that the audio-visual media has a more effective and powerful effect than other media could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue” (§76).

The Court accordingly concluded that there had not been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction could not therefore be regarded as having been necessary in a democratic society (§ 78).

Individual measures: The Court did not award the applicants just satisfaction as they submitted their claim out of time.

• Information provided by the Norwegian authorities: Following the judgment of the Court, on 8/07/2009, the Media Authority annulled its decision of 10/09/2003 fining TV Vest under section 10-3 of the Broadcasting Act and section 10-2 of the Broadcasting Regulations. The fine was never collected due to the dispute concerning its legality.

The applicants have recently requested the re-opening of the case in order to claim legal costs pertaining to the proceedings before the national courts and the European Court. According to the government, as the Court decided not to award just satisfaction, a claim for compensation cannot be based on the Article 46 of the Convention. Section 407(7) of the Code of Civil Procedure permits the re-opening of internal proceedings following a judgment of the European Court finding a violation.

• Information is awaited as to the outcome of the applicant’s request for reopening of the proceedings.

General measures: Section 3-1(3) of the Broadcasting Act 1992 reads: ”Broadcasters may not transmit advertisements for life philosophy or political opinion through television. This applies also to teletext”. 

The European Court acknowledged that the absence of a European consensus with regard to the extent of the regulation of television broadcasting of political advertising could be viewed as emanating from the different perceptions regarding what is necessary for the proper functioning of the “democratic” system in the respective states. However, on the basis of its assessment on the circumstances of the case (see above), it concluded that “the view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must [therefore] be rejected” (§77).

The prohibition in Section 3-1(3) of the Broadcasting Act has remained unchanged. The Norwegian authorities have however indicated that they have implemented two general measures to prevent similar violations. These were proposed in a white paper of the Ministry of Culture and Church Affairs and approved by the Norwegian Parliament on 29/05/2009.

First, the Statutes of the national public broadcaster (NRK) have been amended. The NRK is now obliged to provide broad and balanced coverage of elections in accordance with the amended Section 12 (b) of the Statutes of the NRK , “The NRK shall provide a broad and balanced coverage of political elections. All parties and lists over a certain size shall normally be included in the editorial election coverage.” According to the white paper, the objective behind this amendment is to provide that smaller political parties, such as the Pensioners Party, are included included in the NRK’s editorial coverage. The Media Authority will monitor NRK’s obligations according to these articles. The NRK has given an account of the editorial principles that will govern its election coverage during elections in 2009 (parliamentary elections) and 2011 (municipal elections) in a letter dated 10/03/2009 to the Ministry: “Parties with eligible candidates in more than half of the Regions in the national elections or in more than one municipality in the local elections, will normally be included in the NRK’s election coverage.” This includes the Pensioners Party and other political parties of a similar size. Smaller parties may also be covered according to NRK’s obligation to provide a broad and balanced coverage. In any case, according to the Norwegian authorities, such parties will be covered by the second general measure. The Norwegian authorities reported that during the last parliamentary elections (September 2009), the Pensioners Party and other political parties of similar size were included in the NRK’s election coverage.

Secondly, all political parties are able to use Frikanalen (the Open Channel) as a means to communicate with the public. This also includes political parties smaller than the Pensioners Party. Frikanalen is an open television channel in which organisations or individuals broadcast their own programmes. The channel is owned by more than 60 different non-profit organisations in Norway and is financed by support from the Ministry of Culture and Church Affairs and a membership fee. Frikanalen was started in October 2008 and is distributed through the digital terrestrial television network which covers more than 95 % of households. The terms of the licence permit the editor of the Frikanalen to delegate editorial responsibility to organisations or individuals. The editor’s sole obligation is to divide broadcasting time between the different organisations and to schedule their broadcasts. The Channel as such does not produce or broadcast any programmes of its own.

To facilitate party political broadcasts during elections, the Ministry of Culture and Church Affairs in May 2009 signed an agreement with Frikanalen which states: “Reference is made to the objectives of the Frikanalen ‘to strengthen the freedom of speech and democratic participation by enabling new groups the opportunity to communicate by way of the television medium’. Reference is furthermore made to the Ministry’s objectives concerning an open channel. In order to fulfil these aims Frikanalen is to facilitate freedom of speech for all political parties and lists. During the last three weeks before an election such political parties and lists shall be given priority. Frikanalen shall furthermore enable regionalisation of its signals in connection with Municipal and Regional Elections in order for local parties and lists to obtain television coverage through Frikanalen.”

The Norwegian authorities report that during the last parliamentary elections the Pensioners Party exercised the opportunity to broadcast programmes on Frikanalen. At present four political parties have broadcast their programmes on this Channel, including smaller political parties.

In addition, the Court’s judgment highlighted the direct effect of the European Court’s case-law accepted by the State Media Authority.

A summary of the judgment in Norwegian, with a link to the original judgment, was published on the Internet site Lovdata (<http://www.lovdata.no/avg/emdn/emdn-2003-012148-2-norge.html>). The Lovdata web site is widely used by all who practice law in Norway, civil servants, lawyers, prosecutors and judges alike. The Norwegian Centre for Human Rights (an independent national human rights institution) writes the summaries of the Court's judgments for the database.

• Assessment:  The measures taken by the respondent Government are welcome.

At the outset, it should be recalled that the European Court found a violation in this case taking account of the fact that paid advertising on television had been the sole means available to the Pensioners’ Party to convey its message to the public. The European Court concluded that contrary to the rationale of this statutory prohibition, by being denied this possibility, the applicant political party had been put at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. In this respect, it should be noted that the prohibition prescribed by Section 3-1(3) of the Broadcasting Act 1992 remains unchanged.

It is observed that the measures taken by the Norwegian authorities aimed at securing access to the media for small political parties. The Norwegian authorities preferred to make changes in the public service broadcaster NRK’s mandate to allow for political parties’ access to the TV media (editorial coverage). In this respect, it should first be noted that all the parties and lists “over a certain size shall normally be included in the editorial election coverage”, i.e. all parties and lists are not guaranteed editorial coverage (the modification of Section 12 (b) of the Statutes of the NRK). In addition, it is not clear whether the mandate entails a requirement of equal treatment, or how the respect of this obligation is monitored. Nor is it clear how the “parties and lists over a certain size” were included in the editorial election coverage in practice.

The Norwegian authorities have also supported the Open Channel in order to guarantee TV access for all political parties during the election period. However, more detailed information is awaited as to the efficiency of this measure taken (whether or not it allows small parties to have access to the TV media). In this connection the Secretariat takes note the OSCE/ODHIR Needs Assessment Mission Report (22-25 June 2009) dated 4/08/2009, in which it was stated that “the open channel is currently functioning on a limited basis, as it is potentially available to some 30 % of the population and only broadcasts five and a half hours a day...The Government is also proposing changes to the public broadcaster’s mandate to ensure broad and balanced coverage of elections. However, this will not necessarily ensure that smaller parties, which formed the basis for the ECHR judgment, receive television news coverage.”

• Further information is necessary In this respect to make a more conclusive assessment as to whether or not these measures are sufficient to prevent similar violations and secure access to the edited media for small political parties.

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.

- 407 cases against Poland

77766/01           Dzieciak, judgment of 09/12/2008, final on 09/03/2009

This case concerns the authorities’ failure to protect the applicant’s life while in custody between September 1997 and October 2001 and the lack of effective investigation into his death.

The applicant, who suffered from heart disease and had had two heart attacks, was remanded in custody on suspicion of drug trafficking on 17/09/1997. Despite his numerous requests for release on grounds of ill-health, the domestic courts repeatedly extended his detention, relying on the reasonable suspicion against him and the complexity of the investigation. It was only on 22/10/2001, during a trial at which the applicant fainted, that the court ordered his release for 26/10/2001, knowing that he was to undergo a heart bypass operation that day. On 25/10/2001 the applicant died; the post-mortem examination concluded that he had died of acute coronary insufficiency. The European Court noted that despite the medical panel’s recommendations of 1998 and 1999 that the applicant should be kept in a detention centre with a hospital wing, between November 1999 and March 2000, he was kept in a detention centre in Łódź with no hospital wing. Consequently, his health deteriorated gradually.

Even though in 2001 doctors decided that he should have a heart bypass operation, the authorities did not give a satisfactory explanation as to why he was not transferred to the Institute of Cardiology on the first two dates scheduled for that purpose. It was particularly striking that the second date was communicated to him too late, because of prosecutor’s censorship. The European Court also noted that the medical panel’s recommendation of 01/10/2001 on the applicant’s release had been notified to the trial court 22 days later and the applicant had had no access to medical care when he attended hearings in October 2001. Furthermore the grounds given by the domestic authorities to extend his detention could not justify the total period spent on remand which exceeded four years. Thus the European Court concluded that the lack of quality and promptness of the medical care provided to the applicant during his four years’ pre-trial detention had put his health and life in danger (substantive violation of Article 2).

The European Court also criticised the fact that the investigation into the circumstances of the applicant’s death lasted more than two years, from December 2001 until the prosecutor’s decision to discontinue it on 28/08/2003, upheld by the district court on 19/01/2004. It concluded that the authorities had failed to carry out a thorough and effective investigation into the allegation that the applicant’s death had been caused by ineffective medical care during his detention (procedural violation of Article 2).

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

The European Court noted the incomplete and inadequate character of the investigation insofar as it was not capable of establishing the circumstances directly preceding the applicant’s death. The prosecutor failed to establish whether the applicant had been taken to court on the morning of 22/10/2001, what exactly had happened in the court building, why the ambulance had brought him back to the detention centre; what had happened before the applicant had been taken unconscious from his cell at 3.45 p.m. (§ 107) and what was the real date of the applicant’s death (§ 108). Nor had it considered the doubts expressed by experts about the postponement of surgery on three occasions (§ 110).

On 20/07/2009 the authorities stated that the reopening of the investigation in this case is possible. However, they expressed doubts as to the prospects of such reopening in the particular circumstances of the case.

• Information is awaited as to whether the investigation has been reopened.

General measures:

1) Substantive violation of Article 2: The European Court concluded that in particular the lack of co-operation and co-ordination between the various State authorities, the failure to transport the applicant to hospital for two scheduled operations, the lack of adequate and prompt information to the trial court on the applicant's state of health, the failure to secure him access to doctors during the final days of his life and the failure to take into account his health in the automatic extensions of his detention amounted to inadequate medical treatment and constituted a violation of the State's obligation to protect the lives of persons in custody (§101).

The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl) and sent out to competent authorities (prison authorities, prosecutors, district, regional and appellate criminal courts), along with a circular.

• Bilateral contacts are under wayto clarify whether further measures are envisaged.

2) Procedural violation of Article 2: This violation resulted from the protracted length of the investigation and the lack of critical assessment by prosecutor and the district court of evidence obtained in the case.

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

46702/99           Dzwonkowski, judgment of 12/04/2007, final on 12/07/2007

This case concerns the inhuman treatment suffered by the applicant when arrested by the police and transported to the Warsaw Sobering-up Centre in June 1997 (substantive violation of Article 3). The European Court considered that the government had advanced no consideration to explain or justify the use of force. It concluded that, given the severity of the applicant's injuries, attested to by the doctor at the Sobering-up Centre, the use of force by the police had been excessive and unjustified. The European Court referred to criminal proceedings brought against the applicant for causing bodily harm to the policemen and to the findings of the Wolomin first-instance court that the applicant had been beaten up by the police.

The case also concerns the absence of any effective investigation into the circumstances of the incident (procedural violation of Article 3). The European Court noted that the prosecution had dropped the criminal complaints brought by the applicant against the police, despite the medical report and the findings of the Wołomin Court. The European Court found that the investigation had been superficial and lacking in objectivity and had resulted in a decision which was contradicted by the facts.

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

According to the authorities, the applicant may request the reopening of the discontinued proceedings (concerning his ill-treatment) under Article 327 of the 1997 Code of Criminal Procedure.

• Assessment: No further individual measure seems necessary.

General measures:

1) Substantive violation of Article 3: According to the Police Act of 1990, police officers may apply only such coercive measures which correspond to the requirements of a given situation and are necessary to ensure that their orders are obeyed. Thus in this case the violation resulted from the abusive actions of the police officers.

2) Procedural violation of Article 3: This violation resulted from the public prosecutor's decisions to drop the criminal complaints against the police officers in spite of factual elements presented.

• Information provided by the Polish authorities:

In 2007 the network of Human Rights Advisers to the Chief Commander and Province (Voivodship) Commanders of Police, established in 2005, were given full-time positions. Their tasks include, inter alia, training police officers, promoting police conduct in accordance with international human rights standards and monitoring police operations. Particular importance is given to monitoring police activity.

On 29/05/2008 there was a meeting of the Inter-Ministerial Committee for Matters Concerning the European Court at which the Head of the Department for Control, Complaints and Petitions at the Ministry of Interior and Administration reported that about 20,000 complaints lodged about police activity were being examined. On 17/02/2009 the authorities provided preliminary statistical data in this respect. In 2008 there was a total of 17 936 complaints about police conduct (7% less than in 2007). In 1588 cases, the charges were confirmed at the enquiry stage; in 130 cases disciplinary proceedings were initiated and in 1013 cases complaints were sent to prosecutors for further appraisal. Complaints referred in particular to the means and justification of police interventions, promptness of investigation, inactivity and negligence in dealing with complaints by the police and material errors in police activities. Until the end of 2008, the police used an outdated system of classification, recording and processing complaints. Following recommendations by the CPT and the Council of Europe Commissioner for Human Rights, the Chief Commander of Police decided to establish a new computer system for processing complaints as one of the elements of a new approach to complaints about police conduct. Due to need to find savings, the implementation of the system was delayed.

Moreover, In November 2007 the National Police Headquarters drafted an action plan to implement recommendations by the Council of Europe Commissioner for Human Rights, the CPT and the European Court’s judgments, which includes the setting-up of a special body to scrutinise the observance of human rights by the Police when having recourse to the use of force. There is currently discussion about whether this special body should be established as an independent body with quasi-prosecutorial powers or as an advisory body for police commanders. On 28/05/2008 a workshop took place on this issue in Strasbourg. On 17/07/2008 a working group within the Ministry of Interior and Administration met to prepare a concept for the special body and to discuss the outcomes of the Strasbourg workshop. A meeting on final arrangements of the body is to be organised between the Ministry and the Ombudsman.

The European Court’s judgment has been published on the website of the Ministry of Justice (www.ms.gov.pl/re/re_wyroki.php) and disseminated to police officers, courts and prosecutors.

• Information is awaited on the implementation of the action plan, in particular the creation of the special human rights body for the police and implementation of the new computer system for processing complaints about police conduct.

8677/03            P.P., judgment of 08/01/2008, final on 08/04/2008

This case concerns the violation of the applicant’s right to respect for family life due to the non-enforcement of decisions with respect to the return of his daughters to Italy and his visiting rights (violation of Article 8). The applicant, an Italian national, was married to a Polish national, K.P. They had two daughters, A and B, born in 1992 and 1996, and lived in Italy. In the summer of 1999 K.P. took her daughters on holiday to Poland and filed an application for divorce. In September 1999 the applicant instituted proceedings on grounds of the Hague Convention. On 17/11/1999 the Poznan District Court granted him visiting rights and on 05/01/2001 allowed his application for the return of the children and ordered K.P. to return them to the applicant, considering that she had unlawfully abducted them. This decision became final and enforceable in June 2001. Subsequently the applicant requested its enforcement, but K.P. failed to comply with the decision and hid the children, despite the attempts of the bailiff, guardians assisted by police officers and the representative of the Italian embassy. A guardian’s request for instituting criminal proceedings against her was dismissed in August 2003. During this period, the applicant did not come to Poland, as in January 2002 an arrest warrant was issued against him, due to non-payment of child support ordered in the divorce proceedings. This warrant remained valid until March 2005.

On 03/04/2003 the guardians found the children, but due to A’s strong resistance they called for a medical examination and decided not to enforce the court order. K.P. remained in hiding with the children until September 2003. The applicant eventually met his daughters on 27/03/2005. On 07/06/2005 the Poznan District Court quashed the decision of 05/01/2001 and decided not to return the children to the applicant, considering that their return would expose them to psychological harm or otherwise place them in an intolerable situation. It took note in particular of the girls’ assimilation in Poland and their strong emotional bonds with their mother.

The European Court noted that even though the authorities did finally find the children on 03/04/2003, the circumstances were such that they could not remove them. Even though the difficulties in finding the children were created by the resistance of their mother, the lapse of time was to a large extent caused by the authorities’ own handling of the case (courts, bailiffs, guardians and also the prosecutor who discontinued the criminal proceedings instituted against K.P.). The European Court concluded that the Polish authorities had failed to take promptly all the measures that could reasonably be expected to enforce the return order and consequently to secure the applicant’s visiting rights. It pointed out in particular that the lack of contact between the applicant and his children was mainly caused by the authorities’ failure to find the children hidden by K.P. and by the arrest order which had been issued against the applicant and was upheld for over three years and which had made it more difficult for him to come to Poland.

Individual measures: Since September 2003, the children have been living in K.P.’s father house in P., where they attend school (§43 of the judgment). The decision of the Poznan District Court of 07/06/2005 is final. However, the case was simultaneously dealt with by the Italian courts. On 24/02/2005 and 28/11/2005 the Venice Court granted the applicant sole custody of A. and B. and deprived K.P. of her parental authority. The decision is final (§ 55 of the judgment).

• Information provided by the Polish authorities: The applicant’s visiting rights had been fixed provisionally in the decision of the Poznan District Court of 15/04/2005 (see §49 of the judgment), in the framework of the proceedings concerning the children’s return, based on the Hague Convention. The terms of the exercise of the visiting rights were confirmed by a judgment of the Poznan Regional Court of 22/01/2007. According to this judgment the applicant may see his daughters at their place of residence and take them outside it as long as they do not oppose and their mother has been informed one week before his arrival in Poland. So far the applicant has not requested the assistance of the Ministry of Justice in executing this judgment.

On 26/02/2008 the Ministry of Justice received a note from the Italian Embassy, calling upon the Polish authorities to take measures to ensure that the applicant enjoys fully his visiting rights and spend holidays with his daughters in Italy. On 10/03/2008 the Ministry of Justice replied that the applicant had met his daughters for the last time on 27/05/2005 and since then had contacted them only by telephone. It also informed the applicant that he may lodge a request for the extension of his visiting rights, clearly indicating in which form they should be carried out and that he should also apply to be allowed to receive his daughters in Italy during holidays.

Moreover, on 19/05/2008 the Ministry of Justice informed the Italian Embassy that if the mother were to hinder the applicant’s contacts with his daughters, he should lodge a motion under Article 1050 of the Code of Civil Proceedings, which concerns the enforcement of court decisions on parental rights of access.

Under Article 1050, Section 1, according to which if a debtor fails to comply with the obligation to take measures which cannot be taken by any other person, the court may fix time-limits for complying with this obligation on pain of a fine. The Ministry also indicated which court would be competent to examine such a motion and, in addition, that the applicant may lodge a motion on the basis of Article 21 of the Hague Convention (application to make arrangements for organising or securing the effective exercise of rights of access).

Besides that on 3/09/2008 the Ministry of Justice answered a letter from the European Union Commissioner for Justice, Freedom and Security of 5/08/2008, informing him of the legal avenues available to the applicant to amend the judgment of the Poznan Regional Court of 22/01/2007 and that the applicant had lodged no further complaint or request.

• Information provided by the applicant’s counsel (letters of 24/09/2008 and 25/11/2008): Since the decision of the Poznan District Court of 15/04/2005 the applicant has tried to visit his daughters several times. On 14/10/2007 he saw the younger daughter for one hour in a commercial centre. Since then he wanted to meet his daughters for Christmas in 2007 and spend the winter holidays with them in Italy in January 2008, but the mother and her family opposed it. He has visited Poland several times to see his daughters, but to no avail. He also complained to the police about the behavior of the mother and her family, but there has been no follow-up. He speaks sometimes with the younger daughter on the telephone, but their conversations are limited due to linguistic problems and the mother’s interference.

On 07/07/2008 the Italian Ministry of Justice wrote to the Polish Ministry of Justice, asking the latter to help the applicant in the exercise of his visiting rights. The letter specified that the applicant wanted to host his daughters in Italy during the summer and the Christmas break of 2008 as well as one week in the wintertime in 2009, without their mother’s presence. He was willing to pay their travel expenses from Warsaw to Venice, while the Italian Embassy could take care of the girls’ journey from Poznan to Warsaw.

By letter of 11/08/2008, the Polish Ministry of Justice answered its Italian counterpart’s letter, stating the following:

- the Hague Convention is no longer applicable to the elder daughter since she has already reached the age of 16;

- the courts are competent to modify the applicant’s visiting rights,

- the applicant may lodge a request for the extension of his visiting rights by the District Court in Poznan (himself or by a lawyer), clearly indicating how they should be exercised (day, hour, venue, etc.). He may ask the court to order the mother not to hinder the exercise of these rights. The Ministry also informed the applicant of the formal requirements that should be met in this respect (documents to be submitted and fees).

The applicant asks the Committee of Ministers to ensure the proper execution of this judgment of the European Court. His lawyer opposes the initiation of new proceedings, as he is of opinion that they would concern facts that have been already subject to the European Court’s assessment in its judgment.

• Bilateral contacts are underway to clarify the scope of individual measures in this case and the applicant’s situation.

General measures: This case presents similarities to that of H.N. (77710/01) (see the Podbielski group of cases, Section 4.2), in which measures have already been taken (publication and wide dissemination).

However, due to the peculiar circumstances of this case, the European Court’s judgment was also sent out to competent authorities (criminal courts, prosecutors, guardians and bailiffs).

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 in 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 return of children. Presidents of regional courts are obliged to send quarterly reports on execution of decisions on forcible removal of children under parental authority or in care, issued in accordance with the Convention on the Civil Aspects of International Child Abduction, and on execution of courts’ decisions on enforcement of contacts with minors. According to the 2007 and 2008 reports, cases of the first category are very rare and fall under supervision of the Department of International Co-operation and European Law of the Ministry of Justice, as they have to be completed within 6 weeks. On the basis of the reports obtained, the Ministry of Justice conducts a review of any irregularities and possible grounds of protracted enforcement of decisions concerning custody rights or contacts. Subsequently, the Ministry provides the Presidents of regional courts with an analysis of submitted reports, indicating irregularities and obliging them to eliminate them. Moreover, a systematic analysis of quarterly reports is conducted, followed by necessary supervisory actions. In 2009 the Ministry was planning to conduct an inspection in some district courts where irregularities had been found.

            4) Publication: The judgment of the European Court has been published on the website of the Ministry of Justice (www.ms.gov.pl) and disseminated to courts dealing with family issues.

• Information is awaited on the adoption of the bill prepared by the Ministry of Justice (see point 2 above).

55339/00          Różański, judgment of 18/05/2006, final on 18/08/2006

The case concerns a violation of the applicant's right to respect for his family life due to the obstacles placed in the way of his attempts to establish his paternity of a child (violation of Article 8).

From 1990 to 1994, the applicant lived with B.F., who gave birth to a boy, D. Following the break-up of their relationship, B.F. went into hiding with the child, with whom the applicant consequently lost contact. Having no locus standi under the applicable law, the applicant brought two suits, the first before the court of first instance requesting the designation of a legal guardian for the child who could bring an action on the child's behalf in the context of a paternity suit. He also applied to the pubic prosecutor to have such an action brought in his own behalf. The prosecutor dismissed his request in view of the risk of two parallel actions both aiming at the same result. In November 1995, the applicant abandoned his action before the court of first instance.

Then in July 1996 B.F.'s new companion, J.M., recognised the child as his own by a simple declaration which was validated by the court of first instance in proceedings to establish parental authority.

The applicant lodged several requests before the courts and the prosecutor with a view to contesting this recognition but these were rejected, from August 1996 to November 1998 on the ground that D.'s affiliation had already been established.

The European Court found that the violation found was due in general terms to the fact that there was no procedure directly accessible to the applicant by which he might claim the establishment of his paternity, the introduction of such a procedure being within the discretion of the authorities (§§73, 76). It also noted the absence in domestic law of any guidelines concerning how the relevant authorities should exercise such discretion, in the light of whether or not it is advisable to review a paternal relationship already established in law. In this respect the European Court considered that the authorities had exercised this power superficially in dealing with the applicant's requests to contest J.M.'s paternity.

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

• Information provided by the Polish authorities (982nd meeting, December 2006, and letter of 07/01/2007): The applicant has no access to his presumed child and is living in a hostel for persons of no fixed abode.

            1) Proceedings to annul the recognition of paternity: The Polish authorities indicate that Article 86 of the Family and Guardianship Code provides a potential remedy for the applicant: recognition of paternity may be contested following proceedings initiated by a prosecutor. Such proceedings may be brought at any time; there is no prescription. The applicant has no locus standi in such proceedings but he may lodge a request with the prosecutor responsible for the district where the mother and recognised father of the child live, to initiate them. The prosecutor then takes a decision taking account of biological criteria as well as the interest of the child.

            2) Proceedings to establish paternity: Following the amendment of Article 84 of the Family and Guardianship Code in 2004 (see below) this procedure is now open to the presumed father of the child provided that the recognition of JM's paternity had first been annulled.

• Bilateral contacts are under way to assess the applicant’s current situation and whether further individual measures are necessary.

General measures:

            1) Procedure to establish paternity:

• Measures already taken (information provided by the Polish authorities at the 982nd meeting (December 2006) and in their letter of 07/01/2007): Following the declaration of the Constitutional Court on 28/04/2003 that article 84 of the Family and Guardianship Code was unconstitutional, the article was modified on 17/06/2004 (in force on 19/07/2004) and now also allows presumed fathers also to bring actions to establish paternity.

            2) Procedure to annul the recognition of paternity

• Information provided by the Polish authorities (letters of 07/01/2007 and 24/08/2007): The absence of a locus standi for presumed fathers in proceedings of this type does not call for any change in the procedure. The purpose of limiting locus standi to the public prosecutor, the child or its mother is to protect the rights of mother and child should a man suddenly claiming to be the father contest a paternity already established.

This approach has been confirmed by the Constitutional Court's judgment of 17/04/2007. The Constitutional Court found that the provision of Article 81 of the Family Code allowing a child to challenge a recognised paternity was not contrary with the Polish Constitution insofar as it does not grant such a right to the biological father.

• Assessment: the Secretariat notes that, although the problem of the absence of locus standi for presumptive fathers in proceedings to establish paternity has been resolved (see point 1 above) the European court also criticised the fact that there are no guidelines in Polish law on how the competent authorities are to exercise their discretionary power with regard to the desirability of calling into question paternities already established.

            3) Information on the current practice of public prosecutors concerning annulment of the recognition of paternity: In exercising their powers with regard to the desirability of calling into question paternities already established, prosecutors have to apply certain rules. First, they must establish whether the recognition of paternity was admissible under the provisions of law and the circumstances in which it took place. Then they check whether the man who recognised the child was aware of the fact that he was not its biological father, whether his declaration of paternity recognition was not legally flawed and the validity of the mother's consent. Lastly, the prosecutor examines whether the annulment of paternity recognition would be in the child's interest.

• Information is awaited as to how such guidelines have been adopted. A copy of the text would be also useful.

4) Publication: The European Court’s judgment has been published on the website of the Ministry of Justice www.ms.gov.pl.

77782/01           Luczak, judgment of 27/11/2007, final on 02/06/2008

The case concerns the discrimination suffered by the applicant due to his request for admission to the farmer’s social security scheme being turned down on the basis of his nationality (French) (violation of Article 14 in conjunction with Article 1 of Protocol 1).

The applicant had lived and worked in Poland since 1984 and as an employee he had been affiliated to the general social security scheme for some years. In 1997 the applicant and his wife (Polish national) bought a farm and decided to make their living from the farm. On 2/12/1997 the applicant requested the Częstochowa branch of the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers' social security scheme, which, on 16/12/1997, was refused on the ground that he was not a Polish national, a condition stipulated in the Farmers' Social Security Act of 20/12/1990. As a result, the applicant did not have social security cover in the event of sickness, occupational injury and invalidity. In addition, he could not pay contributions towards his old-age pension.

The European Court found that the difference in treatment in admission to the Polish farmers’ social security scheme on account of the applicant’s nationality was not justified by any public-interest grounds.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary and pecuniary damage. The European Court took note of the fact that the applicant was deprived of the possibility to make contributions towards his retirement pension in connection with the violation found.

• Information is awaited on whether the period of time during which the applicant had worked in the farm and had been deprived of making contributions towards his retirement pension is taken into account when calculating his retirement pension.

General measures: On 2/04/2004 the 1990 Act was amended following Poland's accession to the European Union (EU) in that nationals of European Union member states and foreign nationals in possession of a residence permit could join the farmers' scheme (entry into force on 2/05/004). Consequently, the difference in treatment in the farmers’ scheme has been remedied.

• Information is awaited on measures taken/envisaged as to how the period of time during which non-Polish nationals who were in the same situation as the applicant and, thus, deprived of making contributions towards their retirement pension under the farmers’ scheme is taken into account when calculating their retirement pension (i.e. before the entry into force of the amendment of the 1990 Act on 2/05/2004).

                        - 127 cases of length of detention on remand

                        Interim Resolution CM/ResDH(2007)75

                        (see Appendix for the list of cases in the Trzaska and Kauczor group)

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

The Bagiński, D.P. and G.K. cases also concern the prolonged detention on remand of the applicants, without a legal basis, from 01/01/1997 to 24/01/1997 due to the fact that the Polish authorities’ request to extend their detention had been filed after the expiry of the time-limit fixed in interim domestic provisions of 1995 (violations of Article 5§1).

In the case of Łatasiewicz,the European Court found that the applicant’s detention was irregular in that it was not based on a judicial decision (violation of Article 5§1).

The Bagiński case also concerns the failure to bring the applicant promptly before a judge, in that he was initially placed in detention on the basis of a decision by the prosecutor (violation of Article 5§3).

In the Bagiński, G.K., Trzaska, Wedler, Wesołowski and Zywicki cases, the European Court found that the proceedings to review the lawfulness of the applicants’ detention on remand were not adversarial (violations of Article 5§4). Moreover, the Trzaska, Jabłoński and Iłowiecki cases concern the domestic courts' failure to examine promptly the applicants’ requests for release between 1993 and 1996 (violations of Article 5§4).

The cases of Jabłoński, Szeloch, Iłowiecki, Kauczor, Kreps and Olstowski also concern the excessive length of the criminal proceedings brought against the applicants (violations of Article 6§1).

The Cabała, Cegłowski, Dzyruk, G.K., Gąsiorowski and Góral cases also concern the violation of the applicants’ right to correspond with the organs of the Convention (violations of Article 8).

Finally, in the Bagiński case, the European Court found a violation of the applicant’s right to respect for his family life (violation of Article 8), since the restrictions placed on visits by his mother between December 1995 and May 1996 exceeded what was necessary in a democratic society to defend public order and prevent the commission of offences.

Individual measures:

            1) Violations of Article 5§3: In most of the cases the European Court awarded just satisfaction in respect of non-pecuniary damage.

• Information provided by the Polish authorities: In the Jarzyński, Jaworski, Kankowski, Kozlowski and Krawczak cases the applicants were released from detention.

• Information is awaited concerning the applicants’ situation in the Choumakov, Konrad and Pakos cases.

            2) Violations of Article 6§1:

• Information provided by the Polish authorities: In the Olstowski and Iłowiecki cases, the proceedings were closed respectively on 03/02/2004 and 14/09/2004.

• Assessment: no further measure appears to be necessary.

General measures:

1) Violations of Article 5§3:

a) Legislative measures and Constitutional Court judgments: The grounds for placement and maintaining in detention on remand were modified with the entry into force on 01/09/1998 of the new Code of Criminal Procedure. Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending. According to Article 258§2 of the Code of Criminal Procedure, an accused may be detained on remand if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment). The maximum period of detention on remand before the case is referred to a court is limited to 3 months; in exceptional cases, to 12 months. Before a judgment is given, the maximum duration of detention on remand is limited to two years unless the appeal court extends it beyond that limit for any of the reasons set out in Article 263§4 of the Code of Criminal Procedure.

In its judgment of 24/07/2006 (reference No. SK 58/03) the Constitutional Court found that Article 263§4 of the Code of Criminal Procedure was in contradiction with the Polish Constitution in that it permitted the extension of remand beyond the two-year limit, in the context of investigation, in the case of “insurmountable obstacles”.

The article was consequently amended on 12/01/2007: it is no longer possible to prolong the detention beyond two years for such reasons. This only applies to detention on remand ordered prior to the completion of the preliminary investigation.

• Developments following the interim resolution:

On 10/06/2008 the Constitutional Court delivered another judgment concerning detention on remand (reference No. SK 17/07). In this case, it found that the courts’ practice of not taking into account the periods during which a suspect/accused remains in prison following a final conviction in different proceedings while counting the two-year limit for the detention on remand, was unconstitutional. Consequently, courts will have to change their practice.

On 30/04/2009 the government indicated that the Code of Criminal Procedure had been amended. The amendment, in force as of 22/01/2009, implies among other things a change in Article 263§4a, removing “insurmountable obstacles” as a ground for the extension of detention on remand.

Moreover, two other grounds for extending detention on remand were removed from Article 263§4: prolonged psychiatric observation of the accused and prolonged preparation of an expert opinion. Consequently, the extension of detention on remand will be possible only on grounds precisely mentioned in this provision: suspension of criminal proceedings, actions aiming at establishing or confirming the identity of the accused, conduct of evidentiary action in a particularly intricate case or abroad, or intentional protraction of proceedings by the accused.

A further draft amendment to the Code of Criminal Procedure is pending before the Ministry of Justice. It aims at imposing an obligation on prosecutors to provide detailed grounds on which requests for extension or imposition of detention on remand are based.

Finally, the authorities have created a working group to improve the monitoring of trends concerning the length of the detention on remand.

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

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

• Developments following the interim resolution: On 22/02/2008 the Ministry of Justice wrote to presidents of appeal courts asking the presidents of criminal sections to draw special attention to the drafting of decisions on the imposition or extension of detention on remand and to consider in every case the use of other preventive measures. A copy of the Interim Resolution CM/ResDH(2007)75 was attached to this letter.

The issue of the imposition and extension of detention on remand in accordance with the Convention is now included in the programme of courses for judges. A conference on this topic for appeal court judges took place in March 2008 in Cracow. Further conferences of this kind have been scheduled for 2009.

            c) Courts’ practice: In March 2006 the Polish authorities provided information on the practice of criminal courts concerning the imposition and extension of detention on remand. Out of the 11 appeal courts in the country six have made express reference in certain of their decisions to the case-law of the European Court and also in some cases to the circular sent out by the Ministry of Justice. In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country. In two other appeal courts, similar decisions have been handed down in three cases, but without reference to the case-law of the European Court.

• Developments following the interim resolution: Copies of 21 recent court decisions from four appeal courts’ jurisdictions showing “good practice” in the use of preventive measures have been provided. In these decisions, courts referred to the Convention and the European Court’s case-law while deciding on the use of such measures, including detention on remand. In a few cases detention on remand, ordered at the earliest stage of criminal proceedings, was replaced by other preventive measures.

            d) Statistics: The Polish authorities have also provided statistics on the average duration of detention on remand (see Interim Resolution CM/ResDH(2007)75).

• Developments following the Interim Resolution: Because of the inconsistency of data derived from different sources, a special group has been created in the Ministry of Justice to draw up an efficient mechanism for evaluating trends concerning length of detention on remand and new forms for the statistical data concerning the imposition and extension of detention on remand.

According to the data provided by the Ministry of Justice, in the year 2007 public prosecutors all over Poland lodged with the district courts 36,408 motions to remand in custody, i.e. 4,8% fewer than in 2006 (38,272). Courts allowed 31 271 motions, which is 0,2% fewer than in 2006. In the first half of 2008 (until 30/06/2008) the number of such motions amounted to 13 887, which was 28,7% fewer than in the first half of 2007 (19 495). Courts allowed 11 582 motions, i.e. 31,2% fewer than in the first half of 2007 (16 845).

On 31/12/2007, 10 461 people remained in detention on remand pending proceedings before district and regional courts, which was 13,2% fewer than at the end of 2006 (12 055 people). On 30/06/2008 the number of people in detention on remand pending proceedings before these courts amounted to 7 633, which was 35,3% fewer than at the end of the first half of 2007 (10 328).

As regards the number of people on remand pending investigation, this number amounted to 33 109 in the course of 2007 (no data have been provided for previous reporting periods). On 30/06/2008 the number of such people amounted to 15 656.

Concerning detention lasting between 12 months and 2 years or more than two years, in 2007 the number of such detentions pending proceedings before district courts has slightly increased and amounted respectively to 952 (918 in the year 2006) and 203 (192 in the year 2006). On 30/06/2008 the number of pre-trial detentions pending proceedings before district courts and lasting between 12 months and 2 years amounted to 586 (compared with 955 on 30/06/2007) and the number of pre-trial detentions lasting over 2 years amounted to 157 (compared with 185 on 30/06/2007).

Concerning pre-trial detentions pending proceedings before regional courts and lasting between 12 months and 2 years or more than two years, in 2007 their number decreased: respectively to 1 306 (1 362 in 2006) and 793 (850 in 2006). On 30/06/2008 their number amounted respectively to 1 264 and 701.

Concerning detention on remand pending investigation before the prosecutor, in the course of 2007 165 people were detained for a period between 6 months and 2 years and 29 remained in detention on remand for over 2 years (no data have been provided in this respect for previous years). On 30/06/2008 these figures amounted respectively to 61 and 16.

The authorities are of the opinion that the number of detainees on remand is gradually decreasing. According to the data provided by the prison authorities, in May 2001 it amounted to 25,000 (32% of the prison population), while in February 2008 to 11,000 (12,5% of the prison population). The statistics for 2008 show that the number of the court remand orders further decreased in comparison to 2007 (by almost 23 %). On 31/12/2008 the number of pre-trial detainees was 22,1 % lower than in 2007. As regards "long" detentions (between 12 months and 2 years and beyond 2 years) on 31/12/2008, the tendency was declining. Their number considerably decreased in 2008 before district courts (approximately by 50 %) and slightly decreased with respect to those ordered by regional courts.

• Assessment: the above data indicate a general downward trend in the number of suspects/accused remanded in custody. In 2008, the number of prosecutors’ motions for applying pre-trial detention, the number of detentions ordered by courts, the number of people detained pending investigation and proceedings before district and regional courts decreased compared with the situation in 2007. Moreover, the number of long detentions (between 12 months and 2 years and over 2 years) has decreased in case of detention pending proceedings before district courts. Concerning detention pending proceedings before regional courts, the number of detentions lasting over 2 years has decreased, but that of detentions lasting between 12 months and a year has remained almost unchanged. The number of detentions on remand lasting over 6 months pending the prosecutor’s investigation has also decreased. Thus the data for 2008 show a downward trend as regards long detentions.

Despite these positive developments, however, the Secretariat still notes with concern that the number of judgments of the European Court finding violations of Article 5§3 has increased. In the recent judgment of Kauczor (judgment of 3/02/2009, see also DD(2009)39), followed by a judgment in the case Hilgartner (judgment of 3/03/2009, final on 3/06/2009) the European Court concluded that many cases have demonstrated that the excessive length of detention on remand in Poland revealed a structural problem consisting of “a practice that is incompatible with the Convention” (§60) and invited the Polish authorities, under Article 46, to make further efforts to take general measures to solve this problem (§§61-62). It noted that approximately 145 applications raising this issue were currently pending before it, out of which nearly ninety had already been communicated to the Polish government (§ 56).

The measures taken/envisaged by the Polish authorities in response to Interim Resolution CM/ResDH(2007)75 are welcomed but the Polish authorities are also encouraged to take further steps to solve the problem of excessive length of detention on remand. The examples of good practices provided in 2008 are very restricted and concern only 6 out of 11 appeal courts in the country. The domestic courts still very rarely decide to replace detention on remand by another preventive measure, even if in some cases the domestic judges refer to the Convention and the case-law of the European Court.

• Information is awaited on the impact of the amendment to Article 263 and on the adoption of further amendments to the Code of Criminal Procedure, on further awareness measures (publication and dissemination of the European Court’s judgments) and monitoring of courts’ practice concerning the imposition of detention on remand and other preventive measures as well as the introduction of an efficient mechanism for evaluating the trends in this respect. Moreover, it would be useful to receive information on the trends in 2009 concerning length of detention on remand, and in particular long detentions. Clarification would be also useful on the number of remands decided by district and regional courts and on the trends concerning detention pending investigation. Information is also awaited on the outcomes of the working group created to improve the monitoring of trends concerning the length of detention on remand.

2) Violations of Article 5§1 in the cases of Bagiński, D.P and G.K.:

• Information provided by the Polish authorities: For the year 2005 the Minister of Justice adopted “The guidelines for the exercise of supervision of the activity of ordinary courts”, on the basis of the Decree of 25/10/2002 on the Procedure of supervision of the administrative activity of courts. According to these guidelines, pending criminal cases in which detention on remand has been extended for more than 2 years are placed under the supervision of the presidents of courts of appeal, who are to ensure that proceedings are expedited rapidly.

In February 2006, the Minister of Justice wrote to all prosecutors reminding them of the legal rules concerning detention on remand. In this letter the Minister emphasised inter alia that prosecutors should conduct investigations promptly and that they should ask judges to prolong detention on remand, in principle, in cases in which a detainee is suspected of having committed a crime or an offence liable to a sentence of 8 years’ imprisonment or more.

Moreover, in March 2007, the Minister of Justice sent out a circular to Presidents of courts of appeal concerning the finding of such a violation in the D.P. judgment.

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

3) Violation of Article 5§1 in the Łatasiewicz case: The European Court found that the domestic practice of prolonging detention on the sole basis of a criminal charge was the result, at the material time, of the lack of any precise rule in national law governing the situation of detainees during judicial proceedings, after expiry of the period of detention fixed by the detention order issued at the investigatory stage. This practice is no longer possible in the light of the provisions of the Code of Criminal Procedure to the effect that any extension of detention must be on the basis of a court decision.

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

4) Violation of Article 5§3 concerning the right to be brought promptly before a judge and violations of Article 5§4 in respect of the lack of fairness of the procedure to review the lawfulness of the applicants’ detention on remand: These cases present similarities to that of Niedbała (judgment of 04/07/2000) closed by Resolution ResDH(2002)124 following the entry into force on 01/09/1998 of the new Code of Criminal Procedure. According to Article 249 of the Code, before deciding on the application of preventive measures, a court shall hear the defendant. His counsel shall also be allowed to attend the court’s session.

• Assessment: no further measure appears necessary.

5) Violations of Article 5§4 (prompt examination of appeals against detention pending trial):

• Information provided by the Polish authorities: Under the terms of Article 252§3 of the new Code of Criminal Procedure, any appeal against a preventive measure (including placing and keeping someone in detention pending trial) must be examined promptly. Article 254§1 provides that applications requesting lifting or modification of preventive measures must be decided by a prosecutor at the preliminary investigation stage, or by a judge when the criminal proceedings are at the trial stage, within three days.

• Assessment: This being the case, no further general measure appears necessary.

            6) Violations of Article 6§1: The cases present similarities to other cases concerning the length of judicial proceedings before criminal courts (see Kudła, 30210/96, judgment of 26/10/2000, Interim Resolution CM/ResDH(2007)28, Section 4.2, December 2009).

            7) Violations of Article 8: The cases also present similarities to that of Klamecki No. 2 (31583/96, Section 4.2, 1078th meeting, March 2010).

            8) Publication of the judgments of the European Court: The judgments in the cases of Trzaska, Baranowski, Chodecki, Goral and Iłowiecki were published in the Bulletin of the Council of Europe Information Centre and disseminated to the competent authorities.

The D.P., Olstowski and Chodecki judgments were also published on the website of the Ministry of Justice, www.ms.gov.pl.

The Deputies, 1.             welcomed the information provided by the authorities on the legislative reforms, the monitoring of proceedings concerning accused persons detained on remand and on the recent statistics; 2.             noted with interest that the downward trend in the number of detentions on remand ordered by domestic courts and in the number of detentions on remand lasting over 2 years, observed in 2008, was confirmed for the first half of 2009; 3.             recalled nevertheless that the problem of excessive length of detention on remand is of a systemic nature and noted with concern the increased number of judgments of the European Court finding violations of Article 5§3 in respect of Poland; 4.             encouraged the Polish authorities to continue their efforts to reduce the excessive length of detention on remand and invited them to provide an action plan on further possible general measures to be taken in this context; 5.             decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on additional general measures and on individual measures, if need be.

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 6.2), in which information was provided 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.

- 2 cases concerning the unlawful detention of the applicants 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.

19206/03           Bruczyński, judgment of 04/11/2008, final on 04/02/2009

This case concerns the excessive length of detention of the applicant on remand between 2000 and 2004, 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” (violation of Article 5§3).

Moreover, the European Court found that the applicant did not have at his disposal an enforceable right to compensation for his detention on remand, which it had found to be in violation of Article 5§3 (violation of Article 5§5).

Individual measures: The applicant was released in 2004. The European Court awarded him just satisfaction in respect of non-pecuniary damage occasioned by the unreasonable length of his pre-trial detention.

• Evaluation: no other measure appears to be necessary.

General measures:

1) Violation of Article 5§3: This case presents similarities to the Trzaska group (Section 4.2).

2) Violation of Article 5§5: The European Court noted, first, that the applicant could not avail himself of the remedy provided in Article 552§4 of the Code of Criminal Procedure since reliance on that provision pre-supposes that the criminal proceedings giving rise to remand have been terminated and the applicant’s case was still pending before the Supreme Court when it delivered its judgment.

Secondly, the applicant could not use the relevant provisions of the Civil Code on the State’s liability for tort, as the applicant’s detention ended before the entry into force of these provisions in September 2004.

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

21508/02           W.S., judgment of 19/06/2007, final on 24/09/2007

This case concerns the violation of the applicant’s right to a fair trial and right to obtain attendance and examination of witnesses (violation of Article 6§1 in conjunction with Article 6§3(d)).

By a judgment of 06/11/1997 of the Łòdź Regional Court, the applicant was convicted of sexual abuse of his four-year-old daughter, X, and sentenced to four years’ imprisonment. His conviction, upheld at appeal, was mainly based on the opinions of a psychologist who had interviewed X in 1994 and 1995, according to relevant provisions on taking evidence from minors.

The European Court noted that X had never at any stage been questioned either by the police, the prosecutor or the court. The authorities did not attempt to test the reliability of the victim in a less invasive manner, such as an interview in the presence of a psychologist with written questions from the defence or, in a studio, enabling the applicant or his lawyer to be present indirectly via a video-link or one-way mirror. No procedure was introduced to counterbalance the difficulties faced by the defence and the applicant and the latter was not given an adequate and proper opportunity to challenge and question this witness against him.

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

Under Article 540§3 of the Code of Criminal Procedure, the applicant may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court (see the Skałka case, 43425/98, Section 6.2).

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

General measures: It appears that the violation in this case resulted from the decisions of the prosecutors and the criminal courts. In any event, the Code of Criminal Procedure was amended on 03/06/2005 by addition of Articles 185a§1 and 185b on the conduct of the examination of victims and witnesses under 15. Pursuant to Article 185a§1 of the Code, a victim younger than 15 should be examined only once in cases concerning sexual offences or offences against the family and guardianship, unless essential facts are disclosed which require additional examination or unless the accused, who had not had defence counsel in the course of the first examination, demands it. Pursuant to Article 185b§1, a witness who is under 15 at the time of examination may be examined under conditions specified under Article 185a§1 in cases concerning offences committed with violence or unlawful threats, only if his/her testimony might have an essential bearing upon the outcome of the case. A psychologist is always involved in the examination of such victims or witnesses.

The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl) and sent out to all presidents of appeal courts and subsequently to all other district and regional criminal courts, along with a circular.

• More detailed information is expected on the amendment to the Code of Criminal Procedure mentioned above and on its application in practice (role of the trial court, rules on ordering psychological reports in case of examination of minor victims of crime, possibility for the accused to be involved in such examination). Information is also awaited on any further measures envisaged to avoid similar violations.

22695/03           Demski, judgment of 04/11/2008, final on 04/02/2009

This case concerns the unfairness of criminal proceedings brought against the applicant in that he could not question or have questioned the sole prosecution witness (violation of Article 6§1 in conjunction with Article 6§3(d)).

In 2001 the applicant was convicted to 4 years’ imprisonment for rape in proceedings in which the statements of the victim, who was the only direct witness, were made at the pre-trial stage. During the trial the applicant had no possibility to put questions to her or to confront her with other evidence.

The European Court concluded that the applicant’s conviction was based mainly on depositions of a witness whom he had had no opportunity to examine or to have examined either during the investigation or at the trial and that, in consequence, his rights of defence had been restricted to an extent which was incompatible with the requirements of Article 6.

Individual measures: Under Article 540§3 of the Code of Criminal Procedure, the applicant may apply to have the criminal proceedings reopened invoking the finding of a violation by the European Court. Having regard to this possibility, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

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

General measures: The European court noted that the first-instance court had not made every possible effort to summons the victim to testify at the trial although her address was known. It stated furthermore that if it had been established that the victim was not in a position to take part in the trial, arrangements could have been made so that she could testify without suffering the ordeal of cross-examination whilst at the same time respecting the rights of the defence (§44).

The judgment of the European Court has been translated and published on the website of the Ministry of Justice (www.ms.gov.pl <http://www.ms.gov.pl/>).

• Information is expected on the dissemination of the European Court's judgment to relevant authorities (criminal courts and the Supreme Court) as well as on other measures envisaged or taken to prevent similar violations.

- 2 cases concerning the lack of equality of arms in proceedings concerning the review of the lawfulness of the applicants’ detention on remand

22755/04           Chruściński, judgment of 06/11/2007, final on 06/02/2008

28481/03           Łaszkiewicz, judgment of 15/01/2008, final on 15/04/2008

These cases concern a violation of the principle of equality of arms and of the adversarial principle in proceedings concerning the lawfulness of the applicants’ detention on remand at the stage of investigation proceedings (violations of Article 5§4).

In the Chruściński case, between April 2003 and December 2004, for over 20 months during which the applicant was detained on remand, neither he nor his lawyer was allowed by the prosecutor to consult the case-file. The European Court considered that during this period the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre-trial detention, while the prosecutor was familiar with the whole file.

In the Łaszkiewicz case, between January and September 2003 the applicant’s detention on remand was prolonged four times without her or her counsel having been served in advance with copies of the prosecution’s motions to that end. Moreover, between May 2003 and October 2003 they did not have access to the case-file and their request for a copy of the prosecution’s motion was refused by the Regional Prosecutor in June 2003.

The European Court found that in these circumstances the applicant could not adequately challenge the Regional Prosecutor’s motions to extend her detention.

Individual measures:

In the Chruściński case, in December 2004 the applicant and his lawyer were able to acquaint themselves with the case-file. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

In the case of Łaszkiewicz, it appears that during a hearing in October 2003 the Appellate Prosecutor agreed to provide the applicant’s counsel with a copy of his motion to prolong the detention (§ 34 of the judgment). On 27/01/2004 the applicant was released on bail and on 07/06/2004 her counsel was allowed to consult her file under Section 321 of the Code of Criminal Procedure, as the investigation was coming to an end. The European Court found that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

• Assessment: no further individual measure appears necessary.

General measures: The issue of access to the case-file at the stage of preliminary investigation is governed by Section 156§5 of the Code of Criminal Procedure, according which parties and counsel shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the investigation. Refusal to grant access to the case-file may be subject to appeal to the higher body (Section 159).

According to Section 321§1 of the Code of Criminal Procedure, at the motion of the suspect or his or her counsel, the person in charge of the preliminary investigation, when finalising it, informs the suspect and the counsel of the final date for consulting the case-file.

• Information provided by the Polish authorities: On 03/06/2008 the Constitutional Court delivered a judgment (case No. 42/07), in which it declared that Section 156§5 of the Code of Criminal Proceedings is contrary to the Constitution insofar as it authorises denial of access to materials which justify the prosecutor’s motion concerning detention on remand. This provision remains in force, but it should be interpreted in such a way that the accused concerned by a prosecutor’s motion for the placement in or extension of detention on remand should be allowed to consult the materials constituting the grounds of this motion. However, the Constitutional Court invited the legislator to amend the existing provisions so that any arbitrariness can be avoided in applying them.

Following the Constitutional Court’s judgment of 03/06/2008, legislative work to amend Section 156§5 of the Code of Criminal Procedure is going forward. The aim of this amendment would be to provide, for accused and their lawyers, greater access to files at the preliminary investigation stage. The authorities also envisage including in the Code of Criminal Procedure an obligation to serve the accused and his or her counsel with prosecutor’s motions to prolong detention on remand and, in case the detention on remand lasts over 2 years, lower courts’ motions addressed to appeal courts to the same end (amendments of Sections 263 § 2 and 4 of the Code of Criminal Procedure).

• Assessment: it seems that the violation in these cases resulted from the prosecutors’ practice which, although in conformity with national law (Section 156§5 of the Code of Criminal Proceedings), was contrary to the Convention.

• Information is awaited on the follow-up of the legislative process as well as on the publication of the European Court’s judgment and its dissemination to prosecutors.

77765/01          Laskowska, judgment of 13/03/2007, final on 13/06/2007

This case concerns the lack of effective access to the Supreme Court on account of the Regional Court’s flawed interpretation of domestic law (violation of Article 6§1). In 2000, the applicant seised the Regional Court to request legal aid with a view to lodging an appeal on a point of law in proceedings concerning her entitlement to a maintenance allowance. The Regional Court dismissed her appeal on the ground that no such appeal was available in cases of this kind. The applicant nonetheless lodged an appeal herself, without legal assistance, but in September 2000 the Regional Court rejected it on the ground that legal representation was compulsory in such proceedings. The applicant appealed against this decision, and in January 2001 the Supreme Court indicated that the applicant was entitled to appeal on a point of law this case, but dismissed her appeal on formal grounds, namely the late lodging of the appeal and the absence of legal representation.

The European Court found that the applicant could not be held responsible for the error committed by the Regional Court.

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

It should be noted that Article 168§1 of the Code of Civil Procedure provides a possibility of leave to appeal out of time, if a party was not able to perform a measure within the prescribed time-limit through no fault of his/her own (see § 33 of the judgment).

• Information is awaited on the applicant’s situation in order to assess whether individual measures are necessary.

General measures: The violation resulted from the Katowice Regional Court’s erroneous premise that an appeal on a point of law was not available in the applicant’s case in the light of the provisions of the Code of Civil Procedure as in force at the material time. However, since then the provisions of Code concerning appeals on points of law have been amended.

Concerning the refusal to provide the applicant with legal assistance in the appeal proceedings before the Regional Court, the European Court did not find it necessary to examine whether it amounted to a breach of Article 6§1 (§62 of the judgment). The problem of not granting legal aid for lodging an appeal on points of law is being examined in the case of the Tabor (judgment of 27/06/06, final on 27/09/06, Section 4.2 of this meeting).

• Information is awaited on publication of the European court’s judgment and its dissemination to appellate and regional courts, as well as on the provisions currently in force concerning the possibility of lodging an appeal on points of law in similar cases and on other measures taken or planned by the authorities to avoid new, similar violations.

                       - 2 cases concerning deficiencies in the legal aid system

8932/05            Siałkowska, judgment of 22/03/2007, final on 09/07/2007

59519/00          Staroszczyk, judgment of 22/03/2007, final on 09/07/2007

These cases concern violations of the applicants' right of access to a court due to the refusal of their lawyers appointed ex officio to assist them in filing and lodging appeals on points of law, thus effectively depriving them of access to the Supreme Court (violations of Article 6§1).

In the Siałkowska case, in December 2004 the applicant's lawyer met her three days before the expiry of the time-limit for the appeal on points of law and then wrote to her explaining that in his opinion such an appeal did not offer reasonable prospects.

In the Staroszczyk case the lawyer was unreachable for almost seven months after the appellate court's judgment had been delivered. Eventually, in January 2000, he informed the applicants that there were no grounds for filing an appeal on points of law.

The European Court emphasised the importance of an effective, functioning legal profession to provide a fair administration of justice. However, when examining the circumstances of these cases, it had regard to the specific features of the Polish legal aid system and observed that the refusal of legal aid by a lawyer should meet certain conditions. In this respect the applicable regulations laid down no time-limit for lawyers to inform clients of their intention not to submit an appeal, nor did they oblige lawyers to prepare legal opinions on the prospects of appeals.

Consequently, in the first case the short time left for the applicant to prepare an appeal on points of law deprived her of a realistic opportunity of having the case brought before the Supreme Court. In the second case the absence of a refusal in written form left the applicants without the information they needed concerning their legal situation and the chances of having their appeal on points of law accepted by the Supreme Court.

Individual measures: In both cases the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. In the first case the domestic proceedings concerned the applicant's claim for a widow's pension. It was dismissed by a final judgment of the Wrocław Court of Appeal of 02/09/2004. In the second case, the applicants brought an action against the State Treasury concerning the allocation of a plot in the context of expropriation proceedings. Their claims were dismissed on 25/05/1999 by a final judgment of the Warsaw Regional Court.

• Information provided by the Polish authorities (07/07/2008): The applicants have thus far not availed themselves of the possible remedies of re-opening of civil proceedings or reinstatement within the time-limit for lodging a cassation appeal.

• Assessment: No further individual measure seems necessary.

General measures: Both violations resulted from deficiencies in the Polish legal aid system.

In this respect the European Court noted, among other things, that in its judgment of 31/03/2005 the Polish Constitutional Court had observed that the law applicable at the material time on the admissibility conditions for appeals on points of law had given rise to serious interpretational difficulties and discrepancies in the case-law of Polish courts (§§ 50 and 135 of the Staroszczyk judgment).

The judgments of the European Court were published on the website of the Ministry of Justice (www.ms.gov.pl <http://www.ms.gov.pl/>).

• Information provided by the Polish authorities (letters of 04/12/2007, 07/07/2008 and 17/02/2009):  

1) Action taken by the judiciary and the Ministry of Justice: The presidents of appeal courts have requested all judges within their jurisdiction to include in all letters concerning legal aid sent out to the Bar information to the effect that a lawyer has been appointed to provide legal aid to lodge an appeal on points of law and the relevant time-limits.

The Ministry of Justice also wrote to the President of the National Bar Council a letter asking the presidents of regional bar councils to inform advocates when they have been appointed to assist a party in proceedings concerning an appeal on points of law.

2) Regulations and practice of the Bar: The Bar Act of 1982 provides no time-limit for lawyers to inform their client and the appointing body of their legal opinion concerning the case. However, this should be done without delay under §57 of the resolution of the National Bar Council of 10/10/1998 - the Body of Ethical Rules.

On 15/09/2007 the National Bar Council adopted a resolution in which it recalled that an advocate may refuse to lodge an appeal on points of law if he or she sees no grounds for lodging it. Such grounds must be examined without delay. Refusal to lodge such an appeal shall be addressed in writing and without delay, to the client and the president of regional bar council. The advocate must also inform the competent court promptly.

These resolutions are internal rules of the Bar. However lawyer who fails to observe them may be liable to disciplinary proceedings under Article 80 of the Bar Act.

Where an advocate appointed ex officio has refused to lodge a cassation appeal, the regional bar council does not in principle appoint another, although there have been exceptions (one example was provided by the Bialystok regional bar association).

3) Reform of the Code of Civil Procedure: The Commission on codification of Civil Law agreed to review the functioning of the system of civil proceedings at the stage following the delivery of a final second-instance judgment and preceding the lodging of an appeal on points of law, in particular the system of legal aid. The Commission approved the idea of modifying Article 117 of the Code of Civil Procedure on appointing ex officio lawyers. This amendment should allow the parties receiving legal aid to choose their lawyer.

The Commission also supported the idea of introducing detailed regulations on lawyers’ refusal to lodge an appeal on points of law, especially by requiring a written form and fixing a time-limit. The Commission is also contemplating the introduction of an obligation upon judges to provide reasons for refusing to appoint a lawyer for the purpose of lodging an appeal on points of law, as well as measures to ensure observance of time-limits for lodging such appeals where legal aid has been applied for. The Commission has concluded its preliminary work on the draft and the draft amendments were transmitted to the Legal and Legislative Department of the Ministry of Justice.

4) Legal amendments undertaken regarding cassation proceedings: On 22/12/2004 the Code of Civil Procedure was amended as regards the provisions governing appeals on points of law (Article 398), fixing, inter alia, a two-months time-limit for lodging complaint after the service of a written decision (entry into force on 05/02/2005; Journal of Laws of 2005, No. 13, item 98).

5) Possibility to seek compensation for an attorney’s misconduct before a civil court: Based on a general rule of the attorney’s liability for incorrect or negligent conduct, a party may seek compensation before a civil court against an ex officio lawyer who refused to lodge an appeal on points of law (cf. Supreme Court’s judgment of 18/04/2002, II CKN 1216/00; and Gdansk Court of Appeal’s judgment of 25/11/2005, I Aca 1092/05). The following general conclusions may be drawn from this judgment of the Gdansk Court of Appeal:

(a) Under Polish law, a party may file a compensation claim against an ex officio attorney for misconduct when representing it.

(b) An ex officio attorney is obliged to submit in due time to the party and the court reasons in writing for refusing to lodge an appeal on points of law.

(c) The right to have a case examined by the Supreme Court constitutes a personal right under Articles 23, 24 and 448 of the Civil Code.

(d) The burden of proof for compliance with this right is incumbent on the attorney.

(e) In compensation proceedings the court examines the prospects of success of an appeal on points of law. Accordingly, if there had been sufficient prospects of success, the party is entitled to compensation for pecuniary damage. Otherwise, only damage for the violation of the personal right may be obtained.

            6) Complaint for declaring a final decision incompatible with the law before the Supreme Court: Since 05/02/2006, another alternative remedy is available for a party whose ex officio lawyer had refused to lodge an appeal on points of law, namely a complaint before the Supreme Court under Article 424 et seqq. of the Code of Civil Procedure for declaring an appellate judgment incompatible with the law. Such a finding by the Supreme Court entitles the successful party to seek compensation from the State Treasury, for example, under Article 417¹§2 of the Civil Code, for damage sustained on account of the adoption of a judgment contrary to the law.

• Information is still awaited on the follow-up given to the legislative reform envisaged (see point 3 above). Dissemination of the European Court's judgments to competent courts and the Bar would in any event be useful, at least as a provisional measure.

                       - 2 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 still 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 courts’ failure to take into account the criteria which flow from the Convention with regard to freedom of expression.

• Information provided by the Polish authorities: Both judgments were translated and published on the website of the Ministry of Justice (www.ms.gov.pl). In addition, they were sent to the judges of the Supreme Court.

• Information is awaited on the broad dissemination of the two judgments to competent civil courts as well as on other measures which might be envisaged to prevent new, similar violations (for instance, training).

74168/01           Wilkowicz, judgment of 04/11/2008, final on 04/02/2009

This case concerns the failure to enforce domestic decisions and judgments for more than 7 years.

The applicant had been entitled to a military pension as from 01/05/1993 by virtue of a decision of 28/08/1995 by the Social Authority but the Military Pensions Office did not pay the sums due as it considered this decision to be unlawful. The applicant consequently brought an action before the regional court. During these proceedings the Social Authority summonsed him to undergo an additional medical examination and, as he failed to comply with the summons, payment of a part of his pension was stayed as from 01/05/1996.

By judgment of 4/03/1999, the regional court allowed the applicant’s action and ordered the Military Pensions Office to pay the amount of pension due for the period between 01/05/1993 to 01/05/1996. Although this judgment was upheld at second instance in 2000 and then subsequently rendered enforceable, the Office failed to make payments until the Supreme Court dismissed its appeal on points of law in 2002.

The European Court noted that the applicant had had enforceable claims since the 1995 decision and that the pension had been paid to him only after 7 years, despite the enforceable second-instance judgment of 2000 (violation of Article 6§1 and Article 1 of Protocol No. 1).

Individual measures: In December 2002 the Military Pensions Office implemented the domestic court’s judgment and paid the applicant the amounts in arrears together with statutory interest.

Before the European Court, the applicant claimed compensation corresponding to the part of his pension which had not been paid to him after the Social Authority stayed payments in 1996 on account of his failure to undergo an additional medical examination. The European Court rejected the applicant’s just satisfaction claims for pecuniary damage, as it did not discern any causal link between the violation found and the damage alleged. However, it granted him just satisfaction in respect non-pecuniary damage.

• Information is still awaited as to whether further measures are necessary.

General measures: The violations resulted from the Military Pensions Office’s refusal to pay the applicant’s pension. The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl). It has also been distributed to Military Pensions Offices.

• Information is awaited as to whether further measures are envisaged to prevent similar violations. Information would also be appreciated as to whether Polish law provides a remedy in respect of such violations.

- 5 cases concerning the violation of the right to the peaceful enjoyment of possessions following modifications to the local land development plan

52589/99          Skibińscy, judgment of 14/11/2006, final on 26/03/2007 and of 21/10/2008, final on 06/04/2009

10446/03           Buczkiewicz, judgment of 26/02/2008, final on 26/05/2008

38185/02           Pietrzak, judgment of 08/01/2008, final on 07/07/2008

17373/02           Rosiński, judgment of 17/07/2007, final on 17/10/2007

38672/02           Skrzyński, judgment of 06/09/2007, final on 06/12/2007

These cases concern interferences with the applicants' right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No 1) which occurred between 1993 and 2003. Following modifications to the local land development plans adopted between 1992 and 1998 the applicants were deprived de facto of the use of their land and constantly threatened with expropriation.

Moreover, they had no effective entitlement to compensation under the specific provisions of Local Planning Act of July 1994, which excluded the application of its compensatory provisions in respect of plans adopted before 1995. A new Local Planning Act, which entered into force in July 2003, did not alter the applicants' situation, as it was operational only in respect of local land development plans adopted after that date.

The European Court concluded that a fair balance was not struck between the competing general and individual interests and that the applicants had been required to bear an excessive individual burden.

Individual measures:

            1) Skibińscy case: The Local Development Plan expired at the end of 2003 and in April 2004, the municipal authorities granted the first applicant initial planning permission (§27 of the judgment).

The applicants have been awarded just satisfaction for the pecuniary damage by the European Court.

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

            2) Rosiński and Skrzyński cases: The Local Development Plan expired at the end of 2002. On 25/08/2003 the applicant Rosinski was granted an initial planning permit in respect of his land (§25 of the judgment). The applicant Skrzynski was also granted a final building permit on 25/11/2003.

Both applicants have been awarded just satisfaction for non-pecuniary damage by the European Court.

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

            3) Buczkiewicz case: The Local Development Plan expired on 31/12/2003. Apparently to date no new land development plan has been adopted by the municipality (§19 of the judgment). The applicants have been awarded just satisfaction in respect of non-pecuniary damage by the European Court. Their claims for pecuniary damage were rejected by the European Court, which found that the applicants had not quantified them.

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

            4) In the case of Pietrzak: The Local Development Plan expired on 31/12/2003. Apparently no new land development plan has been adopted by the municipality and the applicant has not applied for planning permission (§§ 29-30 of the judgment). The applicant has been awarded just satisfaction in respect of non-pecuniary damage by the European Court. His claims for pecuniary damage were rejected by the European Court, as it did not find any causal link between the violation found and the pecuniary damage alleged.

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

General measures: The European Court noted that the measures which affected the applicants' situation were taken on the basis of the Local Planning Act of 1994 and that the planning laws subsequently adopted had made no provision for retroactive compensation (§95 of the judgment in the case of Skibinscy).

• Information provided by the Polish authorities: No local land development plan adopted before 01/01/1995 is now in force and thus cannot constitute a basis for limitations of landowners’ rights. Where a new local land development plan is adopted and imposes limitations on owners’ rights, owners affected by its provisions are entitled to seek redress under Section 36 §§ 1-3 of the 2003 Local Development Plan Act. The legal regulations currently in force exclude the possibility of similar violations.

• Information is awaited on measures envisaged or taken to guarantee to persons in a position similar to that of the applicants a retrospective right to compensation for prejudice suffered before the entry into force of the 2003 Local Development Plan Act, as a result of restrictions originating in land development plans adopted in the past.

 

- 46 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

48247/06           Dublas, judgment of 07/10/2008, final on 07/01/2009

39712/05           Dudek Janusz, judgment of 13/01/2009, final on 13/04/2009

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

46887/06           Pawlak Leszek, judgment of 16/12/2008, final on 16/03/2009

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

20315/04           Wierzba, judgment of 13/11/2008, final on 13/02/2009

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, Bąk, Czajka, Kudła and Ratusznik the applicants are no longer detained on remand.

• Assessment: No further individual measures are necessary.

            2) Violations of Article 6§1: In most of the cases the domestic proceedings have been closed.

• Information is expected on the state of proceedings and their acceleration and/or closure, if need be, in the cases of Bąk, Abramczyk, Amurchanian, Dudek, Krawczak, Malikowski, Osiński, Poplawski, Ratusznik, Adam Sienkiewicz, Szklarska and Szydlowski.

General measures:

            1) Violation of Article 3 in the case of Iwánczuk:

On 31/10/2003 the Minister of Justice adopted new regulations on safety in penitentiary establishments, which were amended on 29/03/2007 (amendment in force on 01/06/2007). Article 94 of these regulations concerning searches henceforth only concerns “cursory searches”, the term “body search” having been deleted. This provision contains a list of situations in which detainees may be subjected to search, including where it is justified for the protection of order or security.

• Assessment: no further general measure seems necessary.

            2) Violation of Article 5§3 in the case of Iwánczuk (unjustified delays before the release):

The judgment of the European Court was published on the website of the Ministry of Justice (www.ms.gov.pl) and in the Bulletin of the Council of Europe, issue No. 3 of 2002. In 2003, it was also sent out by the Ministry of Justice to prison authorities and courts.

• Assessment: no further general measure appears necessary.

            3) Violations of Article 5§3 (excessive length of detention on remand) : The Abramczyk, Amurchanian, Bąk, Czajka and Kudła cases present similarities to those of Trzaska and others against Poland (Interim Resolution CM/ResDH (2007)75, Section 4.2, December 2009).

            4) Violations of Article 6§1:

• Measures taken:

- Legislative measures: A number of legislative measures were taken to accelerate criminal proceedings in the framework of the 1997 Code of Criminal Procedure, in particular the amendments which came into effect on 01/07/2003. According to the most important provisions, courts may no longer refer cases back to the preliminary proceedings in order to conduct further investigations; increased possibilities of closing criminal proceedings by way of settlement are provided and preliminary proceedings and those concerning several co-defendants are simplified.

- Structural measures to cut the duration of court proceedings and reduce the existing backlog: The authorities undertook a reform of the court system and recruitment of new judges, assessors and judicial assistants (referendarze sądowi). Other measures were aimed at better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, increase of the courts’ budget, etc.

- Supervisory measures: The Minister of Justice is involved in analysing the causes of delay in judicial proceedings in the framework of its competence of administrative supervision of courts’ work.

• Measures taken and envisaged following the adoption of Interim Resolution CM/ResDH(2007)28:

Several structural and legislative measures have been taken (see the Podbielski group, Section 4.2). Moreover, as regards criminal proceedings, further amendments to the Code of Criminal Procedure were adopted on 16/11/2006 and 15/03/2007 introducing an “accelerated procedure” (postępowanie przyspieszone) and 24-hour courts for cases in which the perpetrator was caught in flagranti, and limiting the participation of lay judges in adjudicating panels. On 01/02/2008 the Act on Court Medical Advisers entered into force, according to which only a court-appointed physician is entitled to issue a medical certificate confirming the sickness of a party or participant in the proceedings.

Statistics for 2007 and 2008 were provided. In 2007, the number of new criminal cases amounted to 2 642 826 and 2 669 291 cases were completed. In that respect, an increase of new cases before the regional courts has been noted (from 65 972 to 74 872). Concerning appeal courts, the number of cases slightly decreased (by 2.6%).

In 2008 there were 2 546 296 new criminal cases introduced before courts. The courts completed 2 536 773 cases. The backlog increased from 390 876 cases pending at the end of 2007 to 399 585 at the end of 2008. The average length of proceedings reached 1 year and 9 months in 2008, comparing to 1 year and 8 months in 2007.

• Assessment: in 2007 the number of new criminal cases was slightly lower than the number of cases completed. However, at the end of 2008 the number of cases completed decreased and the criminal courts still face an increasing backlog. The average length of criminal proceeding increased by 1 month in 2008.

• Further information on current statistics is expected. The authorities are also requested to submit further information on the impact of the measures undertaken following the adoption of Interim Resolution CM/ResDH(2007)28, as well as on further general measures envisaged. Information on functioning and outcomes of the supervisory measures undertaken by the Ministry of Justice would also be useful in this respect.

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

• Measures taken:

            - Legislative measures: On 17/06/2004 the Polish Parliament adopted a law on complaints against excessive length of judicial proceedings (entry into force on 17/09/2004), which allows those involved in court proceedings to file a complaint concerning the length of their civil or criminal proceedings while these are still pending. The appellate court may find a violation of Article 6 of the Convention and instruct the lower court to take measures to accelerate the proceedings. The appellate court can also award the complainant compensation of up to 10,000 zlotys (approximately 2,550 euro). On 17/06/2004, the Polish Parliament also adopted an amendment to the Civil Code (entry into force on 01/09/2004) concerning the civil liability of the State Treasury for actions or omissions of public authorities.

The Polish authorities have provided additional information on the implementation of the 2004 law on effective remedy. In 2007 the number of complaints under this law amounted to 2 617 (1.6% fewer than in 2006). The number of complaints examined was 2 594 (with the backlog slightly increasing). The average compensation awarded by courts in case of finding of excessive length amounted to 2 007 PLN (557 euro). In 2008, the number of such complaints amounted to 2 737 complaints (3.5% increase in comparison to 2007). The highest percentage (59%) concerned complaints about excessive length of civil proceedings. The courts dealt with the influx completely: 2 188 complaints were rejected on formal grounds or dismissed as unfounded and 549 were admitted with undue delays in the proceedings having been found. Compensation had been awarded in 370 of these cases, on average 2 368 PLN (approximately 590 euro) in each case. The relationship between justified complaints leading to a monetary satisfaction and justified complaints without that satisfaction being awarded, remained on the similar level – 67,4% in 2008 and 67,8 % in 2007.

Moreover, it should be noted that on 01/03/2005 the European Court declared inadmissible two Polish test cases concerning the length of judicial proceedings (Charzyński and Michalak), because the applicants had not made applications under a new 2004 law which could have provided them with an effective remedy. However, in the Czajka judgment of 2007 it noted that this domestic remedy had turned out to be ineffective, the Gdańsk Appeal Court having awarded the applicant manifestly inadequate compensation (nearly 25% of the amount awarded by the European Court in comparable cases) and the lower court having taken a further year to conclude the trial despite of an explicit instruction to finish it within a much shorter period (§56).

In the case of Zwoźniak, the European Court found a violation of Article 13, because the domestic court had refused to grant the applicant compensation for non-pecuniary damage without any reason, even though it had allowed his complaint about excessive length of proceedings. Furthermore, in the cases of Borowski, Krawczak and Szklarska, the European Court found a violation of Article 13 because the domestic courts had not taken into account the length of the investigation when assessing the overall length of the proceedings. In the Krawczak judgment, the European Court also criticised the fact the domestic court had excluded from its examination the period preceding the entry into force of the 2004 law.

Moreover in the cases of Sobczynski and Tur (see Podbielski group, Section 4.2) the European Court found a violation of Article 13 because the domestic court had not taken into account the overall length of domestic proceedings, but only of the proceedings before one degree of jurisdiction.

• Measures taken and envisaged following the adoption of the Interim Resolution CM/ResDH(2007)28:

On 20/02/2009 the Parliament adopted an amendment to the Law of 17/06/2004, which entered into force on 01/05/2009. It aims, in particular, at:

- introducing an effective remedy against excessive length of investigation;

- obligatory adjudication by courts of a fixed amount of compensation if the complaint was justified (between 2 000 and 20 000 PLN);

- introducing a possibility of using supervisory measures by the president of the competent court or the higher prosecutor, if the complaint was justified;

- limiting the lodging of subsequent complaints: a new complaint could be lodged only 12 months after the previous one was examined; in cases in which detention on remand has been ordered this time-limit would be of 6 months.

Comprehensive assessment of the effectiveness of the amended Act will be conducted on the basis of data submitted quarterly by the presidents of all courts of appeal. A system has been put in place to monitor processing of the complaints and the number of instructions issued for the undertaking of relevant actions by courts examining merits of cases or by prosecutors in charge of supervising preliminary proceedings.

• Assessment: The adoption of the 2009 amendment to the 2004 law is to be welcomed. However, further information is awaited on measures to ensure that national courts examine the overall length of proceedings in accordance with the European Court’s case-law. In this context, publication and dissemination of the European Court’s judgment in the Krawczak case would be useful.

• Information would be also useful on the number of complaints lodged under the amended 2004 law (after May 2009) and the average compensation awarded by courts in case of finding of excessive length of proceedings. Moreover, the 2009 statistics on the average length of criminal proceedings and the number of protracted proceedings pending for more than five years would enable to assess the effectiveness of the introduced amendment.

            - Other measures to be adopted: Publication and wide dissemination of the European Court’s judgment in Scordino against Italy (judgment of 29/03/2006), to make magistrates aware of the problem of the amount of just satisfaction for non-pecuniary damage caused by excessive length of proceedings; various training covering the problem of effective remedy, organised in the framework of the newly created National Training Centre for Judges and Prosecutors (created on 04/09/2006).

            6) Violation of Article 8 in the case of Abramczyk:  The case presents similarities to the group Klamecki No. 2 (31583/96, 1078th meeting, March 2009).

The Deputies, 1.             welcomed the ongoing reform of the Criminal Code, Code of Criminal Procedure, Code of Execution of Criminal Sentences and Code of Civil Procedure, as well as of the Criminal Fiscal Code, with a view to accelerating and simplifying procedures; 2.             noted with interest the amendments to the Code of Civil Procedure, envisaged to the same end; 3.             recalled that the problem of excessive length of judicial proceedings in Poland is of a systemic nature and noted with concern that the increased influx of new criminal and civil cases has resulted in the fact that the domestic judicial backlog has not decreased considerably; 4.             invited the Polish authorities to continue carrying out their thorough reflection on a solution to this structural problem and to provide an action plan on additional  measures envisaged; 5.             decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on additional general measures and on individual measures, if need be.

                        - 208 cases of length of proceedings before civil and labour courts

                        Interim Resolution CM/ResDH(2007)28

                        (see Appendix for the list of cases in the Podbielski group)

These cases concern the excessive length of civil proceedings (violations of Article 6§1). In the Lizut-Skwarek, Chyb, Sobczynski, Swat and Tur cases, the European Court also found a violation of the right to an effective remedy (Article 13).

In the Górska, Kroenitz, Krzak and Zynger cases, the European Court found that, having regard to the applicants’ age, special diligence was required from the Polish authorities. Also, in the Durasik, R.P.D., Koblański, Sibilski and Irena Pieniążek cases, the European Court noted that having regard to what was at stake for the applicants (respectively compensation for bad medical treatment in the first two cases, compensation for wrongful conviction and unjustified detention, divorce and protection of personal rights) special diligence was required from the domestic courts in handling them.

As far as the Orzeł, Pachnik and Rychliccy cases are concerned, the European Court indicated that the proceedings (which dealt with compensation claims for medical malpractice and in respect of an accident) were of considerable importance for the applicants.

The cases of Lipowicz, Marszał, Mejer and Jałoszyńska, Wiatrzyk, Czech and Kędra concern the excessive length of certain proceedings before labour courts (proceedings in which the applicants sought reinstatement). In all these cases, the European Court noted that the domestic courts should have handled the cases with special diligence, taking into consideration what was at stake for the applicants.

Moreover, the case of H.N. concerns a violation of the applicant's right for respect of his family life (violation of Article 8). This violation was due to the authorities’ lack of adequate and effective efforts to ensure the return of the children of the applicant, a Norwegian national, in proceedings based on the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. The European Court criticised in particular the periods of inactivity before courts, the bailiff's omissions in preventing the escape of the applicant’s ex-wife with the children and the lack of action by the Ministry of Justice and the police following the information received from the Norwegian Central Authority.

Individual measures:

            1) Violations of Article 6§1: In most of the cases the Polish authorities have provided information on the progress of the proceedings which were still pending when the European Court rendered its judgments. In certain cases the domestic proceedings have been already closed (Fojcik, Górska, Hulewicz, Krzak, Kwiatkowski, Mączyński, Malinowska-Biedrzycka, Pachnik, Wyszczelski).

Moreover, the Polish authorities indicated that measures to accelerate the proceedings (e.g. the cases were placed under the administrative supervision of the president of the court and of the Ministry of Justice; the president of the competent court was urged by the Ministry of Justice to give priority to the applicants’ cases, etc.) had been taken in most of these cases.

• Information is expected on the state of proceedings and their acceleration, if need be, in the cases of Czaus, Górkiewicz, Jagiełło, Krzysztof Kaniewski, Kuczkowska, Kyziol, Romaniak, Sadura Tekiela and Wolnicka.

            2) Violation of Article 8 in the case of H.N.: The three children have been returned to the applicant.

• Assessment: no further individual measure is necessary.

General measures:

            1) Statistics: In 2007 the number of all new cases brought before the Polish civil or criminal courts amounted to 10 682 000 (5,6% more than in 2006). During that year 12 373 000 cases were pending (6,6% more than in 2006) and 10 683 000 cases have been completed (7,7% more than in 2006). Concerning civil cases, the number of completed cases exceeded the number of new cases, except in those concerning registration of companies and other entities and certain family law cases.

In the first half of 2008 (until 30/06/2008), the number of all new cases brought before the Polish courts amounted to 5 659 021, which was 9% more than in the first half of 2007, and 5 565 530 cases were completed, i.e. 5,9 % fewer than the number of new cases. On 30/06/2008 the backlog amounted to 1 782 054 cases, i.e. 9,4% more than at the end of the first half of 2007. Concerning civil cases, the number of new cases (1 237 044) increased by 15% compared with the first half of 2007. The number of completed cases (1 188 443) was lower than the number of new cases. On 30/06/2008 the backlog of civil cases amounted to 430 647 cases, i.e. 12,51% more than at the end of the first half of 2007. Overall, the statistics for the first semester of 2008 reveal an increase in new civil cases lodged and in the courts’ backlog. The same tendencies emerge from the statistics provided on 05/05/2009 for the whole year 2008.

2) Structural measures to cut the duration of court proceedings and reduce the existing backlog

Measures taken: reform of the court system, recruitment of new judges, assessors and law clerks (referendarze sądowi), better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and of the execution of judgments, implementation of information technology resources, adoption of special measures to reduce the backlog of certain specific courts (particularly in Warsaw), increase in courts’ budget, etc. (for more details see Interim Resolution CM/ResDH(2007)28).

Further measures taken and/or envisaged following the Interim Resolution (information provided in February 2008):

- Between 2006 and 2007 the number of judges and court staff increased (up to 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 welcomed and further information on their progress and impact is expected. However, it should be noted that the number of new cases introduced before Polish civil courts was still increasing in 2008 and the backlog of old cases has not decreased.

• Information is therefore still awaited on further measures aimed particularly on reducing the backlog. Statistics concerning the trends in 2009 are also expected. Moreover, clarification would be useful concerning the statistics provided (in particular on the average length of proceedings) and the functioning and outcomes of the supervisory control exercised by the Ministry of Justice over the speediness of judicial proceedings. Publication and dissemination of the European court’s judgments in Sobczynski, Swat and Tur would also be useful in order to draw domestic courts’ attention on the requirements stemming from the European Court’s case-law concerning the assessment of “the reasonable time” of proceedings.

            7) Violation of Article 8 in the case of H.N.:

Publication, dissemination and related measures: The Ministry of Justice has sent the judgment of the European Court out to presidents of district courts with a view to its dissemination to judges and guardians. A similar letter has been sent out to the Chief Commander of the National Police for the dissemination of the judgment to police officers.

The European Court's judgment has been published on the internet website of the Ministry of Justice http://www.ms.gov.pl.

In addition, the judgment has been discussed by civil servants dealing with the application of the Hague Convention in the Ministry of Justice (acting as the Central Authority in the meaning of the Hague Convention). The issue of expediting proceedings conducted on the basis of the Hague Convention will be included in the programme of the training for judges dealing with family law.

Enforcement of the Hague Convention in Poland: According to the Minister of Justice, in the majority of cases, this Convention is applied in an effective manner. Between January 2001 and October 2007, Polish courts delivered 34 decisions allowing applications introduced on the basis of its provisions. For the time being three judicial decisions ordering the return of a child to his or her parent living abroad remain unenforced due to the fact the children have been hidden by the other parent. Examples of cases in which abducted children were found by the police have been provided.

The problem of enforcement of judicial decisions concerning the return of children to parents who have been granted parental authority is governed by Sections 598⁶ - 598 ¹² of the Code of Civil Procedure. In case of non-enforcement of such a decision by the person concerned, the court may order the guardian to take the child by force. In doing so, the guardian may be assisted by the police, who may in particular help him in establishing the child's home.

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

The Deputies, 1.             welcomed the ongoing reform of the Criminal Code, Code of Criminal Procedure, Code of Execution of Criminal Sentences and Code of Civil Procedure, as well as of the Criminal Fiscal Code, with a view to accelerating and simplifying procedures; 2.             noted with interest the amendments to the Code of Civil Procedure, envisaged to the same end; 3.             recalled that the problem of excessive length of judicial proceedings in Poland is of a systemic nature and noted with concern that the increased influx of new criminal and civil cases has resulted in the fact that the domestic judicial backlog has not decreased considerably; 4.             invited the Polish authorities to continue carrying out their thorough reflection on a solution to this structural problem and to provide an action plan on additional  measures envisaged; 5.             decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on additional general measures and on individual measures, if need be.

- 1 case mainly concerning the lack of promptness in examining appeals against decisions to prolong detention on remand

54476/00           Pyrak, judgment of 12/02/2008, final on 12/05/2008

The case concerns the excessive length of the applicant’s detention 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 (2 months and 2 weeks; violation of Article 5§4).

Individual measures: The applicant has been released. The European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures:

            1) Violation of Article 5§3: This aspect of the case presents similarities to that of Trzaska (25792/94, Section 4.2).

            2) Violation of Article 5§4: This aspect of the case presents similarities to that of Baranowski Piotr (39742/05, Section 6.1). 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 this case 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) and disseminated to judges of criminal courts and prosecutors.

• Assessment: no further general measure is necessary.

- 47 cases against Portugal

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

The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8).

After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have a right of access. A year later, in 1998, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed in 2003 with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant.

Pointing out that the applicant had last seen his daughter on 04/10/1997, when she had been just two years old, the European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which was still valid, had been automatic and stereotyped and that those authorities had failed to take practical and concrete steps to resolve the issue. The European Court noted in particular that neither the prosecution nor the competent court had tried to bring the parties together or actively involve the social services in finding a solution to the problem.

Individual measures: In February 2007, the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child had been identified. At a meeting held before a judge on 20/06/2007, it was agreed between the parties that, before a new regime on the right of access could be determined, the child, as well as both the parents, had to undergo psychological examinations, which took place beginning 2008. According to the Portuguese authorities, following these examinations, two meetings took place before the judge (06/05 and 13/05/2008) between the parents accompanied by their counsel. During the second meeting the child was heard and refused to meet her father. It was agreed that a meeting between father and daughter would be organised at the social security offices in presence of social advisers, to enable the father to establish contact with his daughter. The meeting did not take place as the father was not summoned in time.

Following an evaluation report drawn up by the Social Security Institute, the judge decided on 15/07/2008 that preparatory psychological support was a pre-condition for establishing contacts between the child and her father. In a new report of 24/07/2008, Social Security proposed to avoid any contact between them before the psychological support had started. On 12/09/2008, the judge ordered the Social Security Institute to provide precise information on how the psychotherapist’s support was to be put in place.

As no answer was provided, the order was reiterated at the beginning of November 2008. At the meeting held on 19/02/2009 between the judge, the parents and their counsels and a social adviser, it was confirmed that the parents did not oppose the psychotherapeutic intervention. Following the judge’s order, the social adviser made an approach to two institutions and found two psychotherapists willing to carry out the “systemic psychotherapeutic intervention”. On 11/03/2009, it was decided to inform the parents and to have a new meeting so that they could choose one of the two psychotherapists and agree on the starting date of the therapy. Up to now, the psychotherapist’s support has not been provided.

• Further information provided by the Portuguese authorities (05/08/09 and 17/09/09): Despite the efforts and the steps taken by the competent division of the Social Security Institute, the fact that up to now it has not been possible to proceed with such a systemic psychotherapeutic process with the child and the parents, is due to reasons imputable to the two parties in this case. In any case, these are voluntary procedures, in which the parties are accountable for the execution of decisions and for taking the necessary procedural steps, in the event a situation of non-respect of the means exercising parental authority is disputed.  

• Further information provided by the applicant’s counsel (17/08/2009 et 28/08/09): according to the attorney, the applicant has still not been able to see his daughter because the mother refuses to co-operate with the court and the court is not able to force her to do so. At the same time the applicant, bearing in mind the well- being of his daughter, is not willing to use coercive measures which he thinks would be detrimental to the development of his relationship with his child.

• Bilateral contacts between the Secretariat and the authorities, in order to evaluate the necessity of further measures, are under way.

General measures:

            1) Publication and dissemination: A copy of the judgment was sent to all national authorities concerned, including to the Instituto de Reinserção Social (the Institute of Social Reintegration, which carries out social investigations ordered in the framework of court proceedings on matters related to parental rights). The judgment was also translated and published on the Internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Institute of Social Reintegration were requested to adopt appropriate measures in order to prevent new, similar violations in the future.

            2) Training: The Portuguese authorities also indicated that the Institute for Social Security has been vested with competences concerning parental authority. The Portuguese authorities have indicated that the Institute is carrying out activities addressed to all professionals co-operating with courts in civil tutelary matters aimed at improving their intervention in the field. Moreover, in 2008, 24 training activities on Mediation and conflict management and the Evaluation of parental competences have been carried out.

In 2009, the Institute for Social Security carried out 13 training activities on the new law 61/2008 and until the end of 2009 other 13 training activities concerning “Interview Techniques in cases of parental conflict“, as well as two workshops on “positive parental relations” are scheduled.

            3) Legislative measures: Law No. 61/2008 on divorce (entered into force on 01/12/2008) modified the Civil and the Criminal Codes. Article 1906 of the Civil Code on the exercise of parental authority provides inter alia that the tribunal will decide on the right of access on the basis of the best interest of the child. According to the new Article 1776-A, an agreement on the exercise of parental authority is submitted to the prosecutor at the first-instance tribunal, who shall decide within 30 days.

Articles 249 (Abduction of minors) and 250 (Maintenance obligation) of the Criminal Code have also been amended. Article 249 provides that child abduction or reiterated and unjustified refusal to abide by agreements regulating the exercise of parental authority is punishable by up to two years’ imprisonment or by a up to 240 day-fine. As regards failure to comply with the agreement, the penalty is softened when the parent’s behaviour is motivated by the wish to respect the child’s will, when the child is over 12 years of age.

However, it should be noted that the new law No. 61/2008 does not apply to cases (like this one) already pending when it entered into force (1/12/08).

• Assessment: The legislation recently passed is to be welcomed since it reinforces the existing means in Portuguese law to ensure compliance with the obligations resulting from Article 8 of the Convention. The training measures adopted are to be welcomed as well, in the light of their importance to ensuring execution of judicial decisions on means of exercise of parental authority. The evaluation of the need for further measures is under way.

39005/04           Santos Pinto, judgment of 20/05/2008, final on 20/08/2008

This case concerns the breach of the applicant’s right of access to a court due to the dismissal, for lack of legal representation, of an appeal he lodged in the context expropriation proceedings in respect of part of his land, even though a similar appeal in respect of another part of the same plot had been accepted (violation of Article 6§1).

The European Court underlined that the rules on the admissibility criteria for appeals must be sufficiently coherent and clear. It considered that the dismissal of the applicant’s appeal had been contrary to the principle of judicial certainty and had amounted to a denial of justice, given the difference in the assessment of identical situations by the same court. In one of the cases, on 29/04/2004, the Évora appeal court dismissed his appeal finding that there was no obligation to warn the appellant of the consequences of non-representation by counsel. In the other, the same court in a different composition, on 1/07/2004, found that the notification addressed to the applicant for the purposes of instructing counsel should have included information on the consequences of non-representation. As this had not been the case, it ordered that the proceedings be pursued even though the applicant was not represented.

The European Court further noted that, under Article 678 of the Code of civil procedure on the admissibility of appeals, the applicant was prevented from submitting the diverging case-law to the Supreme Court on the ground of the limited value of the matter at issue.

Individual measures: The European Court made no award on just satisfaction in the absence of a claim by the applicant.

Decree law No. 303/2007 amending the Code of civil procedure allows re-examination of final domestic judgments following a judgment of the European Court finding a violation (Article 771 (f)). Under Article 772 § 2(b), re‑examination may be requested within 60 days following the date when the Court’s judgment became final and no more than 5 years must have elapsed from the date of the final domestic decision.

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

General measures: Article 33 of the Code of Civil Procedure reads: “If a party is not represented by counsel when such representation is compulsory, the court ex officio or upon request of the opposing party, orders the party to seek counsel within a specific time-limit, failing which the appeal will be dismissed, discontinued, or the party’s defence will become ineffective”. According to the Supreme Administrative Court’s judgment of 3/11/1988 (published in Boletim do Ministério da Justiça, No. 369, p. 609) and concurring case-law of the Porto Court of appeal (judgments of 13/02/1996 and 29/04/2003), the notification as provided in the above provision is only effective if it indicates the consequences of the lack of representation.

On the other hand other judgments of the Lisbon (28/01/1992 and 3/06/1993) and even Porto (21/02/1990) courts of appeal held that the indication of the consequences was not a due formality.

• Information is awaited on measures taken or envisaged to ensure consistent interpretation of Article 33 of the Code of Civil procedure, as well as on the publication of the European Court’s judgment and its dissemination to the competent authorities, in particular first-instance and appeal courts. 

6830/05            Pijevschi, judgment of 13/11/2008, final on 13/02/2009

This case concerns the breach of the applicant’s right of access to a court of appeal for a review of the correctness of his conviction, due to the appeal court’s particularly strict interpretation of a procedural rule (violation of Article 6§1).

In 2005, the Évora Court of Appeal declared the appeal inadmissible as being out of time as a result of the different interpretation of the procedural rules on time-limits for filing submissions, whereas the applicant had followed the time-limit the Court of First Instance had fixed.

The European Court found that the applicant could not be accused of having failed to act with the necessary care and diligence or of having committed an error for which he was to blame, especially as he had followed the instructions given by the Court of First Instance. The Court considered that the appellate court’s particularly strict interpretation of procedural rules, conflicting with the interpretation given by the Court of First Instance, was incompatible with the principle of legal certainty and had deprived the applicant of the right of access to the Court of Appeal (§ 41-42).

Individual measures: The applicant was sentenced in 2004 to six years and nine months’ imprisonment and excluded from the national territory for 15 years. He was released on parole in February 2006 and then expelled on 3 March 2006.

Act No. 48/2007 amending the Code of Criminal Procedure permits the re-examination of domestic judgments having the status of res judicata, following a judgment of the European Court finding a violation (Article 449). The government indicates that, under Article 450, the public prosecutor, as well as others including the person convicted, is entitled to ask for re-examination without any time-limit.

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

General measures: Article 411 of the Code of Criminal Procedure provided at the material time that appeals against first-instance courts had to be filed within fifteen days as from the notification of the sentence. However, in cases where the transcript of the hearing was necessary, certain courts provided a supplementary delay of ten days as from the date when the transcript was put at the disposal of the applicant. Following discrepancies in the case-law, in its judgment No. 44/2004 the Constitutional Court decided, in a case similar to that at issue, that the interpretation according to which Article 411 of the Code of Criminal Procedure prevented the admissibility of an appeal submitted within the time-limit previously fixed by the Court of First Instance, would infringe the right to defence as sanctioned in Article 32 of the Constitution. The Supreme Court has also already annulled a decision similar to the judgment of the Évora Court of Appeal at issue, considering that it breached the fairness of a trial.

The European Court made reference to the judgment of the Constitutional Court mentioned above (§43).

• Information is awaited on the publication of the European Court’s judgment and its dissemination to the competent authorities, in particular first-instancecourts and courts of appeal. Information on any other measure envisaged by authorities will be appreciated.  

40225/04           Feliciano Bichão, judgment of 20/11/2007, final on 20/02/2008

This case concerns the violation of the applicant's right to a fair trial due to the fact that memoranda prepared by the public prosecutor in criminal proceedings, in which the applicant had the status of assistente, were disclosed to him neither before the appellate court nor before the Constitutional Court (violation of Article 6§1). The applicant did not receive communication either of the memoranda of the public prosecutor filed in 2003 before the appeal court, or of the memoranda filed in 2004 before the Constitutional Court. In the proceedings at issue, his request for investigations against the mayor of a municipality for usurpation of property was rejected.

The European Court found that the right to a fair trial had been breached since the memoranda should have been communicated to the applicant, first because of his right to be informed and to comment on all documents submitted in the proceedings and, secondly due to the fact that these documents were evidently aimed at influencing the attitude of the judges in charge of examining the case.

Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. The European Court found no causal relationship between the violation and the pecuniary damages claimed by the applicant and it rejected the applicant’s claim for pecuniary damages. 

The criminal proceedings at issue concerned a dispute between the applicant and the mayor of a municipality concerning the ownership of a path alongside the applicant’s land. As regards the weight that the memoranda of the public prosecutor could have had on the outcome of the proceedings at issue, it should be noted that the investigating judge had rejected the applicant’s request for investigations, considering that there was no possibility of a criminal conviction in this case, due to the lack of objective elements of offence. The decision of the investigative judge was confirmed in 2003 by the appeal court.

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

General measures:

According to Article 413§2 of the Code of Criminal Procedure (as in force at the material time), the memoranda in reply of the parties affected by the appeals must be transmitted to them. The failure to comply with this provision in the present case appears to constitute an isolated incident, as was also acknowledged by the government (§35 of the judgment).

• Assessment: no further specific measure therefore seems necessary to prevent future violations due to the non-respect of this provision.

The Court's judgment is available on the Internet site of the Cabinet of Documentation and Comparative Law (www.gddc.pt), which comes under the Prosecutor General of the Republic.

However, as regards memoranda submitted before the Constitutional Court, the Law on the organisation, functioning and proceedings of the Constitutional Court (Law No. 28/82) provides no obligation to disclose public prosecutors’ memoranda or opinions to individual applicants (§§ 24 and 35 of the judgment).

• Information is awaited on measures taken or envisaged, including legislative measures, to ensure that individual are also guaranteed a fair trial before the Constitutional Court as regards disclosure of documents relevant to the final decision.

                        - 2 cases concerning the right to effective defence[64]

10418/03           Panasenko, judgment of 22/07/2008, final on 22/10/2008

35228/03           Bogumil, judgment of 07/10/2008, final on 06/04/2009

- 15 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

24668/05          Companhia Agrícola Cortes e Valbom S.A., judgment of 30/09/2008, final on 30/12/2008

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

30844/05           De Avellar Cordeiro Zagallo, judgment of 13/01/2009, final on 13/04/2009

25025/05           De Sousa Carvalho Seabra, judgment of 16/12/2008, final on 16/03/2009

41453/02           Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., judgment of 10/07/2007, final on 31/03/2008

31720/05           Kindler de Barahona, judgment of 10/02/2009, final on 10/05/2009

44386/05           Melo e Faro Maldonado Passanha and others, judgment of 24/02/2009, final on 24/05/2009

35254/05           Simões Alves Noronha, judgment of 03/03/2009, final on 03/06/2009

31677/04           Sociedade Agrícola Herdade da Palma S.A., judgment of 10/07/2007, final on 12/11/2007

17199/05+        Sociedade Agrícola da Herdade das Várzeas, Lda and 22 other cases “Agrarian reform”, judgment of 23/09/2008, final on 23/12/2008

30808/05          Vasconcelos Do Couto and 23 other cases “Agrarian reform”, judgment of 03/03/2009, final on 03/06/2009

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 (29813/96, 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.

                        - 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 considered that it is advisable for 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. 

• Development: at its 1059th meeting (June 2009), the Committee of Ministers encouraged the Portuguese authorities to continue their efforts to introduce the remedy for harmonisation of the domestic courts’ case- law as soon as possible. In addition, it took note of the information provided by the authorities on the publication and dissemination of the judgment of the European Court, in particular amongst national courts (see below). The Committee considered that, while waiting for the introduction of the harmonisation remedy, these measures are appropriate insofar as they may encourage the direct application by the national authorities of the case-law of the European Court (see the decision adopted at that meeting).

• Possible further information would be useful on the current practice of courts and its evolution. 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.

The judgment of the European Court has been published on the website of the Center for Research and Comparative Law of the Office of the Prosecutor Attorney of the State (“Procuradoria Geral da Repùblica”), in French with a translation into Portuguese. Furthermore, the judgment, translated into Portuguese with an explanatory note, has also been sent to the Prosecutor Attorney of the State, to the Judicial Service Commission and to the Administrative and Fiscal Tribunals Commission with a view to its dissemination to the competent authorities.

• Confirmation of dissemination of the European Court’s judgment to the competent authorities and in particular to the national jurisdictions is awaited. Information on its inclusion in future awareness-raising activities on the case-law of the European Court would be useful.

                       - 25 cases of length of judicial proceedings

                       Interim Resolution CM/ResDH(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 the proceedings in three cases were still pending before domestic courts and invited the authorities to take action to bring them to an end as soon as possible. The proceedings in two of these cases (Garcia da Silva and Sociedade Agricola do Peral) were closed in 2008. The proceedings in the third case (Oliveira Modesto) are still pending before the domestic courts (after 21 years and 9 months).

• Information is awaited on the state of domestic proceedings in the case Oliveira Modesto and on their acceleration.

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 Measures: 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[65], 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 were requested to complete the appreciation of the situation in these fields. Moreover, more precise information and appropriate statistics were also sought 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, 09/06/2009 and 19/06/2009 complementary information and statistics. This information is currently under assessment and will possibly be the subject of a new interim resolution aimed at taking stock of the measures adopted and indicating the outstanding issues (see the decision adopted at the 1059th meeting, June 2009). 

            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 (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 in this group of cases in October 2007, 1.             noted with interest the information provided by the Portuguese authorities on the measures adopted to solve the structural problem of excessive length of judicial proceedings, as well as the statistical data illustrating the evolution of the backlog and of the average length of proceedings in recent years, and encouraged them to continue their efforts in this field; 2.             noted with concern that the domestic proceedings in the Oliveira Modesto case have been pending before the national jurisdictions for almost 22 years and urged the Portuguese authorities to accelerate them as much as possible to bring them to an end as soon as possible; 3.             decided to resume consideration of this group of cases at their 1078th meeting (March 2010) (DH) in view of the adoption of an Interim Resolution prepared by the Secretariat.

- 105 cases against Romania

12338/02           Hussain, judgment of 14/02/2008, final on 14/05/2008[66]

69273/01           Galliani, judgment of 10/06/2008, final on 10/09/2008

33343/96          Pantea, judgment of 03/06/03, final on 03/09/03[67]

29761/02           Tase, judgment of 10/06/2008, final on 10/09/2008

22383/03           L.Z., judgment of 03/02/2009, final on 03/05/2009

42860/98          Notar, judgment of 20/04/04 - Friendly settlement

The case relates to allegations that the applicant (who, at the material time, was a minor), suffered mistreatment when he was arrested and during his detention in the Tg. Mures Youth Shelter in July 1996, and that there had been no effective investigation of these matters (complaints under Article 3). The applicant also complained that his detention was unlawful (complaint under Article 5§1), that he was not given an explanation of the charges against him (complaint under Article 5§2), that he had no opportunity to obtain prompt judicial review of the legality of his detention (complaint under Article 5§§3 and 4) and that he could not obtain compensation for his unlawful detention (complaint under Article 5§5). The applicant further complained of an infringement of his right of access to a court to obtain compensation for the unlawfulness of his detention or for the alleged mistreatment (complaint under Article 6§1) as well as a breach of the presumption of his innocence, in view of the fact that his identity was disclosed during a television programme which depicted him as the perpetrator of a criminal offence (complaint under Article 6§2). Finally, the applicant complained of hindrance to the exercise of his right of individual application (complaint under Article 34).

- Undertakings by the government: According to the friendly settlement reached, the Romanian government undertook to pay a sum of money covering pecuniary and non-pecuniary damage, as well as costs and also:

(1) to reform the existing legislation with a view to exempting from stamp duty civil court actions claiming damages for ill-treatment contrary to Article 3,

(2) to inform the police of the appropriate conduct to be observed to ensure respect for the presumption of innocence, and

(3) to pursue its efforts in the area of protecting children in difficulty.

Individual measures: The amount agreed in the friendly settlement has been paid to the applicant.

• Assessment: No further individual measure is required.

General measures:

• Information provided by the Romanian authorities:

         1) Stamp duty: Following the amendment of the Law on judicial stamp duties of 1997, requests for the determination and award of civil damage for alleged treatment in breach of Articles 2 and 3 of the Convention are exempted from stamp duty. These amendments have been adopted by a government ordinance published in the Official Gazette on 28/01/2005 and were approved by Parliament in March 2005.

         2) Presumption of innocence: A draft order was prepared in 2004 by the Ministry of Public Administration and Internal Affairs, setting out in particular the rules to be followed concerning the disclosure to the media of data and information obtained by the personnel of the Ministry in the exercise of their professional duties. The draft provides in particular that the identity of persons who are being investigated, prosecuted or placed in detention on remand may not be made public.

• Further information is expected on action taken with regard to the draft order mentioned and on the timetable envisaged for its adoption. Information is also expected on measures aimed at the appropriate training of the police.

         3) Protection of children in difficulty: The legislation in force at the material time regulating the placement of minors in youth shelters has been repealed.

• Adoption of legislative acts related to child protection

a) Law No. 272/2004 of 23/06/2004 on the protection and promotion of the rights of the child;

Chapter V of the Law (Articles 80-84) relates to the protection of the child who has committed a criminal act but is not criminally liable. Thus, Article 83 prohibits the publication of any information concerning a criminal act committed by such children, including their personal data. According to Article 56 e) of the Law, those children are beneficiaries of “special child protection measures”, including placement, emergency placement and specialised supervision.

b) Governmental decree No. 1432/2004 of 23/09/2004 on the National Authority for the Protection of Children’s Rights (subsequently modified by several government decisions);

c) Governmental decree No. 1434/2004 of 23/09/2004 on the general department of social assistance and protection of children;

d) Governmental decree No. 1439/2004 of 24/09/2004 on special services for children who have committed a criminal offence but are not liable under criminal law;

e) Decision of the National Audiovisual Council No. 187 of 03/04/2006 concerning the regulation of the content of audiovisual programme services. The decision inter alia prohibits the broadcasting of any information on children under 14 which could lead to their identification when they are accused of committing offences (Article 4). Information on children over 14 is permissible under the conditions listed in Article 6. In addition, Article 7 contains the obligation to give information about the person's rights before filming or recording.

• Information measures: The National Authority for the Protection of Children’s Rights started an education campaign on children’s rights. The first part of this campaign (“Children’s rights are law”) lasted from October 2004 to March 2006. The second part aimed at the organisation of conferences to present the provisions of Law 272/2004. In 2007, the National Strategy in the field of protection of children’s rights for the period 2008-2013 was drawn up, providing a series of measures related to juvenile delinquency. In 2008, the National Authority for the Protection of Children’s Rights intended to draw up a guide for the interrogation of children in difficulties.

• Further information is expected on the legislation governing the placement of minors in youth shelters as well as summary of the relevant legislative provisions currently in force and the necessity of any improvements in this respect.

42250/02           Calmanovici, judgment of 01/07/2008, final on 01/10/2008, rectified on 10/02/2009[68]

3584/02            Tarău, judgment of 24/02/2009, final on 24/05/2009

- 3 cases concerning the lack of judicial guarantees in the context of detention on remand[69]

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

74785/01           Năstase-Silivestru, judgment of 04/10/2007, final on 04/01/2008

This case concerns the fact that the applicant, whose detention was ordered by a prosecutor on 24/11/2000, was not brought promptly before a judge but only after 18 days (violation of Article 5§3).

The case also concerns a violation of the applicant’s right to respect for her correspondence in that the authorities withheld her correspondence with her family at least for a certain time during her detention (violation of Article 8). The European Court noted that Instruction No. 901 of 10/05/1999 of the Ministry of Interior, the basis for withholding the applicant’s correspondence, was not available to the persons concerned therefore the interference at issue could not be considered as “foreseen by law” (§53).

Individual measures: The applicant was released on 7/05/2001. The European Court awarded her just satisfaction in respect of non-pecuniary damage sustained.

• Assessment: No further measure appears necessary.

General measures:

1) Violation of Article 5§3: The case presents similarities to that of Pantea (33343/96, Section 4.2).

2) Violation of Article 8: It should be noted that the issue of detainees’ correspondence with public institutions, judicial organs or international organisations has already been considered in the context of the Cotleţ case (38565/97) (Section 6.2). It may be recalled that it is forbidden to open or withhold correspondence with lawyers, non-governmental organisations active in the field of human rights and international courts or organisations whose competence is recognised by the Romanian authorities.

Subsequently to the facts presented in the present judgment, Law No. 275 of 4/06/2006 on serving sentences and compliance with measures ordered by judicial bodies during criminal trial was adopted (Law 275/2006). Under Article 82§5 of the law 275/2006, the provisions related to rights and obligations of detainees should be also applied to detainees on remand. Article 45 of Law 275/2006 guarantees the right to correspondence, providing the confidential character of detainees’ correspondence and that it can be opened or withheld only under conditions provided by law. Thus correspondence may be opened in the presence of the person concerned, without being read by the authorities, in order to prevent smuggling of drugs, toxic substances, explosives and other objects whose possession is prohibited. Law 275/2006 also provides a possibility, on the basis of a written and motivated order of a judge delegated for the execution of sentences, of opening or withholding correspondence in case of motivated indications of the possible commission of an offence. The detainee shall be immediately informed in writing about this fact and the correspondence is deposited in a special file held by the prison administration.

Under Article 46 of Law 275/2006 correspondence addressed to detainees should be transmitted immediately to the addressee.

Law 275/2006 also provides procedural guarantees for the implementation of the right to correspondence, namely a possibility of a judicial complaint.

It should be also noted that all judgments of the European Court against Romania are regularly published in the Official Journal. The content of the present judgment was sent to the Superior Council of Magistracy, to the National Administration of Penitentiaries and to the Ministry of Interior and Administrative Reform with a view to bringing it to the attention of all domestic courts and prosecutors’ offices and to other subordinated units, with the recommendation that it is included for consideration in the activities related to continued education of persons concerned.

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

71525/01           Popescu Dumitru No. 2, judgment of 26/04/2007, final on 26/07/2007

The case concerns the absence of judicial guarantees related to interception of the applicant's telephone conversations under Law No. 51/1991 on national security (violation of Article 8).

The European Court, noting that under Article 13 of this law telephone conversations unlimited as to time could be intercepted by simple authorisation of the prosecutor, considered that prosecutors could exercise considerable discretion with regard to serious interference with private life considering that their did not fulfil the requirement of independence from the executive. Furthermore, at the material time, permission to carry out telephone interception was not subject to review, either before or after the fact, by an independent, impartial judicial authority. The European Court also observed that Romanian law provided no safeguards concerning the need to keep recordings of telephone calls intact and in their entirety, or their destruction. Lastly, the European Court noted that the Romanian intelligence service was the only authority empowered to certify that the recordings were genuine and reliable but that doubts existed with regard to its independence and impartiality.

Individual measures: The European Court noted that the finding of a violation of Article 8 constituted sufficient just satisfaction in respect of the non-pecuniary damage sustained.

• Information is expected as to whether the recordings in question have been destroyed.

General measures: The European Court that the Code of Criminal Procedure now contains many safeguards concerning the interception and transcribing of telephone calls, the storage of relevant information and the destruction of information which is not relevant. Thus, Laws Nos. 281/2003 and 356/2006 modifying the Code of Criminal Procedure require a reasoned judicial authorisation for operations of interception and recording of telephone or other electronic communications. It also seems that responsibility for determining the reliability of recordings has now to the National Institute of Forensic Expertise, which acts under the authority of the Ministry of Justice and whose experts, as “public officials” are completely independent from the authorities responsible for intercepting or transcribing communications (§§82-83).

Nevertheless, the European Court noted that the public prosecutor apparently still had powers to order surveillance measures under Article 13 of Law No. 51/1991 in the event of a presumed threat to national security. This assumption was attested to by a recent decision of the Romanian Constitutional Court (published in the Official Journal of 16/01/2007) according to which the application of Law 51/1991 was justified by its “special character”, even after the entry into force of the reforms of the Code of Criminal Procedure (§84).

The European Court’s judgment has been translated and published in the Official Journal and is also available on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). The judgment was also sent to the Superior Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503), with a view to its dissemination to all domestic courts and prosecutors' offices, with the recommendation that it is discussed amongst the activities related to continued training of magistrates.

 • Information is expected on the current legal framework regulating the issue of telephone interception and measures taken or envisaged to avoid any future violations.

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. Thus, the draft law provides that, where there is a risk or a threat to national security, the intelligence and protection authorities may restrict the exercise of fundamental rights and freedoms but must seek a judicial authorisation to carry out information-gathering activities. Such requests are examined by a judge of the High court of Cassation and Justice and, if approved, must mention among other things the category of information which may be obtained and the duration of the validity of the authorisation (Articles 39-41). Anyone who considers that their rights have been violated by the issue and the application of such an authorisation, or by use of methods and specific means of the intelligence activity may, aside from the exercise of her right to access to justice, refer to the ombudsman or to Parliament for the exercise of parliamentary control over intelligence and protection authorities. The draft law 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). It seems, however, that the draft law contains no provision concerning the age of information that can be held by the authorities.

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.

• Further information is awaited on 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 71 provides the  possibility for anyonewho considers that their rights have been violated by acts of the intelligence authorities through failure to protect personal data or storage of data that is incomplete, incorrect or interpreted without the observation of legal requirements, to seise the domestic courts in order to annul abusive or illegal administrative acts, to grant access to pertinent information, to carry out any necessary modifications and corrections, to erasure of data and also to provide redress 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 the decision of the Constitutional Court of 31/01/2008, found Law No. 187/1999 on access to personal files and disclosure of the Securitate as political police to be unconstitutional. Following this decision, the government adopted a new law, Emergency Ordinance No. 24/2008, regulating access to personal files. This ordinance gives interested persons the possibility to consult the files concerning them compiled by the former Securitate and to challenge before a court any findings concerning collaboration with it. In this context, numerous examples of requests lodged with the courts have been provided. Most of these examples concern the annulment of decisions adopted by the National council for the study of Securitate archives (NCSSA) by virtue of law No. 187/1999, by which the NCSSA had established that the applicants had been collaborators. Examples of requests lodged with the courts to gain access to personal files have also been provided. Given the interest that these requests represent, the authorities were invited to provide examples of case-law concerning Emergency Ordinance no. 24/2008.

• Examples of case-law concerning Emergency Ordinance No. 24/2008 are expected.

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.

23468/02           Sissanis, judgment of 25/01/2007, final on 25/04/2007

The case concerns the violation of the freedom of movement of the applicant, a Greek national, due to a stamp placed in his passport in the course of criminal proceedings against him which forbade him to leave Romania between 1998 and 2004 (violation of Article 2 of Protocol No 4).

The European Court found that this restriction was not provided by law, in that Article 27 of Law 25/1969, upon which it was based, was vague in that it neither identified the authority empowered to impose such a measure nor defined with sufficient precisions the conditions for imposing measures prohibiting someone from leaving the country. The European Court also considered that the procedure for applying bans on leaving the country did not provide sufficient safeguards against abuse on the part of the authorities, since Law No. 25/1969 provided no review procedure, either at the time of imposition or afterwards (§71).

Finally, Article 27 of Law No. 25/1969 had been declared unconstitutional on 11/04/2001, thus the order forbidding the applicant to leave the country had been in breach of Romanian law at least from that date onwards.

Individual measures: On 10/06/2004 the stamp in question was removed from the applicant's passport. In addition, the European Court awarded him just satisfaction in respect of non-pecuniary damage.

• Evaluation: It seems that no other measures are necessary.

General measures: According to the European Court, Law No. 25/1969 was abrogated by Law No. 123 of 2/04/2001. Subsequently, Emergency Ordinance No. 194 on the status of foreigners of 12/12/2002 (published in Official Journal of 27/12/2002 and approved by Law No. 357/2003 of 11/07/2003) was adopted.

• Information provided by the Romanian authorities: Emergency Ordinance No. 194/2002 on the status of foreigners was amended on several occasions and republished in the Official Journal No. 421 on 5/06/2008. Other provisions related to the imposition of preventive measures forbidding an individual to leave the country are also contained in the Code of Criminal Procedure, as amended by Law No. 281 of 24/06/2003 and Law No. 356 of 21/07/2006.

Article 15 of Emergency Ordinance No. 194/2002, taken together with Articles 145 and 145¹ of the Code of Criminal Procedure, provides that the measure of interdiction of leaving Romanian territory by foreigners shall be imposed by the competent body within the Ministry of Interior and Administrative Reform on the basis of a written request made by a prosecutor or a court. Article 15 of Emergency Ordinance No. 194/2002 further provides that this measure may be applied under two circumstances: either where a foreigner is charged or accused in criminal proceedings and the magistrate orders the measure of interdiction of leaving the town or the country or he was sentenced by a final court decision and has to serve a prison sentence. In all cases the reasons that have led to the decision shall be specified and, if appropriate, accompanied by supporting documents.

According to Article 145, taken together with Article 145¹ of the Code of Criminal Procedure, the interdiction on leaving the country shall not exceed 30 days. It may be prolonged during criminal proceedings on a basis of a motivated decision for a period not longer than 30 days.

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

The judgment of the European Court has been sent to the Superior Council of Magistracy with a view to bringing it to the attention of all the domestic courts and prosecutor offices as well as to the Ministry of Internal Affaires and Administrative Reform to inform its subordinated authorities. It should also be published in the Official Journal.

10443/03           Iosif and others, judgment of 20/12/2007, final on 20/03/2008

This case concerns the violation of the applicants' right of access to a court due to the dismissal of their action by the domestic courts on the grounds of their failure to pay a security deposit of almost 134 000 euros required to bring the action (violation of Article 6§1).

The applicants’ action related to the termination of the mortgage on their house, took out to guarantee a loan granted to a third party, and to the execution of the enforcement proceedings brought by the bank for non-payment of the guarantees. By a decision of 9/04/2002, confirmed subsequently by the Supreme Court, the Court of Appeal of Bucharest dismissed the applicants’ action due to the non-payment of the fixed security deposit representing 20% of the total amount of the secured loan.

The European Court noted that the obligation of paying an extremely high deposit in order to bring an action, required by Article 25§1 of the Government Emergency Ordinance no. 51/1998 on the recovery of banking assets, deprived the applicants of the possibility of examining their case on merit (§60 of the judgment).

Individual measures: The European Court considered that when it finds that an applicant has not had access to a court established by law the most appropriate form of redress would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (§99 of the judgment). The Court noted that Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings if a violation of the Convention was found. In addition, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Assessment: No other individual measure appears to be necessary.

General measures: Following the legislative reforms, Article 25§1 of the Government emergency ordinance no. 51/1998 became Article 83§1. The European Court noted that the Constitutional Court, by decision no. 39 of 29/01/2004, found this provision to be unconstitutional.

• Information is expected on the current legal framework concerning the payment of securities in order to bring similar actions.

28183/03           Anghel, judgment of 04/10/2007, final on 31/03/2008

This case concerns the inequity of proceedings relating to a complaint lodged by the applicant against an administrative decision of 2002 fining him 59 euros for having uttered insults to a civil servant (violation of Article 6§1).

Although domestic law did not consider these proceedings as “criminal”, the offences in question having been decriminalised, the European Court considered that it could be assimilated to a criminal procedure as referred to by Article 6§1 of the Convention and, as a result it had to comply with the fundamental guarantees applicable in criminal proceedings. Yet, in this particular case, the courts hearing the case expected the applicant to prove his innocence and considered that the prosecution witnesses were credible without explaining their reasoning and without allowing the applicant to confront these witnesses.

The European Court noted the sui generis plan adopted by the Romanian legislator relating to fines and in particular the applicability mutatis mutandis of the principles of civil proceedings. However, it noted that the relevant rules did not expressly provide guarantees similar those found in criminal proceedings, such as the presumption of innocence. The Court noted that, although states were allowed to decriminalise certain offences, their perpetrators should not find themselves in a less favourable situation simply because they are subjected to legal proceedings other than criminal proceedings (§67 of the judgment).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The domestic courts suspended the execution proceedings related to the payment of the fine pending the judgment of the European Court in this case.

• Information is expected on the current situation of the applicant, in particular whether he still suffers any negative consequences of the sanction imposed and whether he may possibly request reopening of the proceedings at issue.

General measures: It must be noted that to apply the criminal part of Article 6§1 of the Convention, the European Court took into consideration the fact that at the time, if the applicant refused to pay the fine, he could be sentenced to 15 days’ to three months’ imprisonment. Following the 2003 reform, imprisonment for fines was removed from the list of sanctions that could be imposed on offenders (emergency ordinance No. 108/2003 of 26/10/2003). The offences relating to the present case will, from now on, be liable to a fine of up to 300 Euros (law on the repression of acts breaching social life and public order, modified in 2004). It remains that, in view of the criteria that may be found in the European Court’s case-law, in particular the deterrent and punitive character of the possible sanction, proceedings may always be assimilated to “criminal“ proceedings within the meaning of Article 6§1 of the Convention (see §53 of the case of Öztürk against Germany, judgment of 21/02/1984). 

• The Romanian authorities are invited to present an action plan for the adoption of measures necessary to ensure that proceedings relating to contestation of fines respect the guarantees applicable to criminal proceedings, especially the presumption of innocence.

77217/01           Cleja and Mihalcea, judgment of 08/02/2007, final on 08/05/2007

This case concerns a violation of the applicants' right to the peaceful enjoyment of their possessions in that, for a protracted period, they were prevented from using their property due to domestic courts' refusal to order the eviction of the tenants from their flat (violation of Article 1 of Protocol No. 1).

In March 1994, the Romanian courts ordered the return to the applicants of the flat nationalised during the communist period. In 1999, the applicants brought an action for eviction of the former state tenants conditional on an exchange of flats on the basis of Articles 23-25 of the Emergency Government Order No. 40/1999 on the protection of tenants and the fixing of rents for residential accommodation (“E.G.O. No. 40/1999”), submitting a certified declaration of a third party that she would rent another flat to the tenants. In December 2002, the Supreme Court of Justice rejected the action for eviction finding that the applicants' request did not fulfil the conditions laid down in Article 23§3 of E.G.O. No. 40/1999 since it was not possible to oblige a third party to conclude a lease with the tenants, a simple declaration not being considered as a sufficient guarantee. Furthermore, the flat proposed by the applicants to the tenants was found not to respect the minimum requirements laid down in Annex No. 1 to Law No. 114/1996, to which Article 23§2 of the E.G.O. No. 40/1999 referred since its modification by Law No. 241/2001 (§18).

The European Court, noting the lack of a formal procedure under Article 23§3 of E.G.O. No. 40/1999 and the fact that the applicants submitted a certified declaration, found that the interpretation and the application of Article 23§3 by the courts could not be considered as being foreseeable and ensuring a fair balance between the interests at issue. It also noted that the modified Article 23§2 led to a disproportionate protection of the interests of the tenants to the detriment of the owners,

Individual measures: The applicants recovered their flat in 2004. In addition, the European Court awarded them jointly just satisfaction in respect of both pecuniary and non-pecuniary damage.

• Assessment: it seems that no further measure is necessary.

General measures: The judgment of the European Court was sent to the Ministry of Justice and to the Superior Council of Magistracy with a view to bringing it to the attention of all the domestic courts. It should also be published in the Official Journal.

• Information is expected on current legislation and practice regulating the issue of the eviction of former state tenants conditional on an exchange of flats and measures taken or envisaged in order to avoid any future violations.

21740/02           Bock and Palade, judgments of 15/02/2007, final on 15/05/2007 and of 21/02/2008, final on 21/05/2008

The case concerns a violation of the applicants' right to the peaceful enjoyment of their property due to a final decision of the Supreme Court in 2001 conferring part of a building and the use of the adjoining land, both belonging to the applicants, upon the local authority. This decision was taken pursuant to the jurisprudential principle of a “right acquired in rem” which, in certain circumstances, makes it possible to assume ownership of buildings built on someone else's land (violation of Article 1 of Protocol No. 1).

In fact, the building, which had belonged to the applicants' parents and which was composed of 18 flats and the adjoining land were nationalised in 1950. Partially destroyed during the second world war, it was rebuilt by a state agency and transferred to the town council which, however, did not have its title recorded in the Land Register. In 1994 the applicants, as joint heirs, had their title to the property entered in the Land Register and began to pay property tax on it.

The European Court considered that the applicants had a possession, inherited from their parents, and that the interference in their right to it was without legal basis in domestic law: the Supreme Court's judgment had found that the town council had acquired a right in rem to the buildings on the applicant's land on account of a “factual situation neither desired by nor known to them” which had given rise to an “apparently legal state of affairs”. However, according to Romanian case-law, the simple fact of putting a building on someone else's land is not enough to constitute an acquisition in rem in favour of the builder (§63).

Individual measures: The European Court concluded that the Romanian authorities were to return to the applicants the share of 83.33% of the building and end the use of the adjacent land within three months from the date on which the judgment would become final. Failing such restitution, the Romanian authorities were to pay the applicants jointly, within the same three-month period, 750,000 EUR in respect of pecuniary damage.

• Information is expected on the current situation of the applicants, in particular whether their property has been returned or if they have received just satisfaction for pecuniary damage.

General measures:

• Information is awaited on current practice of the Supreme Court in such cases and measures taken or envisaged in order to avoid similar violations. Publication and dissemination of the European Court's judgment among relevant courts and authorities is expected, to raise awareness of the Convention's requirements as they result from this case.

54062/00          Androne, judgment of 22/12/2004, final on 06/06/2005

The case concerns the infringement of the principle of legal certainty and consequently of the applicants' right to a fair trial on account of the delayed reopening of certain civil proceedings which had resulted in 1997 in a final court decision ordering the restitution to the applicant of a building which had been confiscated by the state. The revision proceedings, which were initiated in March 2000 by the General Prosecutor on the grounds that the state had not been represented at the earlier proceedings resulted, in 2002, in the annulment of the 1997 decision (violation of Article 6§1).

The case also concerns a violation of the applicants' right to enjoyment of their possessions due to the late reopening of these proceedings (violation of Article 1 of Protocol No. 1).

Individual Measures: The European Court has indicated that the return of the property at issue, as ordered by the court decision of 1997, would put the applicants as far as possible in the situation equivalent to that in which they would have been if there had been no breach of Article 1 of Protocol No. 1. Failing such restitution, the defendant state was to pay the applicants a sum of money corresponding to the value of the building, within three months from the date at which the judgment became final.

• Information provided by the Romanian authorities: The Romanian authorities have indicated that the Mayor of Bucharest ordered the restitution of the building to the applicants on 02/09/2005. Nevertheless, the applicants challenged the terms of this restitution, complaining that the Mayor's decision, delivered on the basis of Law 10/2001, required them to conclude a five-year lease with the sitting tenants in the building. They have therefore refused to accept the material restitution of the building.

In reply, the Romanian authorities have stressed that prior to the violation of the Convention, the applicants were in a similar situation. In fact, the domestic law in force at the relevant time (Law 17/1994) had extended until 1999 the period during which the sitting tenants of nationalised properties could continue to live in their apartments by virtue of leases which they had concluded with the state, even if the buildings had meanwhile been returned to their former owners.

Subsequently, this period has been extended on several occasions. Government Order 40/1999 provided a procedure through which persons to whom buildings had been returned might conclude new leases with tenants. According to the latest information provided by the Romanian authorities, on 25/04/2006, the applicants obtained the possession of the property whereas a restoration report was drafted.

In addition, on 7/06/2006 the Bucharest Court of Appeal ordered the eviction of the tenants from the applicants' flat.

On 11/02/2008 and 21/02/2008, the authorities submitted additional information regarding this aspect.

• Bilateral contacts are under way to assess the measures already taken.

General Measures: In the context of the adoption of general measures, the Romanian authorities have indicated that they consider that the violation found by the European Court in this case was caused by the way in which the code of civil proceedings regulates the legal regime of the one-month time-limit during which revision proceedings may be lodged.

Although this issue is relevant to the execution of this judgment, it seems that the violation found by the European Court in this case might also require additional measures to prevent new, similar violations.

Thus, according to the Committee of Ministers’ position it should no longer be possible for public prosecutors to question the final character of court judgments in civil cases (see Interim Resolution ResDH(2004)14 of 11/02/2004, concerning the execution of the judgment delivered by the European Court on 25/07/2002 in the case of Sovtransavto Holding against Ukraine). Moreover, as regards the possibility provided by the Romanian Code of Civil Procedure to request the revision of final court decisions if the interests of the state or of other public-law bodies were not represented or were represented in bad faith, the Secretariat raised doubts as to its compatibility with the case-law of the European Court, according to which final judgments delivered by courts should not be reviewed unless this is made necessary by “circumstances of a substantial and compelling character” (see case of Ryabykh against Russia, judgment of 24/07/2003, §52).

The Romanian authorities expressed their intention to take into account the modification resulting from this case, in particular with respect to the possibility to challenge the final courts' decisions by public prosecutor, in a working group for the amendment of the Romanian Code of Civil Procedure established by the Ministry of Justice. It seems that the draft law limits the prosecutors’ possibility to challenge the judgments only to cases in which they were parties. There are also other limits to the prosecutors’ powers provided by this draft law.

• Additional clarifications are expected on the progress of this working group and on the provisions of the draft amendment to the Code of Civil Procedure mentioned by the government.

The judgment of the European Court was published in the Official Journal in September 2005 and has been sent out by the Superior Council of Magistracy to courts and prosecutors' offices, together with the recommendation that all the court decisions involving the state or bodies established under public law are communicated to the prosecutor's offices.

                       - 10 cases concerning failure by domestic authorities to assist in enforcing final judicial decisions placing obligations on private third parties

34647/97          Ruianu, judgment of 17/06/03, final on 17/09/03

40067/06           Butan and Dragomir, judgment of 14/02/2008, final on 14/05/2008

6580/03            Ciocan and others, judgment of 09/12/2008, final on 09/03/2009

73706/01           Ion-Cetina and Ion, judgment of 14/02/2008, final on 14/05/2008

10395/02           Kocsis, judgment of 20/12/2007, final on 20/03/2008

67007/01           Neamţiu, judgment of 14/02/2008, final on 14/05/2008

25111/02           Negulescu Elena, judgment of 01/07/2008, final on 01/12/2008

24724/03           Oprea Constantin, judgment of 08/11/2007, final on 08/02/2008

22626/02          Schrepler, judgment of 15/03/2007, final on 15/06/2007

40162/02           Vasile, judgment of 29/04/2008, final on 29/07/2008

                        CM/Inf/DH(2007)33

These cases concern the failure of domestic authorities to assist the applicants in enforcement of final judicial decisions related to the obligation of private third parties (violation of Article 6§1 in all cases and, in addition, violation of Article 1 of Protocol No. 1 in the Ion-Cetina and Ion case).

The Ruianu case concerns the non-enforcement of two final court decisions (issued in 1993 and 1995) enjoining the defendants to demolish a building illegally constructed on the applicant's property. The European Court concluded that, in spite of the applicant's repeated requests, only one adequate attempt had been made to enforce the judgments, and this not until 2000. Following this attempt, the subsequent requests made by the applicant for the enforcement of the judgments remained unsuccessful.

The Butan and Dragomir case concerns the failure to enforce a final judicial decision given in 2005, ordering a utility company to sign a contract related the supply of drinking water to the applicants’ apartment.

The Ciocan and others case concerns the failure of domestic authorities to assist the applicants in enforcement of final judicial decisions rendered in 2000 ordering a private company to reinstate the applicants in their posts.

The Ion-Cetina and Ion and Vasile cases 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) Ciocan and others: The decisions in question have been executed. The European Court awarded the applicants just satisfaction for non-pecuniary damage.

4) Ion-Cetina and Ion: The European Court noted that the full execution of the final judicial decision of 27/03/1997 (bringing the applicants into possession of the totality of their land) would place them, as far as possible, in the same situation as before the violations. Failing to execute this decision within three months of the date on which the European Court’s judgments became final, the authorities should pay the applicants just satisfaction in respect of pecuniary damage, corresponding to the value of the land in question. In this context it should be noted that the Romanian authorities paid the compensation for the land in question.

5) Kocsis: The European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the sums awarded by domestic jurisdictions.

6) Neamţiu: The European Court recalled that the finding of a violation places an obligation on the authorities to put an end to the violation and to erase, as far as possible, its consequences. In the context of the present case this would require the execution of the final judicial decision of 21/09/1995 and 16/05/1996.

7) Negulescu: The European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the sums awarded by the decision of 7/12/2000.

8) Constantin Oprea: The European Court awarded the applicant just satisfaction in respect of pecuniary damage covering the damage resulting from the non-execution of the final judicial decision of 6/12/2000.

9) Schrepler: The decision of 1998 had still not been executed when the European Court rendered its judgment.

10) Vasile: Under Article 41 the applicant requested the enforcement of the domestic decision in question, ordering the vacation of the applicant’s land, or payment of the compensation for its value. In this context it should be noted that the European Court awarded the applicant just satisfaction in respect of all heads of damage, corresponding to the value of the land in question.

• Assessment: no further individual measure appears necessary in the Ciocan and others, Ion-Cetina and Ion, Kocsis, Negulescu, Constantin Oprea, Ruianu and Vasile cases.

• Information is expected on the current state of execution of domestic decisions in the 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)

- 15 cases concerning the continued impossibility to dispose of properties and to receive rent for their use resulting from the application of the emergency rent provisions

68479/01+        Radovici and Stănescu, judgment of 02/11/2006, final on 02/02/2007

14578/03           Anghelescu No. 2, judgment of 04/11/2008, final on 04/02/2009

77210/01           Arsenovici, judgment of 07/02/2008, final on 07/05/2008

75240/01           Burzo, judgment of 04/03/2008, final on 04/06/2008

7293/02            Dumitrescu Maria and Sorin Mugur Dumitrescu, judgment of 14/10/2008, final on 14/01/2009

29517/02           Dumitrescu No. 2, judgment of 23/09/2008, final on 23/12/2008

2736/02            Kerekeş, judgment of 13/11/2008, final on 13/02/2009

5984/02            Oancea and others, judgment of 29/07/2008, final on 29/10/2008

27086/02           Popescu and Toader, judgment of 08/03/2007, final on 08/06/2007

24171/02           Postolache, judgment of 16/12/2008, final on 16/03/2009

1266/03            Roşca Marcel, judgment of 07/10/2008, final on 06/04/2009

3864/03            Spanoche, judgment of 26/07/2007, final on 10/12/2007

75849/01           Tarik, judgment of 07/02/2008, final on 07/05/2008

1242/02            Trifu, judgment of 25/11/2008, final on 25/02/2009

18429/02           Vînătoru, judgment of 14/10/2008, final on 14/01/2009

These cases concern violations of the applicants' right to the peaceful enjoyment of their possessions in that, for a protracted period, they were prevented from controlling their property and from receiving rent from tenants (violation of Article 1 of Protocol No. 1).

Between 1992 and 2001, Romanian courts ordered the return of properties nationalised during the communist period to the applicants. Following the tenants' refusal to sign a new lease with them, the applicants applied for eviction orders. However, due to the initial failure to comply with the formalities laid down by Emergency Government Order No. 40/1999 on the protection of tenants and the fixing of rents for residential accommodation, the existing leases were extended for five years, preventing the applicants from receiving any rent.

The European Court considered that to penalise landlords who failed to comply with the formal conditions laid down in the emergency order, by imposing on them such a heavy obligation as that of keeping tenants in their property for five years without any realistic prospect of being paid any rent, had placed them under an individual and excessive burden such as to upset a fair balance between the competing interests.

Individual measures: In the Radovici and Stanescu case, the applicants recovered their properties between 2003 and 2005; in addition, the European Court awarded them jointly just satisfaction in respect of both pecuniary and non-pecuniary damage.

In the Spanoche case, the applicants sold the property in question and the European Court awarded them just satisfaction for pecuniary and non-pecuniary damage, including the lack of use of their property.

In the Burzo case, the tenants were evicted in 2005 and the European Court awarded the applicant just satisfaction in respect of all heads of damage. In the Dumitrescu No. 2, Maria Dumitrescu and Sorin Mugur Dumitrescu, Kerekeş, Postolache, Trifu and Vînătoru cases, the applicants recovered their flats before the European Court gave its judgments and the European Court awarded them just satisfaction in respect of pecuniary and non-pecuniary damage, including the lack of use of their apartments.

In the Popescu and Toader, Arsenovici , Tarik, Oancea, Anghelescu No. 2 and Marcel Roşca cases, the European Court noted that the applicants' properties were still occupied by tenants when it gave its judgments. Except for Arsenovici case, where the applicant did not submit a demand concerning just satisfaction within the time limit, the European Court awarded the applicants just satisfaction for pecuniary and non-pecuniary damage, including the lack of use of their properties.

• Assessment: no further individual measure appears necessary in the Radovici and Stanescu, Spanoche, Burzo, Dumitrescu No. 2, Maria Dumitrescu and Sorin Mugur Dumitrescu, Kerekeş, Postolache, Trifu and Vînătoru cases.

• Information is awaited on the current situation of the applicants in the Popescu and Toader, Arsenovici, Tarik, Oancea, Anghelescu No. 2 and Marcel Roşca cases.

General measures: The violation resulted from the application of Emergency Government Order No. 40/1999, which ceased to be in force on 8/04/2004. In the case of Anghelescu No. 2, the European Court noted that the domestic courts had to respond to the question of the effects of Emergency Government Order No. 40/1999 in actions for eviction orders of former state tenants lodged by the owners after 8 April 2004, date when the timeframe of five years of extension of the leases mentioned by Emergency Government Order No. 40/1999, as amended by Law no. 241/2001, ended. The analysis of the pertinent domestic case law does not lead to the conclusion that this aspect was solved in a final manner (§14 of the judgment).

• Information is awaited on the case-law of domestic courts in actions for eviction orders lodged by the owners after 08/04/2004 and on the publication and dissemination of the European Court’s judgments.

                        - 17 cases concerning unlawful submission of allowances to income tax[70]

29556/02           Driha, judgment of 21/02/2008, final on 21/05/2008

23887/03           Bălăucă, judgment of 13/01/2009, final on 13/04/2009

26852/03           Bizau, judgment of 27/01/2009, final on 27/04/2009

8027/03            Bozian, judgment of 13/01/2009, final on 13/04/2009

13480/03           Gavriş, judgment of 08/01/2009, final on 08/04/2009

26845/03           Gologus, judgment of 27/01/2009, final on 27/04/2009

26842/03           Mihai, judgment of 04/11/2008, final on 04/02/2009

26841/03           Onofrei, judgment of 13/11/2008, final on 13/02/2009

26839/03           Poppov, judgment of 13/11/2008, final on 13/02/2009

26838/03           Radu Aurel, judgment of 04/11/2008, final on 04/02/2009

26837/03           Ranete, judgment of 13/11/2008, final on 13/02/2009

26831/03           Ţară Lungă, judgment of 08/07/2008, final on 08/10/2008

1578/03            Tehleanu, judgment of 16/09/2008, final on 16/12/2008

26833/03           Vasiliu Iancu Alexandru, judgment of 04/11/2008, final on 04/02/2009

26834/03           Vasui, judgment of 04/11/2008, final on 04/02/2009

26835/03           Zaharia, judgment of 04/11/2008, final on 04/02/2009

26832/03           Zăinescu, judgment of 23/09/2008, final on 23/12/2008

- 3 cases concerning a violation of the right of access to a court through application of the doctrine of res judicata[71]

62710/00          Lungoci, judgment of 26/01/2006, final on 26/04/2006

9293/03            Bacso, judgment of 04/11/2008, final on 04/02/2009

78037/01          Caracas, judgment of 29/06/2006, final on 11/12/2006

                       - 7 cases mainly concerning length of criminal proceedings

77517/01+        Stoianova and Nedelcu, judgment of 04/08/2005, final on 04/11/2005

73502/01          Aliuta, judgment of 11/07/2006, final on 11/10/2006

5512/02            Crăciun, judgment of 30/09/2008, final on 26/01/2009

71649/01          Petre, judgment of 27/06/2006, final on 23/10/2006

1505/02            Reiner and others, judgment of 27/09/2007, final on 27/12/2007

36293/02           Temeşan, judgment of 10/06/2008, final on 01/12/2008

78048/01          Tudorache, judgment of 29/09/2005, final on 29/12/2005

The cases concern the excessive length of criminal proceedings brought against the applicants (violations of Article 6§1). The proceedings in the Aliuta, Crăciun and Petre cases were pending when the European Court gave its judgments.

The Reiner and others case also concerns the dismissal by the domestic courts of the applicants’ repeated requests to question certain witnesses (violation of Article 6§3(d)).

Individual measures: In the Reiner and others case the European Court observed that the applicants might request the reopening of the proceedings under Article 408-1 of the Code of Criminal Procedure.

• The authorities are invited to provide information on the current state of the pending proceedings and, if appropriate, to take appropriate measures to accelerate them.

General measures:

1) Violation of Article 6§1:According to the statistics collected by the Superior Council of Magistracy with regard to the average length of criminal proceedings, in 2007 85,6% of criminal proceedings were concluded in less than 6 months (the recommended limit) and only 3% in more than one year. Starting with 2005, the inspectors of the Superior Council of Magistracy have regularly monitored courts’ activities from the point of view of compliance with the recommended time limits for criminal trials and, where needed, disciplinary sanctions have been applied.

It should be also noted that the Ministry of Justice is drawing up a new Code of Criminal Procedure containing a series of measures which should contribute to the speediness of proceedings (e.g., introduction of a simplified procedure for less serious offences, recognition of guilt, etc.).

The judgment in the Stoianova and Nedelcu case was published in the Official Journal and sent to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts with a recommendation to discuss this judgment during activities related to continued professional education of judges.

In accordance with the practice of the Committee of the Ministers since the adoption of Recommendation Rec(2004)6 to member states on the improvement of domestic remedies, information was also requested on measures taken or envisaged to set up an effective remedy against the excessive length of criminal proceedings.

In this context, it should be noted that on 03/04/2006, the Romanian authorities, in co-operation with the Commission for Democracy through Law (Venice Commission), organised a conference on possible remedies in respect of excessive length of proceedings. The discussions concerned the identification of the reasons for excessive length of proceedings and remedies. The results of the conference have been partially reflected in the conclusions of a study published by the Venice Commission at the end of 2006. The Romanian authorities intend to examine the adoption of possible practical solutions to the problem of the excessive length of proceedings, taking into account the conclusions of the Venice Commission.

• Bilateral contacts are under way to assess the scope of the measures adopted and still envisaged to prevent new violations due to excessive length of proceedings and on possibilities of establishing effective domestic remedies in this respect.

2) Violation of Article 6§3(d): It seems that the violation found in the Reiner and others case resulted from the incorrect practice of courts. In view of the direct effect of the European Convention in Romania, it may be assumed that the requirements of Article 6§1 (d) and the European Court's case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court. In this context it should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp).

• In addition the present judgment should be sent out to all domestic courts in order to avoid similar violations.

- 28 cases mainly concerning the length of civil proceedings and lack of an effective remedy

1295/02            Nicolau, judgment of 12/01/2006, final on 03/07/2006

37411/02           Abramiuc, judgment of 24/02/2009, final on 24/05/2009

19895/02           Apahideanu, judgment of 02/12/2008, final on 06/04/2009

15204/02           Atanasiu, judgment of 17/01/2008, final on 17/04/2008

8870/02            Bercaru, judgment of 16/09/2008, final on 26/01/2009

42588/02           Cârjan, judgment of 25/01/2007, final on 25/04/2007

56326/00           Cârstea and Grecu, judgment of 15/06/2006, final on 23/10/2006

31250/02           Cerăceanu No. 1, judgment of 04/03/2008, final on 29/09/2008

10277/04           Constantinescu Nicolae, judgment of 30/09/2008, final on 30/12/2008

26662/02           Craiu, judgment of 07/10/2008, final on 07/01/2009

19055/05           Deak, judgment of 03/06/2008, final on 01/12/2008[72]

22011/03           Deckany, judgment of 01/04/2008, final on 01/07/2008

29301/03           Drăgănescu, judgment of 30/09/2008, final on 06/04/2009

6373/03            Dumitrescu Gheorghe and Maria Mihaela, judgment of 29/07/2008, final on 26/01/2009

29558/02           Duţă, judgment of 30/09/2008, final on 26/01/2009

38692/05+         Forum Maritime S.A., judgment of 04/10/2007, final on 04/01/2008

19215/04           Gheorghe, judgment of 15/03/2007, final on 15/06/2007

35229/02           Guţă, judgment of 16/11/2006, final on 26/03/2007

12534/02           Ionescu Petre, judgment of 02/12/2008, final on 06/04/2009

67710/01           Ispan, judgment of 31/05/2007, final on 31/08/2007

19567/02           Matica, judgment of 02/11/2006, final on 02/02/2007

34461/02          Mişcarea Producătorilor Agricoli pentru Drepturile Omului, judgment of 22/07/2008, final on 01/12/2008

32700/04           Păunoiu, judgment of 16/09/2008, final on 16/12/2008

30043/04           Popovici Laurenciu, judgment of 24/02/2009, final on 24/05/2009

32228/02           S.C. Comprimex S.A., judgment of 30/09/2008, final on 06/04/2009

42907/02           SC Concept Ltd SRL and Manole, judgment of 22/11/2007, final on 07/07/2008

26533/05           Stanciu Varvara, judgment of 21/02/2008, final on 21/05/2008

9415/02            Tăşchină, judgment of 01/07/2008, final on 01/10/2008

These cases concern the excessive length of civil proceedings (violations of Article 6§1). The proceedings in all those cases, with exception of the Duţă, Mişcarea Producătorilor Agricoli pentru Drepturile Omului, Nicolau, SC Concept Ltd SRL and Manole cases, were closed when the European Court gave its judgments. In the Gheorghe case the European Court found that, as the applicant's state of health had declined considerably during the proceedings, considerable diligence was required on the part of the authorities.

The Gheorghe case also concerns a violation of the applicant’s right to a fair hearing on the account of absence of a specific and explicit response from the Supreme Court of Justice in a decision of 4/11/2003, to his ground of appeal in a case concerning his disability allowance (violation of Article 6§1). The European Court found that in the absence of such a response it was impossible to ascertain whether the domestic courts had simply neglected to examine the content of the applicant's claim or whether its dismissal had been the result of a manifest error of judgment as to the subject-matter of the action.

The Forum Maritime S.A. case also concerns the impossibility to have an independent and impartial tribunal examine the order of dismissal issued by the prosecutor in 2000 with respect to the applicant company’s criminal complaint with civil-party application (violation of Article 6§1). The European Court noted that a prosecutor did not fulfil the requirement of independence from the executive branch and that at the material time, the Code of Criminal Procedure provided no possibility of judicial appeal against an order of dismissal issued by a prosecutor.Finally, the Forum Maritime S.A. case also concerns the unfairness of the proceedings, neither the applicant nor his counsel having had access to the criminal file (violation of Article 6§1).

The Abramiuc case also concerns the late enforcement of a final judgment (violation of Article 6§1 and of Article 1 of Protocol No. 1) and the lack of an effective remedy concerning excessive length of civil proceedings (violation of Article 13).

Individual measures: In the Gheorghe case, Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court has found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non‑pecuniary damage.

• Clarification is expected as to whether the reopening of the proceedings at issue is also possible in the Forum Maritime S.A. case.

• Information is expected on the state of proceedings in the Duţă, Mişcarea Producătorilor Agricoli pentru Drepturile Omului, Nicolau, SC Concept Ltd SRL and Manole cases and, if appropriate, on measures taken to accelerate them.

General measures:

            1) Excessive length of proceedings and lack of effective remedy:

• Information provided by the Romanian authorities (3/12/2008): In the framework of the draft new code of civil procedure, a special procedure will be created to contest the excessive length of proceedings before the court competent to hear the case, which will pronounce its decision by an interlocutory judgment.

It will be possible to appeal such judgment before the hierarchically superior court. Amendments are also proposed concerning appeals on points of law, which will become an extraordinary appeal available only in exceptional cases. Stricter conditions for the exercise of this appeal are being considered. The notion of “deadline in full awareness” will be given a broader sense, so that it includes all situations in which it may be presumed that the party received the notification and is aware of the deadline. Thus it will no longer be possible to adjourn hearings because of failure to carry out the formal requirements of notifying the parties, if it becomes clear that the parties were already fully aware, as a result of their presence at earlier hearings, of the dates in question. This measure should contribute to shortening proceedings. Legislative amendments are also envisaged in the field of forced execution, including the possibility to order certain measures by the enforcement body by final and binding interlocutory judgments.

• Bilateral contacts are under way concerning this information and on measures still envisaged to prevent new violations and on possibilities of establishing effective domestic remedies in this respect.

It should be noted that all the judgments of the European Court are regularly published in the Official Journal. The European Court’s judgment in the Cârstea and Grecu case was also sent to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts.

2) Failure to give specific response to applicant's claims: It seems that the violation in the Gheorghe case was of an isolated nature. In view of the direct effect of the European Convention in Romania, it may be assumed that the requirements of Article 6§1 and the European Court's case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court. In this context it should be noted that all judgments of the European Court against Romania are regularly published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). The present judgment was also sent to the Superior Council of Magistracy, with a view of its dissemination to all domestic courts, with the recommendation that it be discussed amongst the activities related to continued education of judges.

• Assessment: No further measure appears necessary.

3) Independent and impartial tribunal: The Forum Maritime S.A. case presents similarities to that of Grecu (Section 4.1).

4) Access to a prosecution file: In the Forum Maritime S.A. case the European Court noted that under the Code of Criminal Procedure and according to general legal opinion, criminal proceedings during the prosecution phase were, at the material time, neither public nor contradictory. However, following the amendment of Article 173 of the Code of Criminal Procedure by Law No. 281 of 24/06/2003, lawyers of the civil party may be present during the course of all prosecution acts.

• Assessment: No additional measure seems necessary.

            5) Late enforcement of a final judgment: The Abramiuc case presents similarities to Săcăleanu group (73970/01,1078th meeting, March 2010).

62276/00          Nichifor No. 1, judgment of 13/07/2006, final on 13/10/2006

The case concerns the excessive length of certain proceedings concerning civil rights and obligations before the administrative commission responsible for the application of Law No. 112/1995 and before civil courts (violation of Article 6§1). Proceedings began in July 1996 and ended in December 2000 (four years and five months, of which three years and eight months were before the administrative commission).

Individual measures: None: the proceedings are closed. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

General measures: It should be noted that all the judgments of the European Court against Romania are regularly published in the Official Journal. The present judgment was also published on the Internet site of the Supreme Council of Magistracy (http://www.csm1909.ro/csm/index.php?lb=ro /) and a summary on the Internet site of the Ministry of Foreign Affairs (http://www.mae.ro). The content of this judgment was sent to the Supreme Council of Magistracy, with a view to its dissemination to all domestic courts, with the recommendation that it is included for consideration in the activities related to continued education of judges, and to all prefectures, with a view to its dissemination to the administrative commissions responsible for the application of laws related to the restitution of property.

The European Court noted that that national law requires the administrative commission at issue to take decisions within 30 days.

• The authorities are therefore invited to provide information as to whether or not the delay encountered in this case was exceptional and, if appropriate, whether measures have been taken or are planned to ensure that the limits established by law are respected.

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

                        CM/Inf/DH(2009)31; CM/Inf/DH(2009)31-rev

These cases concern complaints raised by the applicants, all of Roma origin, concerning the consequences of certain events which took place between 1990 and 1993.

In the Moldovan and others, judgments No 1 and No. 2, violent clashes occurred in September 1993 between the Roma community and the other villagers in the Hădăreni village, leading to the death of three Roma and to the destruction of the applicants' houses and of much of their personal belongings. By a court verdict delivered in 2004 (final in February 2005), several non-Roma villagers were found guilty and were ordered to pay civil compensation to the applicants.

In the judgment on the merits (Moldovan and others, judgment No. 2) the European Court found that, in view of the direct repercussions of the acts of state agents on the applicants' rights (in particular due to the involvement of police officers in the burning of the Roma houses), the government's responsibility was engaged with regard to the applicants' living conditions, even after 20/06/1994, when Romania ratified the Convention. Thus, it concluded that the general attitude of the national authorities had perpetuated the applicants' feelings of insecurity and affected their right to respect for their private and family life and their homes. In this respect, the European Court noted, inter alia, that the Public Prosecutors' Office had failed to institute criminal proceedings against the state agents involved in the burning of the applicants' houses, that the domestic courts had refused for many years to award the applicants pecuniary damages for the destruction of their belongings and furniture, that some of the houses had not been rebuilt by the authorities and those which supposedly had been rebuilt remained uninhabitable, etc. (violations of Article 8).

Further, the European Court found that the applicants' living conditions over the last ten years (in overcrowded and unsuitable dwellings), together with the racial discrimination to which they had been publicly subjected by the way in which their grievances had been dealt with by the various (judicial and administrative) authorities, had constituted an interference with their human dignity which, in the special circumstances of the case, had amounted to “degrading treatment” within the meaning of Article 3 (violations of Article 3).

The European Court also found that the proceedings brought by the applicants for compensation against the civilians accused of violent acts had lasted too long. These proceedings began in September 1993, when the applicants became civil parties to criminal proceedings against the presumed perpetrators. They ended on 25/02/2005 with the confirmation by the Court of Cassation of a lower court's verdict ordering those who had already been convicted in 1999 for taking part in the violent incidents, to pay compensation to the applicants who had sustained both pecuniary and non-pecuniary damage (violation of Article 6§1).

Finally, the European Court noted that the applicants' Roma origin seems to have had a decisive influence on both the duration and the outcome of the domestic proceedings. Particular note was taken of the authorities' discriminatory remarks throughout the proceedings and the fact that a court decision to reduce the amount of compensation awarded to the applicants for non-pecuniary damage had been motivated by observations directly linked to their ethnic origin (violation of Article 14 taken together with Articles 6 and 8).

In the Moldovan and others, judgment No.1, the European Court took note of the friendly settlements concluded between the respondent state and some of the applicants.

The Kalanyos and others and Gergely cases concern the failure of criminal investigations to clarify fully the circumstances which led to the destruction of houses belonging to Roma villagers in Plăieşii de Sus and Caşinul Nou (district of Plăieşii de Jos, Harghita County) by local population in August 1990 and June 1991.

The government recognised that these events left the applicants living in precarious conditions, depriving them of their right to bring a civil action to establish liability and recover damages and making it difficult to exercise their right to respect for home, private and family life. The government has also expressed its regret concerning remarks made by certain authorities concerning the applicants' Roma origin and accordingly admitted that the circumstances constituted violations of Articles 3, 6, 8, 13 and 14. The European Court took note of the government's regret and acknowledgment of the violations and of its proposals concerning individual and general measures for settlement of these cases.

Individual measures:

1) Moldovan and others no. 1 (friendly settlement): The Romanian government offered to pay the applicants various sums of money covering pecuniary and non-pecuniary damage, as well as costs and expenses. Both the government and the applicants indicated that this payment constitutes a final settlement of the case, including the applicants' domestic civil claims.

2) Moldovan and others no. 2 (judgment on merits): The European Court, under Article 41, awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damages.

In May 2006, the authorities examined the legal possibility of opening criminal proceedings against the government agents involved in the events of 1993. It was noted that no evidence in the case-file showed that they had committed homicide. Only the crimes of incitement to destruction or incitement to perjury could have been held against them. However, due to the prescription of criminal liability (five years in similar situations) new criminal proceedings could not be opened.

According to the information submitted in February 2006, the procedure of forced execution of the sums granted to the applicants by the internal decision (final on 25/02/2005, see above) was pending before the Ludus Court.

• Information is expected on further developments with respect to the forced execution.

3) Kalanyos and others, Gergely: The authorities undertook to compensate the damage sustained by the applicants as well as their costs and expenses.

General measures:

            1) Undertakings of the government: Under the terms of the friendly settlement (Moldovan and others, judgment no. 1 case) and in both the Kalanyos and others and the Gergely cases, the Romanian government undertook to adopt several measures to fight against the discrimination against Roma, such as:

- enhancing the educational programmes for preventing discrimination against Roma in the school curricula in the Hǎdǎreni community (Mureş County) and in both Plăieşii de Sus and Caşinul Nou communities (Harghita County);

- drawing up public information programmes to dispel stereotypes, prejudices and practices towards the Roma community in the Mureş public institutions competent for the Hǎdǎreni community and in the Harghita public institutions competent for the Plăieşii de Sus and Caşinul Nou communities;

- initiating legal education programmes together with the members of the Roma communities and ensuring the eradication of racial discrimination within the Romanian judicial system;

- supporting positive changes in public opinion of the Hǎdǎreni, Plăieşii de Sus and Caşinul Nou communities concerning Roma on the basis of tolerance and the principle of social solidarity;

- stimulating Roma participation in the economic, social, educational, cultural and political life of the local community in Mureş County and Harghita County by promoting mutual assistance and community development projects;

- implementing programmes to rehabilitate housing and the environment in the communities and

- identifying, preventing and actively solving conflicts likely to generate family, community or inter-ethnic violence.

Furthermore, in the context of the friendly settlement, the government undertook to prevent similar problems in the future by carrying out adequate and effective investigations and by adopting social, economic, educational and political policies to improve the conditions of the Roma community in accordance with the government's present strategy in this respect. In particular, it declared that it will undertake general measures as required by the specific needs of the Hădăreni community in order to facilitate the general settlement of the case, taking also into account the steps which have already been taken with this aim, such as rebuilding some of the houses destroyed.

It seems that these undertakings could serve, mutatis mutandis, as a basis for the assessment of general measures taken or envisaged for the execution of the judgment on merits (Moldovan No. 2).

• Information on the measures adopted:

(a) Concerning the Moldovan and others cases, the Romanian authorities have informed the Secretariat that the National Agency for the Roma (http://www.anr.gov.ro/), an organ subordinated to the Romanian government, has drawn up a “General Plan of Action” on the implementation of the Romanian authorities' undertakings in order to fulfil the commitments foreseen in the friendly settlement. According to this plan of action, a team made up of governmental experts and experts belonging to civil society visited Hǎdǎreni on several occasions to present the project to its inhabitants, to identify problems and general attitudes in the local community and to choose the people who could help implement the project locally. The conclusions of these visits have been used to draft a “Community Development Programme”, which addresses issues such as education (including health education and legal education), the fight against discrimination, the prevention of family or community conflicts, professional training, employment and the development of infrastructure, culture, etc. A governmental decision approving the Hadareni Community Development Plan 2006-2008 was adopted and published in the Official Gazette on 4/05/2006. By a governmental decision published in the Official Gazette on 16/07/2007, the implementation of the programme was transferred to the United Nations Development Programme (UNDP), whereas the supervision and the assessment of the implementation remained with the National Agency for Roma.

Concerning the Kalanyos and others and Gergely cases, on 08/10/2008 the government adopted a decision approving a Community Development Programme concerning the prevention of and combating discrimination in Plăieşii de Sus and Caşinul Nou (community Plăieşii de Jos, Harghita County) and the budget for this programme for the period of 2008-2009. According to this decision, the sums necessary for the financing of this programme are to be assigned from the budget of the National Council for Combating Discrimination, which is to co-ordinate the implementation of the programme and to supervise its financial execution.

During a bilateral meeting between the Secretariat and the authorities held in Bucharest in June 2009, the Romanian authorities presented detailed information concerning the implementation of the undertakings foreseen in the Kalanyos and others and Gergely cases. This information is summarised in the information document updated by the Secretariat (CM/Inf/DH(2009)31-rev).

(b) By Law No. 103/2006, Romania has ratified Protocol No. 12 to the Convention (published in the Official Gazette on 2/05/2006). The Romanian authorities have also indicated that they envisage amending the legislation concerning the fight against discrimination, in order to create a direct and effective possibility to obtain redress for discriminatory acts.

Moreover, the National Agency for the Roma signed an agreement with UNDP (United Nations Development Programme). The parties committed themselves to establish six assistance social centres for Roma to facilitate their socio-economic integration. One of the centres will have its seat at Targu Mures. Further, according to the Memorandum of Understanding signed by the Romanian government and UNDP in September 2005, 11 projects will be financed within the “Partnership for supporting the Roma 2005” Program.

The Romanian authorities also presented information on general public policies concerning Roma in Romania and on programmes and initiatives of the National Agency for Roma.

(c) Submissions under Rule 9§2: In March 2009, an NGO (European Roma Rights Centre) presented an assessment of the implementation of the undertakings made by the Romanian authorities in these cases which has been subsequently commented by the authorities.

• This information has been examined by the Secretariat and presented in the information document CM/Inf/DH(2009)31, declassified at the 1059th meeting (June 2009).

On 22/06/2009, four NGOs (Accept Association, Centre for Legal Resources, PRO EUROPE League and Romani CRISS) submitted an assessment of the implementation of the undertakings made by the Romanian authorities in the Moldovan and others cases. Later on, the Romanian authorities submitted their comments on this subject. 

• This information is presented in the updated information document on this issue (CM/Inf/DH(2009)31-rev).

• 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, as well as on 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+, Section 4.2).

            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, 1.             took note of the information submitted by the Romanian authorities on the state of the execution of this group of cases and of the outstanding issues, as presented in the updated memorandum prepared by the Secretariat; 2.             noted with interest the developments achieved in implementing the action plan for the localities Plăieşii de Sus and Caşinul Nou and encouraged the authorities to continue their efforts, particularly in view of drawing the consequences of the experts’ conclusions concerning the needs of these communities; 3.             noted that further information and clarification are necessary concerning the continuation and the financing of the action plan for the Hădăreni village; 4.             underlined the need for the authorities to evaluate the impact of measures already implemented and the necessity to adopt further measures for all the localities at issue, and to inform the Committee of their conclusions in this respect; 5.             decided to declassify the updated memorandum and to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of further information to be provided.

- 268 cases against the Russian Federation

7178/03            Dedovskiy and others, judgment of 15/05/2008, final on 15/08/2008

The case concerns various violations related to torture inflicted on the applicants while serving their prison sentences, due to unlawful and disproportionate use of rubber truncheons against them by the “Varyag squad”, a special unit created to maintain order in detention facilities.

In April 2001 the squad was called into the Chepets correctional colony, allegedly to intimidate detainees who were being encouraged to be subversive by the leader of a criminal gang. The squad had instructions to maintain order by carrying out body searches of detainees and searches of all quarters within the colony. The whole squad, except for its commander, wore balaclava helmets and camouflage uniforms with no indication of their rank and were armed with rubber truncheons.

The European Court found that the squad’s use of truncheons had had no basis in law. The Penitentiary Institutions Act permitted rubber truncheons to be used in certain situations such as curtailing assaults, repressing mass disorder and apprehending those who persistently disobeyed or resisted officers. However, there was no evidence that the applicants had attacked officers or other detainees, the beatings had been individual, rather than collective, in nature and, even though some applicants had allegedly disobeyed or resisted officers’ orders, no attempt had been made to arrest them.

The European Court further found that the actions by the unit officers were grossly disproportionate to the applicants’ imputed transgressions and manifestly inconsistent with the goals they sought to achieve. The Court therefore concluded that the squad had resorted to deliberate and gratuitous violence and had intended to arouse in the applicants feelings of fear and humiliation, which would break their physical or moral resistance. The purpose of that treatment had been to debase the applicants and drive them into submission. The European Court found that the truncheon blows must have caused them intense mental and physical suffering amounting to torture (substantive violation of Article 3).

The European Court also found that the investigation carried out into the applicants’ allegations of ill-treatment had not been thorough, adequate or efficient. The Court criticised in particular the circumstances in which the criminal proceedings had been discontinued. It first noted that no evidence was produced to show that the applicants had been medically examined following those events. It then considered that, by allowing the squad to cover their faces and not to wear any distinctive signs on their uniform, the Russian authorities had knowingly made it impossible to have them identified by their victims. It also noted that the prosecutor’s decisions to discontinue the proceedings were not served on the applicants. Finally, the European Court pointed out the contradictory nature of the grounds used to justify the acquittal of the commander of the squad (procedural violation of Article 3).

Finally, after the criminal proceedings had been discontinued, any other remedy available to the applicants, including a claim for damages, had limited chances of success. The European Court therefore concluded that the applicants had not disposed of an effective remedy under domestic law to claim compensation for the ill-treatment they had suffered (violation of Article 13).

The European Court also found a violation of the respondent state's obligation to furnish all necessary facilities to the Court in establishing the facts on account of the authorities’ failure to provide a copy of the report on the inquiry carried out by a representative of the Prosecutor General’s Office without any justification (violation of Article 38§1a).

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

• Information is awaited on measures possibly taken or planned to remedy the shortcomings of the investigation and previous criminal proceedings identified by the European Court in its judgment, and in particular on the re-opening of proceedings.

General measures: It appears that this judgment requires important general measures to prevent new, similar violations.

1) Material violation of Article 3 – use of special means of constraint: The relevant provisions of the Penitentiary Institutions Act have not been challenged by the European Court. However, it results from the judgment that these provisions were not complied with by the special unit officers in this particular case.

• Information is thus awaited on the measures taken or planned to ensure that the force and special coercive means used are strictly proportionate to the aim pursued. Information is also awaited on the existence of any regulatory framework governing the planning and conduct of such operations, the training of the members of special units, etc.

2) Procedural violation of Article 3 – investigation of alleged abuses:

• Information is awaited on measures taken or planned to ensure prompt and comprehensive medical examination of inmates in similar situations.

Information is awaited on whether there is an obligation to report each occurrence of the use of rubber truncheons, i.e. on the nature of the reporting procedure, the existence of a monitoring system for the use of special means of constraint, the person or body responsible for such monitoring, whether a written report is drawn up as a result of such monitoring/verification, the circumstances in which the results of such monitoring give rise to a criminal investigation.

Information is also awaited as to whether commanding (superior) officers may be held responsible if their subordinates resort, or have resorted, to unlawful use of force, and if they have failed to take all measures in their power to prevent, suppress or report such use. And if so, information would be useful on how their responsibility is engaged, i.e. the authority in charge of the prosecution, etc.

3) Violation of Article 13 – existence of an effective remedy: This aspect presents similarities to the Khashiyev group of cases (57942/00, Section 4.3).

4) Violation of Article 38 § 1 a) – Obligation to co-operate with the European Court: This aspect also presents similarities to the Khashiyev group of cases, above-mentioned. See in particular the Memorandum prepared by the Secretariat CM/Inf/DH(2008)33, §§ 131-137.

5) Publication and dissemination:

• Information is awaited on the publication of the European Court’s judgment and its dissemination to all authorities concerned, in particular to the relevant departments of the Federal service for execution of sentences, to prosecutors, to members of the Investigating Committee and to all courts. In view of the seriousness of the violations found, it appears appropriate that such dissemination is accompanied by appropriate circular letters and/or instructions drawing the attention of the authorities concerned to their obligations under the Convention.

4353/03            Tarariyeva, judgment of 14/12/2006, final on 14/03/2007

The case concerns the authorities' failure to protect the life of the applicant's son who died in the Khadyzhensk colony due to the lack of adequate medical follow up of his disease and post-operative care and defective medical assistance administered to him at the public hospital (violation of Article 2).

The European Court further found that the investigation into the death of the applicant's son was slow and its scope too restricted, leaving out many crucial aspects of the events. The applicant's right to effective participation in the investigation was not secured. Finally, after the acquittal of the suspect due to the poorly prepared evidentiary basis, the applicant was deprived of an accessible and effective civil-law remedy, either because a civil claim was barred by operation of law or because it had no chances of success in the light of the existing judicial practice (procedural violation of Article 2).

The case further concerns inhuman treatment inflicted on the applicant's son as a result of his handcuffing at the civilian hospital and the conditions of his transport in a prison van, which contributed to his suffering (violation of Article 3).

Individual measures: It results from the judgment that only the head of the surgery department of the public hospital was referred to a trial court in this case. For unspecified reasons the report of medical experts of 19/06/2003 which concluded to the defendant's guilt was rejected by the trial court and the defendant was consequently acquitted. The criminal proceedings against other doctors of the prison hospital and of the public hospital were discontinued by prosecutors on the ground that an alleged offence had not been committed.

• Information provided by the applicant: The applicant stated that she had lodged several applications with a number of competent authorities, in particular with a Prosecutor General of the Russian Federation, but without success.

She indicated that on 25/05/2007 the Civil Chamber of the Supreme Court of the Adyugeya Republic quashed the first-instance court's approval of the prosecutor' refusal to open criminal proceedings in respect of the doctors of the prison hospital and referred the case back to the first-instance court for a new examination. It would however appear that these proceedings were already pending when the European Court delivered its judgment.

• Information provided by the Russian authorities: The Russian authorities indicated that on 15/06/2007 the first-instance court quashed the prosecutor’s refusal to open criminal proceedings and invited the senior assistant to Prosecutor of the Adyugeya Republic to rectify the violations found. These violations were rectified by a decision of the Deputy Prosecutor of the Adyugeya Republic of 6/07/2007. By the same decision the Deputy Prosecutor refused to open criminal proceedings against the doctors of the prison hospital on the ground that the alleged offence had not been committed.

• Bilateral contacts between the Secretariat and the Russian authorities are under way.

General measures: On an unspecified date the judgment of the European Court was sent out to the Supreme Court, the General Prosecutor’s office and the Ministry of health and social development by the Representative of the Russian Federation at the European Court so that they might take measures within their competence and use it in their daily practice.

            1) Violation of Article 2 in relation to the lack of requisite medical care: see the Popov case (26853/04, Section 4.2)

            2) Procedural violation of Article 2 in relation to the civil claim for compensation: see the Khashiyev and other cases (57942/00, Section 4.3).

            3) Violation of Article 3 in relation to handcuffing of the applicant's son at the civilian hospital

The Russian authorities have indicated that there were no specific rules governing the situation of convicts in civil hospitals. The convicts and the penitentiary staff ensuring their protection are subject to the Criminal Code of Execution of Sentences, the Federal Law of 21/10/2005 on institutions and organs responsible for the execution of sentences involving deprivation of liberty as well as other departmental regulations, such as the joint Order of the Ministry of Health and of Ministry of Justice of 17/10/2005 N°640/190 on the organisation of medical care for persons serving their sentences and being detained on remand;

Order of the Ministry of justice of 15/02/2006 N°21-дсп, approving the “Instruction on security in penitentiary institutions”.

• The texts of the documents mentioned above would be particularly helpful.

            4) Violation of Article 3 in relation to transport of the applicant's son: It would appear that in this particular case the transport of the applicant’s son was ensured by the penitentiary institution.

• Information is therefore awaited on the rules and standards governing the transport of ill detainees to public hospitals.

• Information is also awaited on publication of the European Court's judgment in general and specialised law journals and dissemination of the judgment, together with appropriate instructions to be issued by the Federal Service for Execution of Sentences and by the Ministry of Health, to all authorities concerned.

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-rev3 and CM/Inf/DH(2006)45

35421/05           Mechenkov, judgment of 07/02/2008, final on 07/07/2008[77]

                       - 43 cases concerning unlawful detention, excessive length and insufficient grounds

                       CM/Inf/DH(2007)4[78]

46082/99          Klyakhin, judgment of 30/11/05, final on 06/06/05

4026/03            Bakhitov, judgment of 04/12/2008, final on 04/03/2009

21153/02          Bednov, judgment of 01/06/2006, final on 01/09/2006

72967/01          Belevitskiy, judgment of 01/03/2007, final on 01/06/2007

22053/02          Belov, judgment of 03/07/2008, final on 03/10/2008

1603/02            Brovchenko, judgment of 18/12/2008, final on 18/03/2009

11886/05          Dolgova, judgment of 02/03/2006, final on 03/07/2006

31008/02          Fedorov and Fedorova, judgment of 13/10/2005, final on 13/01/2006

26386/02          Fursenko, judgment of 24/04/2008, final on 24/07/2008

16595/02          Golovkin, judgment of 03/04/2008, final on 29/09/2008

42940/06          Govorushko, judgment of 25/10/2007, final on 25/01/2008

67542/01          Gusev, judgment of 15/05/2008, final on 15/08/2008

70276/01          Gusinskiy, judgment of 19/05/2004, final on 10/11/2004

27193/02          Ignatov, judgment of 24/05/2007, final on 24/08/2007

59696/00          Khudobin, judgment of 26/10/2006, final on 26/01/2007

6847/02            Khudoyorov, judgment of 08/11/2005, final on 12/04/2006

19126/02          Komarova, judgment of 02/11/2006, final on 02/02/2007

75039/01          Korchuganova, judgment of 08/06/2006, final on 08/09/2006

38971/06          Korshunov, judgment of 25/10/2007, final on 25/01/2008

3023/03            Krivonosov, judgment of 27/11/2008, final on 27/02/2009

4493/04            Lebedev, judgment of 25/10/2007, final on 02/06/2008

3223/07            Makarov Aleksey, judgment of 12/06/2008, final on 12/09/2008

7064/05            Mamedova, judgment of 01/06/2006, final on 23/10/2006

18123/04          Matskus, judgment of 21/02/2008, final on 21/05/2008

24552/02          Melnikova, judgment of 21/06/2007, final on 30/01/2008

36911/02          Mishketkul and others, judgment of 24/05/2007, final on 12/11/2007

55669/00          Nakhmanovitch, arrêt du 02/03/2006, final on 02/06/2006

22674/02           Oblov, judgment of 15/01/2009, final on 15/04/2009

45100/98          Panchenko, judgment of 08/02/2005, final on 08/05/2005

30209/04          Ponushkov, judgment of 06/11/2008, final on 06/02/2009

32327/06          Popkov, judgment of 15/05/2008, final on 29/09/2008

28957/02          Pshevecherskiy, judgment of 24/05/2007, final on 24/08/2007

54071/00          Rokhlina, judgment of 07/04/2005, final on 12/10/2005

64140/00          Rozhkov, judgment of 19/07/2007, final on 12/11/2007

7649/02            Shcheglyuk, judgment of 14/12/2006, final on 14/03/2007

13541/06           Shkilev, judgment of 19/03/2009, final on 19/06/2009

65734/01          Shukhardin, judgment of 28/06/2007, final on 28/09/2007

4459/03            Sidorenko, judgment of 08/03/2007, final on 08/06/2007

3947/03            Silin, judgment of 24/04/2008, final on 24/07/2008

46133/99+        Smirnova, judgment of 24/07/2003, final on 24/10/2003

2708/02            Solovyev Vladimir, judgment of 24/05/2007, final on 12/11/2007

40258/03           Yudayev, judgment of 15/01/2009, final on 15/04/2009

942/02              Zementova, judgment of 27/09/2007, final on 27/12/2007

                       - 33 cases concerning poor conditions of detention, amounting to degrading treatment[79]

47095/99          Kalashnikov, judgment of 15/07/02, final 15/10/02, Interim Resolution ResDH(2003)123

22107/03           Antropov, judgment of 29/01/2009, final on 29/04/2009

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

28617/03           Belashev, judgment of 04/12/2008, final on 04/05/2009

106/02              Benediktov, judgment of 10/05/2007, final on 24/09/2007

68337/01           Buzychkin, judgment of 14/10/2008, final on 14/01/2009

39420/03           Bychkov, judgment of 05/03/2009, final on 05/06/2009

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

6270/06            Lyubimenko, judgment of 19/03/2009, final on 19/06/2009

6954/02            Maltabar and Maltabar, judgment of 29/01/2009, final on 29/04/2009

14850/03           Matyush, judgment of 09/12/2008, final on 09/03/2009

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

11982/02           Novinskiy, judgment of 10/02/2009, final on 10/05/2009

66460/01           Novoselov, judgment of 02/06/05, final on 02/09/05

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

- 6 cases mainly concerning courts’ refusal to accept the testimony of defence witnesses in proceedings leading to the applicants’ conviction[80]

26853/04          Popov, judgment of 13/07/2006, final on 11/12/2006

13769/04           Makeyev, judgment of 05/02/2009, final on 05/05/2009

30997/02           Polufakin and Chernyshev, judgment of 25/09/2008, final on 26/01/2009

77018/01           Polyakov, judgment of 29/01/2009, final on 29/04/2009

41461/02           Romanov Vladimir, judgment of 24/08/2008, final on 26/01/2009

1111/02            Trofimov, judgment of 4/12/2008, final on 4/03/2009

44009/05           Shtukaturov, judgment of 27/03/2008, final on 27/06/2008[81]

78146/01           Vlasov, judgment of 12/06/2008, final on 12/09/2008[82]

16159/03           Lobanov, judgment of 16/10/2008, final on 16/01/2009

The case concerns the applicant’s unlawful detention due to the delay in his release from imprisonment in Russia, as ordered by a Kazakh court (violation of Article 5§1). The applicant was convicted and sentenced to imprisonment in Kazakhstan. At his own request, he was transferred to Russia to serve his sentence. On 16/03/2000, following the applicant’s request for supervisory review, a Kazakh court reclassified the offence and discharged the applicant from serving the remainder of his sentence. The Russian authorities received the court’s decision on 18/05/2000. The applicant was released on 10/07/2000, i.e. one month and twenty-two days later. The European Court criticised the neglect on the part of the Russian authorities in respect of the applicant’s right to liberty. The Court noted a striking slowness in the delivery of documents concerning the applicant’s release.

The case further concerns the lack of an enforceable right to compensation for the deprivation of liberty, as the domestic courts dismissed his compensation claim establishing no unjustified delay in executing the Kazakh court’s decision (violation of Article 5§5).

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

• Assessment: No further individual measure appears necessary.

General measures:

1) Violation of Article 5§1:

• Information is awaited on legislative and administrative framework which would ensure that all measures required for a person’s release are taken promptly and diligently, in particular, on the possibility of using the mechanism for delivery of Government’s mail for correspondence concerning release orders.

2) Violation of Article 5§4:

• Information is awaited on legislative framework governing compensation for damages sustained as a result of unlawful detention. Information is also awaited on publication of the European Courts’ judgment and its dissemination.

62936/00           Moiseyev, judgment of 09/10/2008, final on 06/04/2009

The case concerns a number of violations related to the criminal proceedings initiated against the applicant in 1999-2001 for high treason.

Conditions of the applicant's detention: The European Court found that they amounted to inhuman and degrading treatment because he was forced to live, sleep and use the toilet in poorly lit and ventilated cells with many other inmates for almost four years (violation of Article 3).

Conditions of transport to court: The European Court found that they amounted to inhuman treatment in view of the fact that he had been transported more than a hundred times in standard-issue prison vans, which had no heating and were often overcrowded, without food, drink or access to a toilet, on average, six hours per day and at times (during his trial or at hearings concerning the extension of his detention) when he needed his powers of concentration (violation of Article 3).

The applicant's pre-trial detention: The European Court considered that this detention was excessively lengthy because the domestic courts failed to justify its extension by reasons which could be regarded as sufficient (violation of Article 5§3).

Right to a prompt examination of the lawfulness of detention: The European court found that the Supreme Court had not examined the applicant’s appeals against two decisions, of September and December 2000 rejecting his requests to be freed, and had not promptly decided upon other appeals introduced by the applicant against the decisions of July 2001 (violations of Article 5§4).

Independence and impartiality of the trial court: The European Court noted that there were eleven replacements of the judges on the bench in the applicant’s case. The reasons for such replacements were only made known on two occasions. Article 241 of the Code of Criminal Procedure only mentioned the possibility of replacing a judge who was “no longer able to take part in the proceedings”, without setting out the circumstances in which such a replacement was possible or indeed required. Nor did this Article contain any procedural safeguards. In these circumstances, the European Court found that Russian criminal law failed to provide the guarantees that would have been sufficient to exclude any objective doubt as to the absence of inappropriate pressure on judges in the performance of their judicial duties (violation of Article 6§1).

Proceedings in criminal cases against the applicant: The European Court found that they were excessively long (violation of Article 6§1).

Unfairness of the proceedings: The Court found that the prosecuting authority had had unrestricted control in the matter of visits by counsel to the applicant and had been able to peruse the documents exchanged between them, which had the effect of giving the prosecution advance knowledge of the defence strategy and placed the applicant at a disadvantage vis-à-vis his opponent. The Court further found that access by the applicant and his defence team to the case-file and their own notes – which were kept in a special secret department of the detention facility and the Moscow City Court – had been so curtailed that these measures had effectively prevented them from using the information contained in them, since they had had to rely solely on their recollections. Finally, the Court considered that the suffering and frustration which the applicant must have felt on account of the inhuman conditions of transport and confinement had impaired his faculty for concentration and intense mental application in the hours immediately preceding the court hearings, when his ability to instruct his counsel effectively and to consult with them had been of primordial importance. The cumulative effect of the conditions and the inadequacy of the available facilities had excluded any possibility for the applicant to prepare his defence in advance, especially taking into account that he could not consult the case-file or his notes in his cell.

The overall effect of these difficulties, taken as a whole, had so restricted the rights of the defence that the principle of a fair trial guaranteed by Article 6 was denied (violation of Article 6 §§ 1 and 3 (b) and (c)).

The applicant’s right to receive family visits whilst in detention: The European Court found that the Custody Act (Federal Law on the Detention of Suspects and Defendants, No. 103-FZ of 15/07/1995) and the Internal Rules for Remand Centres fell short of the requirement of foreseeability as they conferred unfettered discretion on the investigator in this matter but did not define the circumstances in which a family visit could be refused. The provisions at issue only mentioned the possibility of refusing family visits, without saying anything about the duration of the measure or the reasons that might warrant its application. The European Court further found that the Custody Act restricted the maximum frequency of family visits to two per month in a general manner, without affording any degree of flexibility to determine whether such limitations were appropriate or indeed necessary in each individual case. The European Court found no reason for such stringent limitations and consequently held that the authorities failed to maintain a fair balance of proportionality between the means employed and the aim they sought to achieve. Finally, the European Court found a violation of the applicant’s right to respect for family life on account of the separation of the applicant from his family by glass partition (violations of Article 8).

The applicant’s correspondence: The European court considered that Russian Law provided no legal protection against arbitrary interference by the public authorities in the applicant’s right to respect for his correspondence (violation of Article 8);

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

On 12/01/2009 the applicant informed the Secretariat that he was no longer in detention and had no intention to seek the re-opening of the proceedings in his case.

General measures:

            1) Independence and impartiality of the trial court: The new Code of Criminal Procedure has entered into force.

• Information is therefore awaited on new rules applicable to this issue.

            2) Unfairness of the proceedings: The new Code of Criminal Procedure has entered into force.

• Information is therefore awaited on new rules applicable to this issue.

            3) Poor conditions of pre-trial detention and lack of an effective remedy in this respect: These issues are being examined in the framework of the Kalashnikov group of cases (47095/99, Section 4.2).

            4) Poor conditions of transport to the courthouse: This issue is also being examined in the framework of the Kalashnikov group of cases above-mentioned.

            5) Excessive length of pre-trial detention and criminal proceedings: These issues are being examined in the framework of the Klyakhin group of cases (46082/99, Section 4.2).

            6) Restrictions on detainees’ correspondence and family visits: These issues are being examined in the Vlasov case (78146/01, Section 4.2).

            7) Publication and dissemination

• Information is awaited on publication of the judgment of the European Court and its dissemination, in particular to the Federal Service for Execution of Sentences, to the relevant departments of the Ministry of the Interior, to prosecutors and to courts, possibly with circular letters from their hierarchy.

3896/04            Ryabov, judgment of 31/01/2008, final on 07/07/2008

The case concerns a violation of the applicant’s right of individual petition on account of the opening of a police inquiry into the applicant’s relationship with his lawyer, Mrs. Moskalenko, and the fact that he was interrogated about it in prison (violation of Article 34).

In 2005 the Economic Security Department of the Ministry of the Interior carried out an inquiry into financial arrangements between the applicant and his lawyer in connection with the applicant’s representation before the European Court. The applicant was also visited in prison by state officials who attempted to obtain written statements from him on the subject.

The European Court found that the steps taken by the Russian authorities to inquire into the financial arrangements between the applicant and Mrs Moskalenko, including contacting her law office and the applicant himself in prison, had lacked any basis in law or in fact and had specifically targeted the applicant’s representative in order to prevent her from participating in the Strasbourg proceedings.

Individual measures: The applicant did not claim just satisfaction in respect of the violation of Article 34.

• Confirmation would be useful on whether the police inquiry in respect of Mrs. Moskalenko has been ended.

General measures: The European Court has found a violation of Article 34 in a number of cases against the Russian Federation on account of the authorities’ interference with an applicant’s right of individual petition due to a police inquiry opened against his lawyer and to his questioning in prison by state officials in relation to proceedings pending before the European Court.

In the initial cases of Fedotova (73225/01, Section 4.2) and Popov (26853/04, Section 4.2), the Committee is awaiting information on legislative or other measures envisaged to ensure effective operation of the system of individual petition.

• Information is awaited on the measures taken or envisaged in order to prevent any such violations in the future.

• Information is also expected concerning the publication and dissemination of the judgment.

In this context, the authorities' attention could be drawn to the Committee's Resolutions ResDH(2001)66 and ResDH(2006)45 stressing that the principle of co-operation with the Court embodied in the Convention is of fundamental importance for the proper and effective functioning of the Convention system and calling upon the governments of the contracting states to ensure that all relevant authorities comply strictly with this obligation.

14939/03           Zolotukhin Sergey, judgment of 10/02/2009 – Grand Chamber

The case concerns the breach of the principle of non bis in idem (violation of Article 4 of Protocol No.7).

On 4/01/2002 the applicant was convicted of “minor disorderly acts” in administrative proceedings and sentenced to three days’ detention. On 23/01/2002 criminal proceedings were brought against the applicant on a charge based on the same conduct of the applicant and substantially the same facts. On 2/12/2002 the applicant was acquitted by a district court. The acquittal was not based on the fact that the applicant had been tried for the same actions under the Code of Criminal Offences. The district court found that the evidence against the applicant failed to meet the criminal standard of proof.

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

•Assessment: No individual measure appears necessary.

General measures: The European Court noted that the principle of non bis in idem is restricted to the criminal justice sphere in the Russian legal system. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing criminal proceedings. The Russian Constitution protects an individual against a second conviction for the same “crime”.

• Information is awaited on measures taken or envisaged to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences. Information is also awaited on publication of the European Courts’ judgment and its dissemination, in particular to all courts, in particular to the Gribanovskiy District Court and prosecutors.

13470/02           Khuzhin and others, judgment of 23/10/2008, final on 23/01/2009

The case concerns the violation of the applicants’ right to the presumption of innocence (violation of Article 6§2), in that, a few days before their trial, three prosecution officials discussed the applicants’ case in detail in a broadcast by a state television channel. One of the officials said that the “crime” they had committed was characteristic of their “cruelty and meaningless brutality”.

The case also concerns the violation of the first applicant’s right to respect for his private life, as his photograph from the criminal file was shown on television, without his consent (violation of Article 8).

It also concerns the violation of the third applicant’s right to the peaceful enjoyment of his possessions on account of the unlawful impounding and retention of his van (violation of Article 1 of Protocol No.1).

It finally concerns the violation of the equality-of-arms principle in that the courts examining their defamation actions against a journalist and the third applicant’s claim relating to damage caused to his van refused them leave to appear (violation of Article 6§1).

Individual measures: The applicants’ claim under Article 41 of the Convention was rejected by the European Court, as it had been submitted by a person who was not properly authorised to do so. All three applicants were released. The second applicant died in an accident in 2006.

 • Information is awaited as to whether the first and third applicants have filed for the reopening of the criminal and civil proceedings and whether it is open to the first applicant to claim damages in respect of the publication of his photograph.

General measures:

1) Breach of the presumption of innocence (Article 6§2) and respect for private life (Article 8):

• Information is awaited on the regulatory framework applicable to statements made by officials in respect of suspects and the disclosure of information from the investigation file.

2) Attendance of hearings by convicted persons serving their sentences (Article 6§1): On several occasions the Russian Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It had emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps.

• Information is awaited on how the exercise of procedural rights of detainees is ensured in civil proceedings.

3) Breach of property rights (Article 1 of Protocol No. 1):

• Information is awaited on publication of the European Courts’ judgment and its dissemination.

4378/02            Bykov, judgment of 10/03/2009 – Grand Chamber

The case concerns interference by the authorities with the applicant’s right to respect for his private life which was not “in accordance with law” (violation of Article 8). In 2000 a criminal investigation was opened against the applicant and a covert operation was conducted according to the Operational-Search Activities Act. This Act was interpreted by the authorities as not requiring any prior judicial authorisation for their activities as the “guest house” where the action took place was not regarded as a “home” and the use of the radio-transmitting device was not interpreted as the “telephone tapping”.

The case further concerns the authorities’ failure to adduce relevant and sufficient reasons to justify the applicant’s detention pending trial (violation of Article 5§3).

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

• Assessment: No further individual measure appears necessary.

General measures:

1) Violation of Article 8: The European Court noted in its judgment that, to comply with the requirement of the “quality of the law”, a law which confers discretion must indicate the scope of that discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (§78). The European Court found that in the absence of specific and detailed regulations the interception as part of an “operative experiment” was not accompanied by adequate safeguards against possible abuses (§81).

• Information is awaited on measures taken or envisaged to ensure adequate safeguards against possible abuses in the use of surveillance techniques.

            2) The excessive length of the pre-trial detention without sufficient grounds (violation of Article 5§3): The general measures are examined in the Klyakhin group of cases (46082/99, Section 4.2).

3) Publication and dissemination of the European court’s judgment

• Information is awaited in this respect.

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

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

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

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

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

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

Regarding the Timishev case, The Russian authorities have indicated that the applicant's children have been admitted to Municipal School No. 28 in Nalchik. As regards registration as a resident in Nalchik, no request in this respect has been made by the applicant, either to the local department of the Federal migration service or to the Ministry of the Interior.

General measures:

            1) Violations of Article 2 of Protocol 4 and Article 14: In response to a question raised by the Secretariat, the Russian authorities have provided extensive information regarding the current state of Russian legislation and the measures taken, in particular to improve in-service training, to prevent new, similar violations.

• This information is currently being assessed by the Secretariat.

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

            3) Publication and dissemination: The judgment of the European Court was sent out to all authorities concerned, in particular

- all prosecutors, by letter from the Deputy Prosecutor General of the Russian Federation;

- all regional and municipal departments of the Ministry of Education and Science and education institutions, by letter from the Federal service for supervision in the field of education and science of 24/07/2006 No. 01‑678/07-01 drawing their attention to the illegality of including in the list of documents to be presented by parents to the school authorities of the registration certificate delivered by the organs of the Ministry of the Interior. This letter is also available on the Federal service web site www.obrnadzor.gov.ru <http://www.obrnadzor.gov.ru>;

- all Heads of territorial departments of the Federal migration service by letter from the Head of the Directorate of migrants and refugees of 24/07/2006 No. MD-3/13605;

- the Ministry of the Interior of the Kabardino-Balkaria Republic by letter from the Director of the Department for Road Safety of the Ministry of the Interior of the Russian Federation, instructing him to make the European Court's judgments a part of in-service training.

The Timishev judgment was published in the Bulletin of the European Court (Russian version) in 2006, No. 10.

55565/00           Bartik, judgment of 21/12/2006, final on 21/03/2007

The case concerns the restriction of the applicant's liberty of movement due to the authorities' refusal to authorise him to travel abroad for private purposes for a total of twenty years on the sole ground that he had access to classified information (“state secrets”) during his professional career.

The European Court found that an unqualified restriction on the applicant's right to travel abroad imposed by the Act on the Procedure for Entering and Leaving the Russian Federation for a considerable period of time was disproportionate and not necessary in a democratic society (violation of Article 2 of Protocol No. 4).

Individual measures: The restriction on the applicant's right to leave the country expired on 14/08/2001. The applicant now resides in the United States of America. The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage he sustained. The applicant informed the Secretariat that he had paid tax in the United States on the sums awarded for just satisfaction and for costs and expenses. This information has been transmitted to the authorities.

General measures: The European Court pointed out that the Russian Federation, when it acceded to the Council of Europe, undertook to abolish the restriction on international travel for private purposes (§50 of the judgment).

• Information provided by the Russian authorities: On 31/03/2007 the Ministry of Foreign Affairs submitted to the government a report on the results of the consideration of citizens’ complaints concerning the restriction of their right to leave the country by a special inter-agency commission in 2006. It has also been proposed to set up a special working group with view to bringing the relevant legislation in line with the requirements of the Convention.

After considering this report, the government decided to submit the issue of improving Russian legislation to the Inter-agency Commission on the Protection of State Secrets created on 6/10/2004 by the Presidential Decree No.1286.

In August 2007 this commission instructed the Ministry of Foreign Affairs to submit to the Federal Security Service concrete proposals concerning the amendments to the legislative and regulatory framework governing the right of citizens who have access to state secrets to travel abroad.

In the meantime, these proposals are being examined by a special working group set up within the Inter-agency Commission on the Protection of State Secrets.

In addition, the Ministry of Foreign Affairs prepared an analysis of similar legislation and practices in a number of other countries. In September 2007, this analysis was also submitted to the Federal Security Service.

• Information is awaited on the progress of the activities of the special working group created within the Interagency Commission on the Protection of State Secrets.

On 21/11/2007 the judgment was sent out to all courts, together with a letter from the Deputy President of the Supreme Court of the Russian Federation.

• Information is awaited on the publication of the judgment of the European Court.

14139/03           Bolat, judgment of 05/10/2006, final on 05/01/2007[83]

                       - 8 cases concerning extradition[84]

38411/02          Garabayev, judgment of 07/06/2007, final on 30/01/2008

42443/02          Eminbeyli, judgment of 26/02/2009, final on 26/05/2009

2947/06            Ismoilov and others, judgment of 24/04/2008, final on 01/12/2008

13476/04          Khudyakova, judgment of 08/01/2009, final on 08/04/2009

42502/06          Muminov, judgment of 11/12/2008, final on 04/05/2009

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

72881/01          Moscow Branch of the Salvation Army, judgment of 05/10/2006, final on 05/01/2007[87]

18147/02          Church of Scientology Moscow, judgment of 05/04/2007, final on 24/09/2007[88]

30160/04           Dzhavadov, judgment of 27/09/2007, final on 27/12/2007[89]

35082/04           Makhmudov, judgment of 26/07/2007, final on 26/10/2007[90]

                       - 8 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

37406/03           Dyundin, judgment of 14/10/2008, final on 14/01/2009

14888/03           Godlevskiy, judgment of 23/10/2008, final on 06/04/2009

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

34736/03           Obukhova, judgment of 08/01/2009, final on 08/04/2009

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]

10877/04           Kuznetsov Sergei, judgment of 23/10/2008, final on 23/01/2009[94]

7672/03            Ponomarev, judgment of 15/05/2008, final on 15/08/2008

The case concerns a violation of the applicant’s right to access to a court due to the domestic courts’ failure to examine his allegation that he had been infected with tuberculosis while detained on remand (violation of Article 6§1).

The applicant brought an action against the Ministry of Finance of the Russian Federation, seeking to recover lost wages and to obtain compensation for his allegedly unlawful detention. He also claimed damages for his alleged contamination while in detention. The first-instance court held that the applicant’s pre-trial detention had been lawful but did not pronounce upon the alleged contamination.

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

According to the information provided by the Russian authorities, the applicant may still re-submit a claim concerning his alleged contamination to domestic courts. They indicated that claims concerning damage to health are not subject to any time-limit.

The applicant has not yet lodged such a claim.

• Information would be useful as to whether the applicant has submitted such a claim.

General measures: The Russian authorities have indicated that the judgment was sent by the Russian Government Agent to the President of the Supreme Court of the Russian Federation, to the President of the Supreme Court of the Komi Republic, to the President of the Constitutional Court of the Russian Federation, to the President of the Supreme Commercial (Arbitration) Court of the Russian Federation and to the Representative of the President of the Russian Federation in North-Western district.

The judgment was also sent out with a circular letter from the Deputy President of the Supreme Court of the Russian Federation to all courts. According to the information provided by the Supreme Court of the Komi Republic, the judgment was discussed at a meeting with judges of the Republic. Their attention was drawn to their obligation resulting from the Convention as interpreted by the European Court while considering claims submitted to them.

• Information is awaited on the publication of the judgment of the European Court in Russian.

33307/02           Galich, judgment of 13/05/2008, final on 26/01/2009

The case concerns a violation of the applicant’s right to a fair trial due to the appeal court’s decision, taken of its own motion, to reduce the amount of statutory interest awarded to him.

Article 333 of the Civil Code as interpreted by Joint Ruling adopted by the Supreme Court and the Supreme Commercial Court No. 13/14 of 8/10/1998 vests courts with discretionary power to reduce the amount of interest in line with the real losses suffered by the creditor. In the applicant’s case, the first-instance court did not apply Article 333. Neither of the parties to the proceedings raised this issue at the appeal stage. The European Court found that by depriving the parties of an opportunity to be heard on the issue which involved a complex assessment of questions of fact, the appeal court failed to exercise its discretion in a manner consistent with the Convention’s requirements (violation of Article 6§1).

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

• Information is awaited as to whether the applicant may request the re-opening of proceedings following the European Court’s judgment.

General measures: It would appear that the violation was due to the practice of domestic courts which, when applying Article 333 of the Civil Code, do not invite the parties to the proceedings to present their arguments in this respect.

• Information is awaited on the publication of the European Court’s judgment and its disseminationin particular to all courts, possibly together with a circular letter of the Supreme Court.

- 2 cases concerning the unfairness of certain criminal proceedings due to courts’ failure to appoint counsel for the applicants[95]

15435/03           Shulepov, judgment of 26/06/2008, final on 01/12/2008

40631/02           Timergaliyev, judgment of 14/10/2008, final on 14/01/2009

- 2 cases mainly concerning the violation of the right to a fair trial on account of the recharacterisation of the charges against the applicants at a late stage[96]

19692/02           Seliverstov, judgment of 25/09/2008, final on 25/12/2008

10709/02           Abramyan, judgment of 09/10/2008, final on 09/01/2009

- 2 cases concerning the violation of the right to a fair trial since the applicants’ cases were not determined by a tribunal established by law[97]

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[98]

66941/01           Zagorodnikov, judgment of 07/06/2007, final on 07/09/2007[99]

- 3 cases concerning the failure to summons the accused in criminal supervisory-review proceedings[100]

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

67099/01           Solodyuk, judgment of 12/07/05, final on 30/11/05[101]

- 13 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

34489/05           Litvinova, judgment of 14/11/2008, final on 14/02/2009

33132/02           Metelitsa, judgment of 22/06/2006, final on 23/10/2006

8630/03            Prokopenko, judgment of 03/05/2007, final on 03/08/2007

1385/04            Sazonov, judgment of 16/10/2008, final on 16/01/2009

4537/04            Sidorova, judgment of 14/02/2008, final on 14/05/2008

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

- 13 cases mainly concerning quashing of final judgments on the basis of newly discovered circumstances[103]

69529/01           Pravednaya, judgment of 18/11/2004, final on 30/03/2005

69524/01          Bulgakova, judgment of 18/01/2007, final on 18/04/2007 and of 10/06/2008 – Friendly settlement

69533/01           Kondrashina, judgment of 19/07/2007, final on 30/01/2008

73294/01           Kumkin and others, judgment of 05/07/2007, final on 30/01/2008

67579/01           Kuznetsova, judgment of 07/06/2007, final on 12/11/2007

944/02              Levochkina, judgment of 05/07/2007, final on 31/03/2008

76676/01           Maltseva, judgment of 19/06/2008, final on 19/09/2008

852/02              Smirnitskaya and others, judgment of 05/07/2007, final on 31/03/2008

11589/04           Tetsen, judgment of 03/04/2008, final on 03/07/2008

25580/02           Vedernikova, judgment of 12/07/2007, final on 31/03/2008

842/02              Volkova and Basova, judgment of 05/07/2007, final on 31/03/2008

77478/01           Yerogova, judgment of 19/06/2008, final on 19/09/2008

560/02              Zhukov Nikolay, judgment of 05/07/2007, final on 31/03/2008

- 11 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (former military)

63501/00          Konovalov, judgment of 23/03/2006, final on 13/09/2006

27995/05           Bogunov, judgment of 23/10/2008, final on 23/01/2009

24435/04           Bormotov, judgment of 31/07/2008, final on 31/10/2008

38872/02           Galkin Ivan, judgment of 20/11/2008, final on 20/02/2009

9593/06            Gorbunov, judgment of 04/12/2008, final on 04/03/2009

25971/03           Kotsar, judgment of 29/01/2009, final on 29/04/2009

16048/06           Lotorevich, judgment of 22/01/2009, final on 22/04/2009

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

13979/03           Sladkov, judgment of 18/12/2008, final on 18/03/2009

40078/03           Tolstov, judgment of 26/06/2008, final on 26/09/2008

                        Interim Resolution CM/ResDH(2009)43

These cases concern violations of the applicants' right to a court due to the Russian authorities' failure over several years to enforce final judicial decisions ordering them to provide the applicants with flats for which they were eligible as former servicemen (violations of Article 6§1 and of Article 1 of Protocol No. 1). A number of cases concern the lack of an effective remedy against non-enforcement or delayed enforcement of domestic judicial decisions (violations of Article 13).

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicants as a result of delays in the enforcement of the court decisions in their favour.

• Information is awaited on the enforcement of domestic judicial decisions delivered in the applicants’ favour in the Konovalov, Kotsar and Sladkov cases.

General measures: A number of measures which are being taken by the Russian authorities to comply with these judgments were summarised in the Interim Resolution ResDH(2009)43 adopted by the Committee of Ministers at its 1051st meeting (March 2009).

            1) Measures under way to ensure proper implementation of a substantial right

• Information provided by the Russian authorities: Article 15 (point 6) of the Law No4338-1 of 22/01/1993 on the Status of Servicemen provides in particular that former members of the armed forces shall be provided with housing within 3 months as from the date they were put on the housing waiting-list. However, the legislator did not specify the sources of the funding for the construction or purchase of such housing.

On 27/05/1998, a new Federal Law No76-FZ on the Status of Servicemen was adopted. Servicemen’s housing rights are now governed by Article 15 of this Law.

- Current legislative framework: It would appear that, according to the legislation in force, servicemen and former servicemen may be granted either accommodation through the conclusion of a social tenancy contract or by a state housing certificate which represents state housing aid from the federal budget for the purchase of a flat.

The implementation of these rights is subject to the sub-programme “Execution of the state’s obligations to provide housing for different categories of persons determined by federal legislation” of the federal housing programme for 2002-2010. On 21/03/2006, the government approved Rules on issue and payment of state housing certificates for the purposes of implementing this programme. On the proposal of the Ministry of Defence, in 2007, the average amount of state housing aid provided through state housing certificates was increased by more than 50%.

• Information is awaited on the current amounts paid according to these certificates.

- Current statistics: In 2006 and 2007, the number of persons waiting for the provision of housing decreased by 27 500. Also, according to the statistics of the Federal Agency for construction and housing, during 1998-2007, 44 500 families of former servicemen improved their accommodation thanks to the state housing certificates. In addition, a construction plan for servicemen’s housing in 2008-2011 has been approved by the government. According to the forecasts of the Ministry of Defence, this plan will contribute to providing 167 000 families of servicemen with housing.

- The particular problem of servicemen dismissed from the armed forces before 01/01/2005: This problem arose with regard to servicemen who were dismissed from the armed forces and put on the waiting list before 1/01/2005. According to federal law No 122-FZ of 22/08/2004, these people were only entitled to state housing certificates. This Law removed the possibility previously granted to local administrations to provide them directly with accommodation.

The Law of 22/08/2004 was quashed by the Decision No. 5-P of 5/04/2007 of the Constitutional Court due to the limitation of the right of the persons dismissed before 1/01/2005 to receive only state housing certificates as compared to those of persons dismissed after 1/01/2005, who are also entitled to accommodation on the basis of social tenancy agreements.

Following the decision of the Constitutional Court, the Ministry of Defence prepared the relevant amendments which are expected to be submitted to Parliament during the second and third quarters of 2008.

• Information is awaited on their progress.

            2) Interim measures taken pending the adoption of the aforementioned measures: To reinforce the social protection of members of the armed forces, the Ministry of Defence has prepared proposals to increase the amounts of compensation paid to these persons so that they can rent houses while waiting for the provision of housing.

• Information is awaited as to whether these proposals were accepted and on the current amount of such compensation.

            3) Domestic remedy in case of excessive length of enforcement proceedings: On 15/01/2009 the European Court delivered a pilot judgment in the case Burdov No. 2 (33509/04, Section 4.3) concerning the prolonged non-enforcement of domestic judicial decisions delivered in favour of a Chernobyl victim. This judgment became final on 4/05/2009. In this judgment, the Court in particular required the respondent state to introduce a remedy to secure effective redress for violations of the Convention on account of the state authorities' prolonged failure to comply with judicial decisions delivered against the state or its entities. The examination of general measures in this respect is being pursued in the framework of the execution of this pilot judgment.

            4) Publication and dissemination: All judgments are regularly disseminated to all authorities concerned together with circular letters.

- Case concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (judges)

11931/03          Teteriny, judgment of 30/06/2005, final on 30/09/2005

The case concerns violations of the applicants' right of access to a court due to the Russian authorities' failure over several years to enforce final judicial decisions ordering them to provide the applicants with a flat for which they were eligible as judges according to Article 19, paragraph 3, of the Law On the Status of Judges of 26/06/1992 (violations of Article 6§1 and of Article 1 of Protocol No. 1).

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicants as a result of delays in the enforcement of the court decisions in their favour.

As regards the execution of the judgment of 26/09/1994 of the Ezhvinskiy District Court ordering the Yemva Town Council to provide the applicants with the flat measuring no less than 65 m², the Russian authorities provided the following information: On 16/12/2005, the Ezhvinskiy District Court approved the settlement agreement signed between the Town Administration and the applicants’ representative. According to the terms of this agreement, the Town Council was to provide the applicants with a flat measuring 83,1 m², of which 57,6 m² of living surface, with subsequent transfer of property to the applicants. The difference of 7 m² of living surface was to be compensated by the sum of 500 000 RUR. On 22/12/2005, this sum was transferred to the applicant as well as the property on the apartment. The enforcement proceedings were accordingly discontinued.

General measures: The Federal Law of 22/08/2004 No 122-FZ, in force since 1/01/2005, modified Article 19, paragraph 3, of the aforementioned Law on the Status of Judges by relieving local administrations of the duty to provide judges with housing. According to these amendments, judges are now to be provided with housing at the expense of funds allocated to courts by the federal budget and according to the procedure approved by the government.

Pending the setting up of this procedure, in 2005 the government established a provisional procedure for providing judges, prosecutors and investigators with housing (government decree of 6/12/2005 No. 737). This procedure was extended in 2006 and in 2007 by government decrees No. 440 of 17/07/2006 and No. 126 of 23/02/2007. It was proposed to extend this procedure in 2008.

As from 2007, the aforementioned funds from the federal budget are allocated within the Federal Programme On the improvement of the Russian judicial system (for more details on this programme, see the Kormacheva group of cases, Section 4.2).

• Latest developments: According to the government decree No.737 mentioned above, the Ministry of Regional development, the Ministry of Finance, the Ministry of Economic Development and Trade, the Ministry of Justice and the Judicial Department of the Supreme Court of the Russian Federation prepared drafts of appropriate legislative acts. According to governmental order No. 320-p of 22/03/2007, a draft Federal Law modifying Article 19 of the Federal Law on Status of Judges was submitted to the Parliament. It is due to be examined in the second quarter of 2008.

• Information is awaited on the progress of this draft law.

- 4 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

Housing disputes (Tchernobyl)

41302/02          Malinovskiy, judgment of 07/07/2005, final on 07/10/2005

21074/03           Makarov, judgment of 25/01/2007, final on 25/04/2007

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

                        Interim Resolution CM/ResDH(2009)43

These cases concern violations of the applicants' right to a court due to the Russian authorities' failure over several years to enforce final judicial decisions ordering them to provide the applicants with flats for which they were eligible as former Chernobyl workers (violations of Article 6§1 and of Article 1 of Protocol No. 1).

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicants as a result of delays in the enforcement of the court decisions in their favour. The domestic judgments delivered in the applicants’ favour in the Malinovskiy, Mikryukov and Nagovitsyn cases were enforced.

• Information is awaited as to whether the domestic judgment delivered in the applicant’s favour in the Makarov case has been enforced.

General measures: A similar sub-programme based on state housing certificates for the Chernobyl workers was adopted for 2002-2010 (for more details see the Konovalov group of cases, Section 4.2).

- 37 cases concerning the failure or substantial delay by the administration in enforcing judgments relating to the social benefits of former Chernobyl workers

Resolution ResDH(2004)85, Interim Resolution CM/ResDH(2009)43

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

35774/04           Arulepp, judgment of 06/11/2008, final on 06/02/2009

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

63995/00           Kukalo, judgment of 03/11/2005, final on 03/02/2006

11319/04           Kukalo No. 2, judgment of 24/07/2008, final on 24/10/2008

43209/04           Ledovkin, judgment of 21/02/2008, final on 21/05/2008

35893/04           Levin Viktor, judgment of 25/09/2008, final on 25/12/2008

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

24664/02           Siverin, judgment of 04/12/2008, final on 04/03/2009

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

34938/04           Suslin, judgment of 23/10/2008, final on 23/01/2009

39013/05           Svitich, judgment of 31/07/2007, final on 31/10/2007

40543/04           Voronin, judgment of 04/12/2008, final on 04/03/2009

38845/04           Zubarev, judgment of 02/10/2008, final on 02/01/2009

These cases concern violations of the applicants' right to a court due to the Russian social authorities' failure over several years to enforce final judicial decisions ordering them to pay certain compensation and allowances (with subsequent indexation) for health damage sustained by the applicants during emergency and rescue operations at the Chernobyl nuclear plant and damages for their delayed enforcement.

Notwithstanding the measures adopted by the Russian authorities to solve this structural problem (for more details see Resolution ResDH(2004)85 adopted by the Committee of Ministers to close the Burdov case), the European Court found that the applicants had not been provided at the domestic level with adequate redress for the delays in the enforcement of the court decisions in their favour (violations of Article 6§1 and of Article 1 of Protocol No. 1).

In the Belyayev, Siverin, Viktor Petrov judgments, the European Court also found that there was no remedy which could have provided the applicant with adequate redress for the continued non-enforcement of the judgments in his favour (violations of Article 13).

Individual measures: The European Court has awarded just satisfaction in respect of the damage suffered by the applicants as a result of delays in the enforcement of the court decisions in their favour. In almost all cases, the domestic judgments delivered in the applicants’ favour have been enforced.

• Information is awaited on the enforcement of the domestic judgments delivered in the Arulepp and Siverin cases.

General measures: The Russian authorities indicated that the main grounds for the applications lodged before the European Court in these cases were:

- shortcomings in the legislative mechanism providing for the indexation of this category of persons;

- lack of consistency between the judicial practice and the executive bodies regarding the manner in which this indexation should have been done;

- lack of a centralised payment procedure for different compensations and allowances (these payments were to be taken from the federal budget but made by different social bodies at the level of the subdivisions of the Russian Federation); or

- delays in awarding the relevant funds from the federal budget for the execution of this kind of judgments.

The authorities have taken and are currently taking a number of measures, legislative and other, with a view to ensuring consistency between legislation and practice and to simplifying the payment procedures. In particular,

- a number of measures have been taken to codify the existing legislation, taking into account the judicial practice of the Supreme Court of the Russian Federation and of the Constitutional Court;

- funds were allocated in the state federal budget for timely compliance with judgments regarding the payment of compensation;

- the issue of whether it is possible to concentrate in the hands of one financial body all payments due to this category of persons is currently being examined, as well as the possibility of setting up an appropriate control mechanism for the proper execution of these payment obligations.

The Russian authorities provided the Secretariat with relevant statutes and regulations.

At the 1051st meeting (March 2009), the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)43 in the Timofeyev group of cases which contains in particular a summary of the measures which are being taken by the Russian authorities to improve the situation of the Chernobyl victims.

On 15/01/2009 the Court delivered a pilot judgment in the case Burdov No 2 (33509/04, Section 4.3) concerning the prolonged non-enforcement of domestic judicial decisions delivered in favour of a Chernobyl victim. This judgment became final on 4/05/2009. In this judgment, the Court in particular required the respondent state to introduce a remedy to secure effective redress for violations of the Convention on account of the state authorities' prolonged failure to comply with judicial decisions delivered against the state or its entities. The examination of general measures is being pursued in the framework of the execution of this pilot judgment.

All judgments are regularly sent out to all national authorities concerned.

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

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

34171/04           Guber No. 2, judgment of 23/10/2008, final on 23/01/2009

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

44436/06           Kurbatov, judgment of 02/10/2008, final on 02/01/2009

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

5507/06            Marchenko, judgment of 09/10/2008, final on 09/01/2009

13119/03           Markova, judgment of 08/01/2009, final on 08/04/2009

28602/02           Maruseva, judgment of 29/05/2008, final on 29/08/2008

30019/05           Mikhaylovich, judgment of 12/02/2009, final on 05/06/2009

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

21088/06           Orlova, judgment of 09/10/2008, final on 09/01/2009

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

16004/04           Rypakova, judgment of 08/01/2009, final on 08/04/2009

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

34104/04           Yerkimbayev, judgment of 23/10/2008, final on 23/01/2009

70190/01           Zimenko, judgment of 23/06/2005, final on 23/09/2005

All these cases concern the excessive length of civil proceedings regarding employment, property and housing disputes (violations of Article 6§1). Some of the cases also concern the lack of an effective remedy to expedite the proceedings or provide the applicants with adequate redress for delays incurred (violations of Article 13).

The excessive length of proceedings was inter alia due to:

-           understaffing and the work overload of courts,

-           lack of automatic time-limits,

-           repeated procedural omissions,

-           poor technical conditions of court buildings,

-           numerous adjournments of hearings, due in particular to the failure to notify the claimants about the hearings in due time.

Individual measures: In almost all cases, the European Court awarded just satisfaction in respect of non-pecuniary damage and domestic proceedings have been brought to an end.

• Information is awaited as to whether proceedings are closed in the Kolomiyets case.

General measures: The Russian authorities have taken and are taking a number of comprehensive measures to ensure the reasonable length of judicial proceedings:

1) Measures to improve the material conditions for the functioning of Russian courts:

The implementation of the Federal Programme on the development of the judicial system of the Russian Federation for 2002-2006 has already contributed to the improvement of material conditions for the functioning of Russian courts. The same Federal programme for 2007-2011 provides for 48 billion Roubles. It is also to be noted that, according to Article 31§1 of the Federal Constitutional Law on the Judicial System of the Russian Federation, all issues related to the functioning of courts of general jurisdiction depend on the Judicial Department of the Supreme Court of the Russian Federation.

a) Measures being taken in the framework of these Programmes:

The Russian authorities provided extensive information, of which the main points may be summarised as follows:

- New judges are being recruited and trained and computer systems for the judiciary are being developed. The number of judges and their assistants was also significantly increased (in 2002-2006 more than 3 000 judges and 6 000 assistants) as well as their salaries. Also, a new post of judges’ aide was created and 13 775 persons were accordingly recruited.

- The reintroduction in the Russian judicial system of the justice of the peace contributed to reducing the workload of federal judges. Justices of the peace are now dealing with 39,4% of criminal cases and 73,1% of civil cases.

- As from 2001, 45 billion Roubles were provided in the framework of this programme, which resulted in the construction of 300 new court buildings and the renovation of 900 old buildings.

- On 27/12/2007, the Plenum of the Supreme Court adopted Ruling No. 52 on deadlines for the examination by courts of the Russian Federation of criminal, civil and administrative cases, drawing lower courts' attention to important shortcomings of judicial decisions regarding the procedural time-limits for examining cases and announcing a number of measures to remedy them, e.g. the monitoring of judicial practice, etc.

- The rules of territorial jurisdiction of courts are about to be changed, so that proceedings are more geographically spread instead of being concentrated in some areas.

- The authorities are planning to introduce special divisions within courts composed of professional lawyers who would deliver preliminary consultations to citizens and to advise them on the course of action.

- Statistics: In 2004, 12,8% of cases were dealt with by district courts outside the procedural time-limits. In 2005, the number of such cases amounted to 10,9% and, in 2006, to 8,9%. Consequently, in 2006 the workload of a district judge diminished as compared to 2001 from 8 to 3,9 criminal cases and from 24,4 to 10,7 civil cases.

• Additional information awaited: The Russian authorities are invited to keep the Secretariat regularly informed of progress in adopting these measures and to provide updated comparative statistical data on the practical impact of all the aforementioned reforms on the length of judicial proceedings. More details would also be useful on the training and awareness raising of judges and on the role of the Academy of Justice in this respect.

            b) Other measures taken:

Defendants' failure to attend hearings: In the Rybakov case, the length of proceedings was mostly due to the defendants' failure to attend the hearings. As the defendants were the Governor of St Petersburg and St. Petersburg Committee for Housing Policy, the Government of St. Petersburg issued on 04/07/2006 a special Decree “On measures to improve the legal support of the executive organs' activities in St. Petersburg” aiming in particular to ensure the proper and timely representation of the Governor and executive organs of St. Petersburg in courts.

2) Remedies available or envisaged before domestic courts in case of excessive length of judicial proceedings

a) Disciplinary liability of judges:

• Information provided by the Russian authorities:Each case of excessive length of proceedings gives rise to a disciplinary inquiry by the President of the court concerned and by the High qualification commission of judges of the Russian Federation. If it is established that the judge’s attitude contributed to the delays, disciplinary sanctions shall be pronounced.

• Assessment: Although these measures are welcomed as a part of a general monitoring mechanism, it is recalled that, in the Kormacheva judgment, the European Court considered that the disciplinary action against the judge responsible for delays before the higher judicial or other authorities could not constitute an effective remedy for the purposes of Article 13 (see § 61-62 idem).

            b) State civil liability:

Article 1070§2 of the Civil Code provides that damages inflicted in the course of the administration of justice shall be compensated provided that the fault of the judge has been established by a final judgment delivered by a criminal court.

On 25/01/2001, the Constitutional Court extended the possibility of establishing the fault of judges, under this Article, to civil courts. However it limited judges' responsibility under this provision to the fault committed when taking procedural decisions, e.g. decisions adjourning or scheduling hearings. The damages thus caused shall be compensated by the Treasury on the basis of Article 1069 of the Civil Code.

The Constitutional Court invited the Parliament to adopt special legislation providing courts competent to deal with these claims and a compensation procedure.

c) Draft law on setting up an effective remedy before domestic courts in case of excessive length of proceedings

The draft constitutional law setting up a remedy before domestic courts in case of excessive length of proceedings and execution proceedings was prepared by the Supreme Court of the Russian Federation. On 26/09/2008 the Supreme Court of the Russian Federation submitted the draft law to the Parliament.

In the meantime, a special working group involving representatives of the main state agencies has been set up upon the President's mandate rapidly to find an appropriate solution with a view to introducing a remedy required by the Convention in the Russian legal system. This draft law will provide compensatory and acceleratory remedies against the excessive length of judicial and enforcement proceedings.

Following the authorities’ request, the Secretariat of the Council of Europe delivered its comments on the preliminary version of this draft law, which have been positively received by the competent Russian authorities. This draft law, once finalised, will be submitted to the Parliament.

• Information is awaited on the progress of this draft law.

            3) Experience of other countries: The Russian authorities may wish to consider the experience of other countries which took comprehensive general measures to solve the problem of excessive length of civil proceedings (e.g. Interim Resolutions ResDH(2005)114 and ResDH(2004)72 concerning certain judgments against Italy and Resolution ResDH(2005)60 concerning the judgment in Horvat against Croatia). The authorities' attention was also drawn to the need to ensure the availability of effective domestic remedies (preventive and/or compensatory) at the national level, as emphasised in Recommendation Rec(2004)6 of the Committee of Ministers on the improvement of domestic remedies.

            4) Publication and dissemination: Several of these judgments have been translated and published in the Bulletin of the European Court and sent out to all courts with a circular letter by the Deputy President of the Supreme Court of the Russian Federation.

                        - Case concerning confiscatory measures taken without precise legal justification

30352/03           İsmayılov, judgment of 06/11/2008, final on 06/04/2009

The case concerns the violation of the applicant's right to the peaceful enjoyment of his possessions due to confiscatory measures taken against him in November 2002. On arrival in Moscow the applicant was charged with smuggling for not declaring the 21,348 US dollars (approximately 17,059 euro) he was carrying with him, proceeds of the sale of a flat he had inherited in Baku. He was found guilty as charged and given a suspended sentence of six months’ imprisonment; the money was also confiscated.

The European Court noted that the lawful origin of the money had not been in dispute and that the applicant had had no criminal record and had not been suspected of money laundering, corruption or other serious financial offences. Since he had already been punished for the smuggling offence with a criminal conviction; the desired deterrent effect had therefore already been achieved and the Court was not convinced that it was necessary to take away his money. Accordingly, the Court concluded that the confiscation measure had been excessive and disproportionate in the circumstances (violation of Article 1 of Protocol No. 1).

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

• Assessment: No further individual measure appears to be necessary.

General measures: The judgment has been sent out to the Supreme Court of the Russian Federation, to the Constitutional Court of the Russian Federation, to the Federal Custom Service and to the Prosecutor General’s Office.

On 20/05/2009 the judgment was sent out to the judges of the Civil Chamber of the Supreme Court. On 15/05/2009 the judgment was sent together with a circular letter of the Vice-President of the Supreme Court to all Presidents of Regional Courts.

On 20/05/2009 the judgment was sent by a letter of the Head of the Main Customs Investigating Directorate to all its subordinates.

• The need for further general measures is currently being assessed by the Secretariat.

                       - 2 cases concerning violations of the right to home due to industrial pollution[104]

55723/00          Fadeyeva, judgment of 09/06/2005, final on 30/11/2005

53157/99+        Ledyayeva, Dobrokhotova, Zolotareva and Romashina, judgment of 26/10/2006, final on 26/03/2007

                       CM/Inf/DH(2007)7

- 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.

- 22 cases against Serbia

2361/05            Vrenčev, judgment of 23/09/2008, final on 23/12/2008

The case concerns the unlawfulness of the applicant’s prolonged pre-trial detention without any judicial review in 2004 in Belgrade. The applicant was only brought before a judge 20 days after his arrest, not to examine the lawfulness of his detention but to judge him (violation of Article 5§3).

The case also concerns the violation of the applicant’s right “to be released pending trial”, which could have been “conditioned by [his] guarantees to appear” in court (§77). The applicant filed a motion seeking release on bail or alternatively confinement to his residence. These were apparently never considered by the court. Ten days later, he was merely fined for a drug offence, which was a lenient sentence for such an offence and, given the circumstances, certainly the only one which could have been anticipated (violation of Article 5§3).

The European Court noted that whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being always incumbent on the national authorities duly to consider such alternatives. It also noted that where a lighter sentence may be anticipated, the reduced incentive for the accused to abscond should also be taken into account (§76). 

The case also concerns the lack of diligence in review proceedings before the Supreme Court initiated by the applicant with regard to the initial detention order and the absence of an oral hearing. It took more than 6 days for the applicant’s lawyer to receive the Supreme Court’s decision after the appeal had been correctly lodged, in breach of the 48-hour time-limit prescribed by the Code of Criminal Procedure (violation of Article 5§4).

Finally, the case also concerns the violation of the applicant’s enforceable right to compensation with regard to the unlawful detention (violation of Article 5§5).

The European Court noted that since the Serbian Supreme Court deemed the applicant’s detention lawful, no domestic case-law existed to the effect that the applicant could obtain compensation for detention in breach of the Convention under these circumstances (§93).

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

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

General measures:  The European Court found a similar violation in the Milošević case (31320/05, Section 2.2). 

▪ Information provided by the Serbian authorities: The European Court's judgment has been translated into Serbian and published in the Official Gazette (No. 17 of 14/10/2008) as well as on the website of the Government Agent (www.zastupnik.gov.rs). The judgment was also published on the Internet page of the Paragraf legal magazine, with expert comments. The Government Agent forwarded the judgment to the Supreme Court of Serbia requesting its distribution to all courts. He also made several public statements relating to the judgment.

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

- 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 their possessions due to 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 the 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 been so, 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 entity, 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: 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, 15/01/2009, 06/07/2009 and 05/10/2009): The domestic court has 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 was informed of the situation and is entitled to indicate another of the debtor’s assets should any be free of prior encumbrance. The first public auction of the assets concerned was scheduled for 13/04/2009. Since the first public auction has failed, the second one was scheduled for 14/05/2009. However, it also failed since no prospective buyer appeared. A third auction has been scheduled for 06/10/2009.

• Information is awaited on further developments and measures taken or envisaged to ensure full execution of this judgment.

2) Marčić: 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):

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.

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.

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. PROCEEDINGS AGAINST STATE-OWNED ENTERPRISES

2269/06+          Kačapor and others, judgment of 15/01/2008, final on 07/08/2008 

35835/05*         Crnišanin, judgment of 13/01/2009, final on 13/04/2009

42619/04           Vlahović, judgment of 16/12/2008, final on 16/03/2009

These cases concern violations of the applicants’ right to a fair trial due to the authorities’ failure to take the measures needed to enforce domestic judgments ordering socially-owned enterprises to pay salary arrears and employment benefits (violations of Article 6§1).

These cases also concern violations of the applicants’ right to the peaceful enjoyment of their possessions in this regard (violations of Article 1 of Protocol No. 1).

The European Court noted that socially-owned enterprises were not sufficiently independent, either institutionally or operationally to absolve the state 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 in Kačapor; §§110-111, 124 in Crnišanin). The European Court also noted that the state cannot cite either the lack of own funds or the indigence of debtors predominantly funded by social capital as an excuse for not enforcing final judgments (§114 in Kačapor). 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 in Kačapor).

The European Court found that the Serbian judicial authorities failed to enforce domestic court decisions as a result of:

- failure of the enforcement court to proceed ex officio with other means of enforcement in case of impossibility of those proposed by parties;

- failure of the Central Bank to request the opening of insolvency proceedings in respect of those corporations whose bank accounts have been “blocked” due to outstanding debts within a specified 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: At least 295 similar applications are currently pending before the European Court and the number of such applications is continuously growing.

• Information provided by the Serbian authorities (letter of 02/10/2009):

Statistics: 2493 socially-owned companies employing over 350 000 people were privatised between 2002 and 2009. The status of nearly 150 000 persons has been resolved by way of social programmes (see below).

Action plan: The government has set up a working party to draw up a comprehensive solution for employees of socially-owned companies whose employment-related entitlements have not been regularly paid. This plan was expected to be adopted by 10/10/2009.

Duty to discharge pre-privatisation, employment-related debts: Pursuant to the Privatisation Act, the buyer of an enterprise undergoing privatisation is responsible for all pre-privatisation debts in respect of unpaid salaries and employment benefits. If a socially-owned company is undergoing restructuring prior to its privatisation, it is the state which is obliged to settle outstanding debts in respect of employment-related contributions, but not in respect of the salary arrears. Special social programmes are implemented for the benefit of employees of all entities undergoing privatisation.

Obligation of state authorities to bring bankruptcy or winding up proceedings in respect of socially-owned companies: The Privatisation Act also provides for compulsory winding up of non-privatised socially-owned companies if not offered for sale by 31/12/2008 and if a third offer for sale proves unsuccessful. Pursuant to a decision of 09/07/2009 by the Serbian government, the competent authorities, including the Tax Authority and the Development Fund, should initiate bankruptcy procedures in respect of socially-owned companies if permitted by law.

Between 09/07/2009 and 28/09/2009, bankruptcy proceedings have been initiated in respect of 170 socially-owned companies, while winding-up proceedings have been initiated in respect of 285.

Draft Insolvency Act: The draft Insolvency Act is in the process of being adopted. Under to its provisions, an insolvency judge will be obliged ex officio to decide to open preliminary insolvency proceedings in respect of any legal entity whose bank accounts have been “blocked” due to the outstanding debts within a specified period. The Central Bank will be obliged publish information on such legal entities.

• Assessment: It appears that the Serbian authorities have taken steps to define a comprehensive solution for employees whose employment-related contributions have not been regularly paid in the past. This is a positive development. It also appears that buyers of socially-owned companies are obliged to discharge employment-related debts incurred before privatisation. The Serbian authorities have also taken steps to initiate bankruptcy or winding-up procedures in respect of socially-owned companies which cannot be privatised. Such measure should help to eliminate one cause of violation identified by the European Court, namely the failure of the Central Bank to request reopening of insolvency proceedings under certain circumstances. The draft Insolvency Act and the special decision of the Serbian government on this matter are also intended to resolve this issue. However, it appears that under Serbian law the state is not held responsible for salary arrears of the socially-owned companies undergoing restructuring but only for the unpaid employment contributions. This is not consistent with the European Court’s findings in these cases. In addition, the Serbian authorities have provided no information on measures taken or envisaged to remedy the failure by enforcement courts to proceed ex officio with alternative means of enforcement. In view of the very large number of applications pending before the European Court against Serbia concerning salary arrears and employment-related benefits owed by socially-owned companies, the Serbian authorities are encouraged rapidly to define and implement adequate measures in this respect.

• Information is thus awaited as follows:

- Further developments in respect of the measures announced, in particular the action plan and the legislative changes; 

- Measures taken or envisaged to remove the underlying causes of the non-enforcement of domestic judgments identified in these cases; 

- Measures taken or envisaged to ensure that enforcement courts proceed ex officio with alternative means of enforcement;

- The number of socially-owned companies which still exist as well as the number of their employees. In this respect, it would be particularly useful to obtain the number and the aggregate debt value of all binding and non-executed judgments concerning unpaid salary arrears and employment-related benefits in respect of socially-owned companies.

- Any measure taken or envisaged concerning unpaid salary arrears due to employees of socially-owned companies undergoing restructuring.

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 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 that in the context of taking possession of a property, 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 “Commercial matters”.

• Information provided by the Serbian authorities (letter of 15/07/2009): On 06/07/2009 the Supreme Court wrote to all courts on to the recurring problem of misplacing court files, which had protracted the length of proceedings in the case of Bulović and in two other cases communicated to the respondent state. It asked lower courts to maintain detailed records on the progress of all case files and to reconstruct any case file rapidly should it be lost, to avoid prolonging proceedings in the future.

• Assessment: In view of this information, no further general measure seems necessary concerning the misplacement of court files. However, general measures are still expected concerning non-enforcement of court decisions for other reasons.

 • Information is thus awaited on measures taken or envisaged to improve accuracy of the information contained in land registers to reduce the risk of non-enforcement on this account.

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

(i) Eviction orders in the context of a special “protected tenancy regime”

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 the applicant’s repossession of his flat. Domestic courts 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 concerning 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 this 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 the authorities' failure to abide by a final administrative decision within the context of an eviction order is examined, inter alia, in the case of Čeh (9906/04, Jevremović group Section 4.2).

• Information is awaited on the 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).

(ii) Demolition orders in the context of unauthorised construction

41760/04           Kostić, judgment of 25/11/08, final on 25/02/09

This case concerns the violation of the applicants' right to the peaceful enjoyment of their possessions due to the authorities' failure, since 1998, to enforce a final administrative decision ordering the demolition of an unauthorised construction, which affected a house co-owned by the applicants (violation of Article 1 of Protocol No. 1).

The European Court noted that the very existence of an unauthorised construction amounted to an interference with the applicants' property rights (§68) and that it was the state's responsibility to make use of all available legal means at its disposal to enforce a final administrative decision, even if it had been issued against a private party (§67).

Individual measures: The European Court held that the applicants' “pecuniary damage claim must be met by the government ensuring, through appropriate means, the speedy enforcement of the demolition order dated 2 September 1998” (§80).

• Information provided by the applicants (letter of 20/03/2009 and 29/05/2009): The applicants' lawyer indicated that the competent administrative authority decided on 09/03/2009 to adjourn sine die the enforcement of the demolition order of 02/09/1998 pending the termination of administrative proceedings subsequently initiated to obtain a building permit for the unauthorised construction. In fact, on 21/04/2009 the Serbian authorities ordered the applicants to demolish ”their” unauthorised construction. On 13/05/2009, the enforcement of the demolition order of 21/04/2009 was ordered against the applicants. This information was transmitted to the Serbian authorities on 24/03/2009 and 02/06/2009 together with the decisions forwarded by the applicants' lawyer.

• Information provided by the Serbian authorities (letter of 02/10/2009): Following the applicant’s complaint, the decision adjourning enforcement of the demolition order was quashed by the second-instance authority. Meanwhile, on 18/05/2009, the authorities declined to issue a building permit for the unauthorised construction at issue. This decision was appealed on 18/05/2009 and the proceedings are pending before the second-instance authority. Under Serbian law, the authorities may not proceed with the enforcement of a demolition order before the proceedings on the issue of the building permit are over. However, the Serbian government admitted certain difficulties in enforcing the demolition order and promised to continue its efforts to ensure its execution.

• Information is awaited on measures taken or envisaged to ensure speedy execution of the demolition order of 02/09/1998 as requested by the European Court.

General measures:

• Information is awaited on measures taken or envisaged to ensure enforcement of final administrative decisions in compliance with the Convention, in particular those concerning demolition orders in the context of unauthorised construction.

• 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.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 while the Court’s judgment in the Kostić case was also forwarded to the Ministry of Public Administration and Local Self-government with a view to further distribution to all administrative authorities. 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.

                        - 10 cases of excessive length of judicial proceedings and lack of an effective remedy

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. (Section 4.2).

2) Violation of right to respect of family life (excessive length of proceedings): See V.A.M. (39177/05, 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: See V.A.M. (Section 4.2). There are around 294 pending applications before the European Court concerning the excessive length of all types of civil proceedings.

D. LABOUR PROCEEDINGS

41513/05           Mikuljanac, Mališić and Šafar, judgment of 09/10/2007, final on 09/01/2008

17271/04           Cvetković, judgment of 10/06/2008, final on 01/12/2008

33029/05           Dorić, judgment of 27/01/2009, final on 27/04/2009

2637/05            Jovićević, judgment of 27/11/2007, final on 27/02/2008

29907/05           Stanković, judgment of 16/12/2008, final on 06/04/2009

26642/05           Stevanović, judgment of 09/10/2007, final on 09/01/2008

These cases concern the excessive length of labour proceedings (violations of Article 6§1) and lack of an effective remedy to expedite them (violations of Article 13) (except in Stanković). 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) as well as repeated financial expertise (§20 in Dorić) and remittals of the case (§12 in Dorić).

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: All the proceedings have been closed, except in the Dorić case (§16).

• Information provided by the Serbian authorities (letter of 01/10/2009): The Belgrade District Court rendered a judgment in the Dorić case on 30/04/2009. The case has been pending since 22/09/2009 before the Supreme Court on appeal on points of law.

• Information is awaited on acceleration of the domestic proceedings in the Dorić case.

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 and 01/10/2009): 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. In addition, the secondary regulation provides that a judge must resolve a minimum of 20 labour disputes per month. The Serbian authorities also indicated that the Ministry of Justice had no specific statistic data on average length of labour disputes. However, in 2008 the Supreme Court received 62 734 appeals in respect of the labour-related court decisions. Half of these were quashed, while around 18% were upheld. Also, in 2008 the Civil Department of the Supreme Court received 1 874 appeals on points of law in labour cases and dismissed 62% of them.

• Assessment: The information provided does not allow the Secretariat to make a conclusive assessment at this stage as to whether the measures taken concerning excessive length of labour proceedings are adequate. However, considering the number of judgments issued by the European Court in respect of Serbia concerning the excessive length of labour proceedings, it appears that this problem is still an issue in Serbia. 

• Information is thus awaited on statistics concerning the length of labour proceedings (total number of such proceedings, etc.) as well as on any other measure taken or envisaged to reduce the excessive length of labour proceedings.

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 two books 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. On 08/09/2008 the child’s father filed an action against the applicant requesting the annulment of her visiting rights. However, on 28/11/2008 the domestic court dismissed his claim on procedural grounds. Nonetheless, it appears that the child’s father submitted a fresh action against the applicant requesting again the annulment of her visiting rights. The hearing held on 12/10/2009 in this case was interrupted after the domestic court had warned the child’s father not to shout at the presiding judge and not to point at her. The child’s father also instituted enforcement proceedings against the applicant in respect of her obligation to pay a maintenance allowance to the child. Finally, the child’s father brought an action against the applicant alleging her unjust enrichment. He claims from the applicant the reimbursement of the costs and expenses awarded to her under the judgment of 14/12/2007 stating that the European Court also awarded her those costs and expenses.

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 three times for failure to produce the child for the purpose of enforcing the interim access order and several times for non-compliance with the final judgment, most recently on 15/04/2009. 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 ruling of 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. Furthermore, the court heard the school psychologist at the hearing held on 05/05/2009. The child was also heard in the presence of the school psychologist and the expert witnesses (a clinical psychologist and a neuropsychiatrist) at the hearing held on 17/06/2009. She firmly declared that she would not like at all to meet the applicant, thus repeatedly demonstrating her firm resistance to establishing any contact with her mother. In such a situation, the court ordered the expert witnesses to give their opinion on further methods of enforcement. On 18/06/2009 the experts submitted their report to the court stating that any administrative or other type of pressure at this stage would pose a risk of destroying the child’s fragile personal and family balance. The hearing scheduled for 21/09/2009 was adjourned since the expert witnesses were unable to appear. On the other hand, the hearing held on 13/10/2009 was interrupted as a result of inappropriate behaviour by the child’s father, who was shouting and threatening in the courtroom.

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 hearings scheduled for 21/01/2009 and 25/02/2009 were adjourned to 25/02/2009 and 23/03/2009 respectively 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 applicant and the child were heard at the hearing held on 11/05/2009. The child declared in the applicant’s presence that she would not like to see “that woman”. The expert witness stated in her turn that she could not assert whether the child was instructed by anyone to testify in this way. She further continued saying that the child “had to establish certain defence mechanisms, which [she] did and she had quite an economic defence mechanism i.e. she defended herself in the most rational way so that she [was] emotionally distant from her real mother, even though she herself [was] not an emotionally challenged person.” On 25/05/2009 the court further heard the child’s conflict guardian and the social worker. On 27/05/2009 the court sentenced the child’s father to six months’ prison suspended for two years for having abducted the minor child.

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 four hearings have been adjourned because the Belgrade School of Medicine failed to produce the required expert report, most recently on 21/09/2009. On 23/02/2009 the Belgrade School of Medicine returned the file to the court stating it was unable to complete the expert report due to the failure of the child’s father to appear. 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 07/05/2009, the court heard the applicant. In the meantime, on 24/06/2009 the court wrote to the Belgrade School of Medicine urging the production of the requested expert report. On 21/09/2009 the court fined the Belgrade School of Medicine 500 euros because it had not yet submitted the expert report. In its turn, the Belgrade School of Medicine wrote to the court stating that required expert report could not be prepared before October 2009 due to its heavy workload.  The next hearing was scheduled for 09/11/2009.

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. Beyond this, the child’s father was also convicted for abduction and sentenced to six months’ prison suspended for two years. It appears that the Serbian authorities have taken 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 and repeatedly demonstrated her unwillingness to make any contact with the applicant, including before the court and in front of the applicant. In these circumstances, the Serbian authorities are expected to continue taking further steps within the framework of the ongoing enforcement proceedings and proceedings for deprivation of parental rights. In this respect, to ensure smooth development of the ongoing proceedings, it appears particularly important at this stage that the requested expert reports are provided to the court expeditiously and without any unnecessary delay.

• 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 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 Government Agent also participated in the public discussion concerning these amendments organised by the Ministry of Justice on 28/05/2009. 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. In addition, the Minister of Justice set up a working party in May 2008 to draft amendments to the Enforcement Procedure Act. It is proposed to introduce private bailiffs in the Serbian legal order. A number of other issues have been discussed such as, inter alia, the notion of the writ of execution, the introduction of a Register of Court Injunctions, a provision concerning service of documents and more lenient requirements in enforcement concerning commercial matters.

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. In 2006, the number of pending cases has reached 700 823 in all jurisdictions. 142 554 of these have been pending over two years. However, in 2007 the number of pending cases has been reduced to 671 559.

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). Another seminar dedicated to the enforcement of judgments in family matters have been organised in Belgrade on 15/10/2009 by the Council of Europe and several other organisations.

• 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 adopted instructions concerning the powers of social care centres, timeframe and procedures to follow in custody matters in accordance with the Family Act. These instructions will be distributed to all courts and social care centres. The instructions are applicable as from 01/04/2009 and are expressis verbis designed to ensure compliance with the Convention in this matter.

It was 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.

• Assessment: It is noted that the European Court found similar violations in the cases of Tomić (25959/06, EVT group, Section 4.2.) and Felbab (14011/07, Section 2.2). Thus, it appears that the problems concerning the enforcement of decisions in family matters still persist in practice. 

• Information is thus 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).

The Serbian authorities further submitted that in 2008 a total of 1927 constitutional complaints were filed. The Constitutional Court decided on the merits of 36 constitutional complaints, while a number were dismissed for procedural reasons. The outstanding 1 514 complaints have been carried over into 2009. Furthermore, as of 14/10/2009, a total of 37 applications in respect of compensation for excessive length of proceedings have been filed with the Damages Commission, which has already examined 32 such applications. The Serbian authorities also provided five decisions of the Damages Commission. All decisions took into account the case-law of the European Court in similar cases when fixing the amount of just satisfaction due on the account of excessive length of proceedings.

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 has implemented a one-year programme to support the Constitutional Court to effectively implement the European human rights standards. In particular, the programme was aimed to help the Constitutional Court 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 a study visit to the Council of Europe was organised for judges and legal assistants. In 2009, five in-depth seminars were 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 was translated and published within the framework of this assistance programme.

Finally, the Council of Europe organised in Belgrade on 23/06/2009 a seminar on the right to an effective remedy attended by the judges and advisors of the Serbian Constitutional Court, Supreme Court and other lower courts.

• 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. The initial statistics on the number of constitutional complaints filed and examined does not appear to be encouraging. However, it is not possible at this stage to make a conclusive assessment whether the remedy introduced is effective or not.

• 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 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.

- 55 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 in respect of the non-pecuniary damage suffered (25 000 euro).

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

The European Court noted that at the admissibility stage it found there was no sufficiently precise case-law illustrating the possibility to obtain redress for non-pecuniary damage in similar cases with respect to an action for protection of personal integrity. 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.

a) Information relating to the application of Article 11 of the Civil Code: The government Agent has organised a number of seminars on the possibility of filing an action for protection of personal integrity under Article 11 of the Civil Code, in association with the European Legal Centre EUROIURIS, the Academy of Justice and the Slovak Bar Association.

The authorities have provided information on domestic judgments concerning actions for protection of personal integrity, in which the aggrieved individual has sought compensation for non-pecuniary damage. In a judgment of the Nitra District Court of 14/05/2006 (file No.10C 142/2002), the plaintiff was awarded compensation for non-pecuniary damage following conviction for manslaughter. This decision, which became final on 18/10/2006, was referred to in the judgment of the European Court at § 34. The authorities provided information on two further cases in which domestic 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). The first case concerns proceedings at the lowest level of jurisdiction. 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.    Following the decision of the Košice Regional Court the matter was returned to the Trebišov District Court, where it is pending. 

• Assessment: although there appears to be some positive development in case-law, it does not appear clear, in the light of the concerns set out by the European Court, that the possibility of bringing a claim for personal integrity is sufficiently certain to avoid similar violations (see below for other possible measures). 

b) Information relating to Sections 46,287 and 299 of the Criminal Code: 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).

c) Information relating to claims under the State Liability Act (Act 514/2003): As from 01/07/2004 an applicant may also bring a claim for non-pecuniary damage against wrongful official conduct of public authorities (under Act 514/2003 Coll). Under Sections 9(1) and (2) wrongful official conduct appears to include cases in which the authority: ignores statutory time limits; is inactive in discharging public power or where there are undue delays in proceedings or other unlawful interference with an individual’s legal rights or interests. Section 27 of the Act provides that it will only apply to official misconduct occurring after it entered into force. According to the explanatory report, the purpose of the Act was inter alia to extend the mechanism of compensation for damage caused by public authorities and thereby reduce the number of cases in which claimants were obliged to seek redress before the European Court.

• Given the uncertainty relating to the status of claims for personal integrity, information is awaited on the function of claims brought under the Criminal Code and the State Liability Act. In particular, confirmation that the State Liability Act would apply in circumstances similar to those in the Kontrova case (noting that it covers wrongful official misconduct whereas the domestic courts found the police negligent in the instant case) and examples of any relevant case-law would be welcome. 

            3) Publication and dissemination of the judgment of the European Court: 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 requested to notify the judgment to all directors of district police offices.  

10699/05          Paulík, judgment of 10/10/2006, final on 10/01/2007

The case concerns a violation of the applicant’s right to respect for his private life because in 2004 it was impossible for him to rely on DNA tests to challenge his paternity, which had been judicially determined in 1970.

The European Court held that domestic law did not allow the applicant to challenge the 1970 judicial declaration of his paternity because the declaration was res judicata, and that a fair balance had not been struck between the interests of the applicant and those of society (violation of Article 8).

The Court also noted that domestic legislation allowed fathers whose paternity had not been established by the courts, but by a mere declaration or by application of the principle of presumption of paternity, to initiate judicial proceedings at any time in order to challenge their paternity, but that it did not take account of the particular circumstances corresponding to the applicant’s situation. Consequently, there had not been a reasonable relationship of proportionality between the aim pursued by the legislation and the means employed (violation of Article 14, taken in conjunction with Article 8).

Individual measures: In its judgment the European Court noted that the applicant could request the reopening of the proceedings under Articles 228.1(d) and 230.2 of the Code of Civil Procedure. Under these provisions, a party in the proceedings can request reopening of the proceedings if the European Court has found a violation and if the consequences of the violation have not been adequately redressed by the award of just satisfaction. The possibility of reopening the domestic proceedings is subject to a time-limit of three months as of the final judgment of the European Court.

On 26/01/2007 the applicant’s lawyer lodged a petition for reopening of the paternity proceedings with the Bratislava IV District Court under Article 228.1 (d) of the Code of Civil Procedure. 02/04/2008 the Nitra Register Office amended the birth certificate, removing the reference to the applicant as the father.

The European Court awarded just satisfaction for non-pecuniary damage.

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

General measures: Under Article 62 of the Family Code, paternity can be challenged by the Prosecutor General if the interests of society so require. However, in the circumstances of the instant case, this provision was not used because it did not apply in the case of paternity determined by judicial declaration.

• Information provided by the Slovakian authorities (letter of 20/03/2007): The judgment of the European Court was translated and published in the legal periodical Justična Revue No 2/2007.

The Office of the Agent of the Slovak Republic before the European Court informed the Minister of Justice and the Legislation Section of its ministry of the judgment. It also drew their attention to the fact that it may require a change to the existing legislation on challenging paternity.

On 29/07/2008 the Slovak authorities confirmed that a legislative change would be made via the major modification to the Family Code scheduled to come into force during 2009. It is intended that the amendment will provide the possibility for the Prosecutor General to open review proceedings where new evidence relating to presumed or judicially determined paternity comes to light.

• Information is awaited on the proposed amendment to the Family Code.

74258/01          Urbárska Obec Trenčianske Biskupice, judgment of 27/11/2007, final on 02/06/2008 and of 27/01/2009, final on 27/04/2009

The case concerns violations of the right to the peaceful enjoyment of possessions of the applicant, a registered association of landowners (violation of Article 1 of Protocol 1).

Under the communist regime the land owned by the predecessors of the members of the applicant association was put at the disposal of an agricultural co-operative, which later rented it to the members of the Union of Gardeners. The owners’ formal right to the land remained unaffected, but they had no possibility of using it.

In July 1998, the gardeners initiated consolidation of ownership proceedings with the view to having the ownership of the land transferred to them. The proceedings were based on the provisions of Act 64/1997, according to which such land could be acquired by the tenants using the land without the consent of the land owner, who was entitled to receive either a different plot of land or pecuniary compensation. As a consequence, in October 2002 the applicant association was offered land to compensate for their loss of ownership at a disproportionately low rate (less than 3% of the current market value of the lost land) and in February 2003 the ownership of the relevant plots passed formally to the tenants. Pending the outcome of the consolidation proceedings, the provisions of Act 64/1997 was applicable and required the tenants to pay rent to the applicant association until the proceedings were resolved.

Under the Act, the rent payable by the tenants to the applicant association was set at ten per cent of its value and was lower than the real property tax payable in respect of the land.

The European Court found that the transfer of ownership of the applicants’ land to the tenants amounted to a disproportionate deprivation of possessions. In the European Court’s opinion, the public interest in pursuing proceedings under Act 64/1997 was not sufficiently broad and compelling to justify the substantial difference between the real value of the applicant’s land and that of the land which it obtained in compensation. Thus the effects produced by application of Act 64/1997 failed to obtain a fair balance between the interests at stake, i.e. those of the individual gardeners using the land in allotments and those of the owners. Moreover, concerning the compulsory letting of the land, the European Court noted that the general interest did not justify such a low level of rent which bore no relation to the actual value of land. Thus the compulsory letting of the land on the basis of the rental terms set out in the applicable statutory provisions amounted to a disproportionate control of use of the applicant’s property.

Individual measures: The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damages resulting from the violation.

• Assessment: no further individual measure appears necessary.

General measures: The European Court concluded that the violation arose from the state of Slovakian legislation which has affected a number of landowners whose land comes under the regime of Act 64/1997. Both violations arose from the application of a law to a specific category of citizens. The European Court noted that this case is the first of a number that are pending before the Court and identified a systematic violation. It therefore suggested that Slovakia should take action at the national level to address the violation. The general measures should ensure that:

1) the rental terms for the letting of land in allotments should be able to take into account the actual value of the land and the current market conditions and

2) compensation for the transfer of ownership of land should have a reasonable relation to the market value of the property at the time of the transfer.

• On 13/11/2008 and 21/07/2009 the Slovakian authorities provided information on legislative proposals intended to address the deficiencies of existing national law identified by the European Court.

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

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

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

23865/03           Bič, judgment of 04/11/2008, final on 04/02/2009

16988/02           Bohucký, judgment of 23/10/2007, final on 23/01/2008

65416/01           Čavajda, judgment of 14/10/2008, final on 14/01/2009

65422/01           Dobál, judgment of 12/12/2006, final on 23/05/2007

15592/03           Dudičová, judgment of 08/01/2009, final on 08/04/2009

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

30036/06           Martikán, judgment of 20/01/2009, final on 20/04/2009

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

2132/02            Sika, judgment of 13/06/2006, final on 13/09/2006

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

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

32427/06           SOFTEL spol. s r.o. No. 1, judgment of 16/12/2008, final on 16/03/2009

32836/06           SOFTEL spol. s r.o. No. 2, judgment of 16/12/2008, final on 16/03/2009

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

These cases concern the excessive length of civil proceedings initiated between 1990 and 2000 and closed, in most of the cases, between 1999 and 2004 (violations of Article 6§1). The European Court recalled its case-law according to which certain disputes (labour law, compensation for damage resulting from an accident, parental rights) should be resolved with special diligence (Magura, Teréni, Palgutova, Lubina, Španίr and Kuril cases).

In addition the European Court, when examining the admissibility of the application in the Jakub case, found that the practice followed by the Constitutional Court in the circumstances of that case had rendered ineffective the constitutional complaint under Article 127 of the Constitution, introduced in Slovakia in 2002, against the excessive length of judicial proceedings. In 2003 the Constitutional Court rejected the applicant's request concerning the excessive length of the proceedings he had instituted on the ground that the proceedings were no longer pending before the court responsible for the alleged delays (see also §§45 and 48 of the judgment of the European Court in the Malejčík case and §§ 35 and 46 in the judgment in L.R).

In the case of Dudičová, the European Court also found a violation of Article 13 in that the Constitutional Court had rejected the applicant’s claim regarding the excessive length of insolvency proceedings as manifestly unfounded, although the proceedings had been pending for five years. The European Court concluded that “the remedy under Article 127 of the Constitution, as applied in the present case, cannot be considered effective” (§§82-83).

It further noted that the domestic remedy against the excessive length of proceedings introduced in 2002 had turned out to be ineffective, in a number of cases the Constitutional Court having awarded the applicant's manifestly inadequate compensation (between 5% and 25% of the amounts awarded by the European Court in comparable cases).

In addition the Mučková, Preložník and Šidlová and Komanický No.2 cases concern the absence of an effective remedy against the excessive length of the same proceedings, in that they were closed respectively before the introduction of the constitutional complaint procedure in 2002 (violations of Article 13). In the Dobál case, the European Court found that there was no effective remedy whereby the applicant might complain about the unreasonable length of proceedings stayed since 1999 (violation of Article 13). On 19/02/2003 the Constitutional Court declared his constitutional complaint inadmissible, as according to its practice, no unjustified delays could exist in proceedings while they were lawfully stayed.

The Mučková case also concerns the unfairness of proceedings in an action brought by the applicant against the state seeking compensation for non-pecuniary damage resulting from a road accident caused by an official of the Ministry of the Interior (violation of Article 6§1), in which her daughter had been seriously injured.

In 1997, the court refused to grant the applicant costs on the ground that her action had no chance of success, without advancing any precise justification for this conclusion.

The Turek case concerns a violation of the applicant's right to respect for his private life due to the unfairness of proceedings in which he unsuccessfully challenged his registration by the former State Security Agency (StB) as one of their “agents” (violation of Article 8). The European Court said that when adopting lustration measures a state must ensure that, in proceedings brought in application of such measures, the persons concerned are protected by all the procedural guarantees provided by the Convention. In the Court's view, the applicant had not benefited from those guarantees inasmuch as the burden of proof was laid upon him to show that he had been registered in breach of the rules applicable at the material time, i.e., the Federal Ministry's guidelines of 1972 - a confidential document to which he had no access. This requirement had imposed an unrealistic burden on the applicant, in breach of the principle of equality of arms.

Individual measures:

            1) Right to trial within a reasonable time

• Information provided by the Slovak authorities: Proceedings are still pending in the following cases: Ščuryová, Hrobová, Lubina, Orel, Rišková, Sofitel No.1, Softel No.2, Dudičová, Báňas Eliáš, Jakubίčka and Magyaricsová, Vičanová, Komanický No.2, Komanický No.3, Komanický No.4, Pobijaková, Rapoš, Španίr and Weiss.

In the cases of Ščuryová, Hrobová and Lubina the Office of the Agent of the Slovak Republic has drawn the attention of the relevant courts to the conclusions of the European Court.

• Information is awaited on the state of proceedings in the pending cases and, where appropriate, their acceleration.

2) Violation of Article 6§1 (right to a fair trial) in the Mučková case and violation of Article 8 in the Turek case: The applicants had the possibility to apply to have the unfair proceedings reopened under Article 228§1(d) of the Code of Civil Procedure, which provides that parties may so apply if the European Court has found a violation and if the consequences of such violation are not adequately redressed by the payment of just satisfaction. Applications to reopen must be submitted within three months counting from the date upon which the relevant European Court judgment becomes final.

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

General measures:

            1) Excessive length of civil proceedings: General measures have already been adopted to improve the efficiency of the judicial system and avoid new violations, particularly in the context of the examination of the Jóri case (judgment of 09/11/2000) closed by Resolution ResDH(2005)67 (Act No. 501/2001 which reduces the number of cases in which second-instance courts are competent at first instance and aims to accelerate the gathering of evidence; Act No. 385/2000 which regulates the civil and disciplinary liability of judges for unjustified delays in their cases).

- Personnel and organisational measures: Three measures of this type have been taken and a further measure has been proposed:

1) the government increased the number of judges by 50 in the first quarter of 2008;

2) following the adoption of Act No.511/2007 amending Act No.371/2004, 9 new district courts have been created and have been operational since 01/01/08;

3) the Minister of Justice has invited all judges to take a pro-active and responsible approach to the completion of judiciary duties and attends court without giving prior notice to monitor judges’ readiness for hearings;

4) the Ministry of Justice is currently working on a proposal for a law which will enable senior judicial officials and court secretaries to undertake simple judicial work, allowing judges to concentrate exclusively on decision making.

- Development of IT provision and courts management: A number of technical changes have been made to the management of the court system, including the establishment of a number of electronic databases and a central database for the court system which would allow users to check efficiently for parallel proceedings; for judges to monitor the status of cases before the courts and to check on the status of prisoners who are serving their sentences.

- Legislative measures: Three legislative changes have been taken and one has been proposed:

(i)         A group of amendments made under Act 273/2007, which came into force on 01/07/07 (the “little amendment to the Code of Civil Procedure”). This Act amended Act No. 99/1963 on the Code of Civil Procedure. It also amended Act No.71.1992 on court fees. The effect of the “little” amendment was to make eight changes to civil procedure in Slovakia, aimed at improving the functioning of courts. The changes include four administrative measures on allocation of jurisdiction; the process for serving documents; file management in the appellate courts and simplification/reduction of court fees. There are also four further substantive amendments to the Code in relation to court procedures:

            (1) Section 16: harmonisation of the time-limits for motions to remove a judge on grounds of bias with those applicable to appeals. The question of bias will no longer be heard as a separate matter by the appeal court but will be decided along with the main grounds of appeal.

            (2) Section 214: appeal courts may decide a wider range of matters without holding hearings in limited circumstances which include agreement by the parties not to have a hearing and a public interest test.

            (3) Sections 250f(3) and 250ja(3): widening the scope of cases which may be concluded without a hearing before administrative courts, where it is obvious that the decision of an administrative authority should be quashed.

            (4) Section 250t(2): in proceedings against administrative authorities the Public Prosecutor may now file a motion with the court to oblige a public authority to act and take a decision.

(ii)         Act 24/2007 amending Act 530/2003 on the Companies register. This provides that from 01/08/07 the Companies Register is available online and individuals no longer need to attend court to create a company or deal with other administrative aspects of the company.

(iii)        Act 568/2007 amending Act 527/2002 on voluntary auctions. This change came into force on 01/01/08 and simplified the procedure relating to voluntary auctions to minimise the occurrence of invalid auctions.

(iv)        A fourth legislative change is proposed: the draft law amending Act 99/1963 of the Civil Procedure Code (the “big” amendment to the Code of Civil Procedure). This draft law was subject to inter-departmental consultation in November 2007. The new draft law includes six proposals to amend the Code of Civil Procedure, which are a mixture of administrative and substantive changes, intended to streamline the management of civil proceedings.

- Proposal for “stabilising the judiciary”: On 25/04/2007 the Legislative Committee of the National Council acknowledged a report on the situation in the Slovak judiciary and requested the Minister of Justice to submit a proposal for stabilising the judiciary.

The Minister of Justice has drawn up the main points for this proposal, including analysis of decisions of the Constitutional Court concerning ordinary courts and of decisions of the European Court; finding out opinions in particular of courts’ managing officials and judges concerning the main problems in the judiciary and the possibilities of solving them, as well as opinions of the working committee implementing the project of evaluation of the workload of judges.

At the request of the Minister of Justice, the Office of the Agent of the Government of the Slovak Republic submitted the required analysis of decisions of the European Court. Other entities also submitted necessary documents. The Minister of Justice is currently processing these documents with the view to finalising the proposal for stabilising the judiciary.

- Statistical information provided by the Slovak authorities (letters of 11/01/2007, 24/10/2007, 18/03/08, and 28/04/09): The average duration of civil proceedings in recent years was as follows:

2002	15,18 months
2003	16,56 months
2004	17,56 months
2005	16,86 months
2006	15,40 months
2007	15.06 months

- Publication and dissemination: European Court judgments against Slovakia are regularly published in Justičná Revue.

• Information is awaited on the finalised proposal on ‘Stabilising the Judiciary; the “big” amendment to the Code of Civil Procedure and the current trend concerning the average length of civil proceedings for 2008.

            2) Remedies against the excessive length of civil proceedings: A reform of the Constitution adopted in 2002 introduced the possibility of a constitutional petition for complaints of violations of human rights protected by international treaties. The European Court has already found on several occasions that this new constitutional complaint represents an effective remedy in the sense of Article 13 of the Convention (see among others the admissibility decision in the case of Andrášik and others, of 22/10/2002).

a) The Constitutional Court's practice of rejecting appeals in cases in which the proceedings are no longer pending before the court responsible for the delay: Jakubίčka and Magyaricsová

• Information provided by the Slovakian authorities (letter of 11/01/2007): Examples of Constitutional Court judgments have been provided to demonstrate another practice of that Court: i.e. examining appeals taking account of the length of procedure before several levels of jurisdiction. In the view of the Slovakian authorities, the practice criticised by the European Court was inconsistently applied during the first five years of operation of the new remedy, and was due to the change in the law. The present trend is to align practice with the requirements of the European Court's case-law.

In addition, the European Court's judgments in Jakub and Malejčik have been transmitted to the Constitutional Court. The Malejčik judgment has been published in Justičná Revue, No. 6-7/2006.

• The question of the adequacy these measures is being examined bilaterally.

b) Inadequacy of the amounts awarded in compensation by the Constitutional Court

The European Court has noted that in a number of cases, compensation awarded by the Constitutional Court does not correspond to the European Court’s likely award under Article 41 for the period of delay, such compensation averaging less than 20% of a likely award by the European Court. Cases in the group which raise this issue include Magura, Rišková, Sika, Šidlová, Kuril, Tomláková, Ščuryová, Solárová and others, Šedý, Čavajda, Bič, Softel (No.1, Softel No.2, Martikán. Báňas, Eliáš Komanický No.3, Komanický No.4, Pobijaková, Rapoš, Španίr and Weiss. In Vičanová the European Court criticised the low level of compensation coupled with the ineffectiveness of the Constitutional Court’s injunction to speed up the proceedings (§35-36). 

The European Court's judgments in the Magura and Sika cases have been sent to the Constitutional Court by a letter of the Minister of Justice.

On 07/11/2008 the Office of the Agent of the Slovak Republic before the European Court organised a seminar with the European Legal Centre EUROIURIS, which took place at the Constitutional Court of Slovakia and was attended by the legal advisors of the Constitutional Court. The focus of the seminar was the question of inadequacy of the amounts awarded in compensation by the Constitutional Court in cases of excessive length. Participants’ attention was drawn to the relevant case-law of the European Court and to an analysis of the individual Slovak cases concerned.

• In accordance with the Committee's practice since the adoption of Recommendation Rec(2004)6 on the improvement of internal remedies, and in view of the continuing nature of this problem, information is awaited on the current practice of the Constitutional Court in this respect as well as on other measures taken and/or envisaged to align compensation levels with the requirements of the case-law of the European Court.

c) The Constitutional Court’s practice of rejecting appeals concerning stayed proceedings (case of Dobal):

On 02/09/2008 the Slovak authorities confirmed that the judgment in Dobál had been circulated to the Constitutional Court under cover of a circular letter from the Agent of the Slovak Republic. The President of the Constitutional Court was requested to notify all the judges in the court of the judgment with the aim of avoiding similar violations.

• Information is awaited on the current practice of the Constitutional Court in this respect

d) The Constitutional Court’s practice of rejecting appeals where the excessive length of the proceedings was considered insufficient grounds for a claim (Dudičová)

• Information is awaited: on any measures taken or envisaged.

e) Ineffectiveness of Constitutional Court injunctions to other domestic courts to expedite proceedings which have suffered excessive delay. (Komanický No.2, Vičanová).

• Information is awaited on any measures envisaged or taken.

3) Unfairness of proceedings in the Mučková case

• Information provided by the Slovakian authorities (letter of 22/11/2006): On 10/10/2006, the European Court's judgment, together with a circular by the Minister of Justice, was sent out to regional courts, with a request to inform district court judges.

• Further information provided by the Slovak authorities on 18/03/08: The judgment in the Múčková case and published in Justičná Revue No.10/2006.

4) Violation of Article 8 in the Turek case: The Lustration Act of 1991, which provided that certain important posts in state institutions could only be held by persons who had not been “agents” of the StB, ceased to have effect in Slovakia on 31/12/1996 (§74 of the European Court's judgment).

• Information provided by the Slovak authorities: Concerning the problem of the burden of proof in disputes about the protection of personal integrity, Section 200i of the Code of Civil Procedure, which provided the obligation of the defendant to propose to the court possible evidence supporting the defendant’s allegations, was repealed as of 20/12/1997 following a judgment of the Constitutional Court of 11/11/1997

The judgment has been published in the legal journal Justična Revue, No 6-7/2006. To avoid further similar violations, the Minister of Justice has sent out a circular to the presidents of regional courts requesting them to distribute the judgment to all judges of these courts as well as to the district courts in their jurisdiction.

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

- 206 cases against Slovenia

71463/01           Šilih, judgment of 09/04/2009 – Grand Chamber

The case concerns the inefficiency of the Slovenian judicial system in dealing with the applicants’ claim that their son’s death in 1993 resulted from medical malpractice. The applicants instituted criminal proceedings against the doctor and civil proceedings for damages against both the hospital and the doctor. The criminal proceedings, in particular the investigation, were excessively long and lasted from 1993 to 2000, when they were finally discontinued. The civil proceedings were instituted in 1995 and are still pending before the Constitutional Court. They were stayed for three years and seven months pending the outcome of the criminal proceedings; however, for the two years before they were officially stayed, the civil proceedings were in fact already at a standstill (§204). After the criminal proceedings were discontinued it took the domestic courts a further five years and eight months to rule on the applicants’ civil claim (§207). Lastly the applicants’ case was dealt with by at least six different judges in a single set of first-instance proceedings (§210).

The European Court noted the shortcomings above and found that domestic authorities had failed to deal with the applicants’ claim arising out of their son’s death with the requisite level of diligence (§211) (procedural violation of Article 2).

Individual measures: The European Court granted the applicants just satisfaction in respect of the non- pecuniary damage sustained. Furthermore, it appears that the prosecution of the alleged offence of medical malpractice became time-barred in 2003 (§47).

• Information provided by the Slovenian authorities (01/10/2009):  The Constitutional Court has examined the applicants’ complaint in respect of the civil proceedings as a high priority. On 22/05/2009 it decided to hear the applicants’ constitutional complaint. The case was heard on 10/09/2009 and it will be also heard in October 2009. No decision has been taken so far.

• Information would be useful on the outcome of these proceedings.

General measures:

• Information provided by the Slovenian authorities (01/10/2009): The State Attorney will submit to the Ministry of Health an initiative to amend legislation concerning the medical sector. The initiative is also supported by the Ministry of Justice. These draft amendments provide for changes in the composition of the tribunals operating within the framework of the Slovenian Doctors’ Association. In particular, those tribunals will not be composed solely of doctors but could also include a representative from the Ministry of Health and some prominent experts from the justice sector. This change would contribute to increasing the transparency and legitimacy of the investigations into the alleged medical malpractice.

• Publication and dissemination: The European Court’s judgment has been translated into Slovenian and published on the website of the State Attorney’s Office (www.dp-rs.si). It was also published in the second edition of the Short Guide on the European Convention of Human Rights by Donna Gomien. The book was distributed free to all judges, state prosecutors, state attorneys and practicing lawyers in Slovenia. The Ministry of Justice also included the case in the training programme for judges for 2010.

• Assessment: The proposed legislative changes are certainly capable of increasing transparency of the investigations into alleged medical malpractice. However, they are not directly related to the issue of the excessive length of criminal and civil proceedings before the domestic courts in medical malpractice cases.

It appears nonetheless that the wide dissemination of the European Court’s judgment to all domestic courts would help to reduce the risk of excessive length of proceedings in such cases. 

• Information is awaited on the follow-up given to the proposed legislative amendments and the calendar for their adoption. Information is also awaited on how the proposed legislative changes will reduce the risk of excessive length of criminal and civil proceedings before domestic courts in medical malpractice cases and how the proceedings before the Slovenian Doctor’s Association are related to such court proceedings.

43393/98           Matko, judgment of 02/11/2006, final on 02/02/2007

This case concerns the ill-treatment to which the applicant was subjected by the Slovenj Gradec police at the time of his arrest in April 1995 and the failure to conduct an effective investigation into the matter.

The applicant alleged that he had been severely beaten when he was apprehended. Although the medical reports subsequently obtained by units involved in the operation found that his injuries were due to the use of force by the police, his complaint to the Slovenj Gradec police was dismissed by the Public Prosecutor in January 1997. At the same time, a judicial investigation was opened against the applicant for “obstructing an official in the course of his duties”. The district court convicted the applicant on 12/02/2001.

The European Court held that the Slovenian authorities had not furnished credible or convincing arguments explaining or justifying the degree of force used against the applicant (substantive violation of Article 3), particularly because the statements of the officers who had used force against the applicant were not examined at any stage in the investigation. Furthermore, during the judicial proceedings against the applicant, the police officers concerned were not questioned because the district court considered it necessary to protect their identity.

The European Court also found that the investigation conducted into the applicant’s allegations was not effective (procedural violation of Article 3). The investigation was conducted by the Slovenj Gradec police and the Ministry of Internal Affairs, i.e. the authorities to which the officers accused of injuring the applicant belonged. Moreover, the Public Prosecutor, in her last-instance decision, lacked the necessary transparency and appearance of independence, and took 18 months to dismiss the applicant’s complaint, although no major steps had been taken to investigate the circumstances at issue. In addition, the Court found it particularly striking that the police officers were not questioned during the judicial proceedings.

Individual measures: The investigation into the ill-treatment of the applicant was closed by decision of 17/01/1997. The judicial proceedings against the applicant ended with a judgment given by the Maribor Higher Court on 09/05/2001. The applicant did not appeal against this judgment. He was given a suspended sentence of three months’ imprisonment and ordered to pay the costs of the proceedings.

The European Court awarded him just satisfaction in respect of non-pecuniary damage and for costs and expenses. It dismissed his claims concerning pecuniary damage and the costs of the domestic proceedings.

• Information provided by the Slovenian authorities (letter of 02/08/2007): The State Prosecutor may not initiate a criminal investigation against the police officers responsible for the ill-treatment of the applicant as the matter is time-barred.

• Information would be useful on the exact time-limits of prescription in this case as well as on the possibility of instituting disciplinary proceedings against the police officers concerned.

General measures:

            1) Substantive violation of Article 3:The issue of the ill-treatment inflicted by the Slovenj Gradec police was already raised during the examination of the Rehbock case (judgment of 28/11/2000; Section 6.2), which concerned facts posterior to the ones in this case. The Rehbock case gave rise to publication of the judgment of the European Court.

• Assessment: no other general measure appears to be necessary.

            2) Procedural violation of Article 3: The European Court welcomed the Constitutional Court decision of 06/07/2006 (§§ 66 and 95). In this decision the Constitutional Court emphasised that the right to judicial protection secured by the Slovenian Constitution also included the right to an independent investigation in cases of alleged ill-treatment by the police.

• Information provided by the Slovenian authorities (letters of 29/03/2007, 02/08/2007 and 01/10/2007):

- Dissemination of the judgment: the European Court’s judgment has been translated and sent out to police stations in the territory in which the violation occurred, to the Ministry of Justice and the State Prosecutor’s Office. In January 2007 the State Prosecutor sent out a memorandum to heads of District Prosecutors’ Offices and the State Prosecutor’s Special Group for the Prosecution of Organised Crime, requesting them to inform all state prosecutors of the judgment.

- Amendments to the State Prosecutor Act: two amendments to the State Prosecutor Act were adopted on 16/02/2007 and 07/05/2007. They set up a specialised task group responsible solely for the prosecution of criminal offences committed by employees in the field of internal affairs (Article 10 of the Act). The special task office began work on 01/11/2007. These amendments also transfer jurisdiction to state prosecutors who will co-ordinate and direct the work of the police during criminal investigations concerning unlawful police acts. A copy of the text of the amendment of 16/02/2007 was sent to the Secretariat.

- Amendment to the Police Act of 10/11/2005: it contains detailed provisions on how medical care shall be provided to detainees.

- Training of police officers: the Ministry of Internal Affairs conducted an internal analysis of the Matko case. Its findings will become part of the compulsory training programme for police officers and staff. The Police provide continuous training and education of its staff as regards the exercise of its powers and practical implementation of procedures. It also regularly publishes brochures on the issue of the exercise of these powers in the context of human rights. The Human Rights Ombudsman is also involved in this training process.

- Inspections: the Ministry of Internal Affairs regularly inspects the work of Police, to monitor the legality of the procedures applied and protect individuals’ rights. The rules specifying the powers of the Minister of Internal Affairs over the Police were published in the Official Gazette No 97/2004 of 03/09/2004.

• Written confirmation of the publication of the judgment is awaited.

                       - 2 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 (28400/95, 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 courts are 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 (23032/02, Section 4.2) 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. 

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

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

These cases concern the excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Articles 6§1 and 13).

Certain key findings by the European Court in successive judgments have set the parameters for the execution measures adopted:

(i) that the excessive length of proceedings in Slovenia constituted “a systemic problem that has resulted from inadequate legislation and inefficiency in the administration of justice” (§93 of the Lukenda judgment), that the violations were due to a malfunction of domestic law and practice (§4) and that “the respondent State must, through appropriate legal measures and administrative practices, secure the right to a trial within a reasonable time” (§5);

(ii) that the remedies introduced in the Law of 2006 on the Protection of the right to trial without undue delay (the “2006 Act”) were in principle of a nature to prevent the continuation of alleged violations of the right to a hearing without undue delay and of providing adequate redress for any violation that had already occurred and could thus be considered effective (§62 of the Grzinčič judgment). This effectiveness extended to applications lodged after the entry into force of the 2006 Act and those concerning domestic proceedings pending at first and second instance already on the Court’s list (§103). The Court highlighted that that there was no reason to doubt the effectiveness of the remedy introduced but that its position might be subject to future review (§108).

(iii) that, with regard to the compensatory remedy provided in the 2006 Act, “national authorities should ensure that the aggrieved party has a prompt access to the compensatory remedy once he or she has made use of the acceleratory remedies” (§54 of the Žunič judgment) and that there were certain limits to the possibility of claiming just satisfaction in that, for just satisfaction claims to be admitted, two cumulative conditions must be satisfied: first, the claimant must have properly exhausted the accelerative remedies and, secondly, the proceedings must have been finally resolved (§47).

(iv) that the 2006 Act provides no remedy in respect of excessive length of proceedings before the Constitutional Court (§43 of the Tomažič judgment) but that that amendments to the Constitutional Court Act were introduced in July 2007 (Official Gazette, No. 51/07) with the aim of simplifying and shortening procedures before that court. These changes were expected to have an effect in practice at the end of 2008 (§31).

Individual measures:

• Information provided by the Slovenian authorities (letter of 31/07/2007, 22/04/2008 and 20/10/2008): In 54 cases, proceedings have been concluded. All relevant domestic courts have been informed that they should give priority to cases in which the European Court has found a violation.

• Information is awaited concerning the state of proceedings and on measures taken or envisaged to accelerate them if they are still pending.

General measures: The European Court observed in the Grzinčič judgment that there were some 1 700 cases of length of proceedings against Slovenia pending before the Court (§59). Following that judgment and the in light of the findings contained in it, 900 applications have been declared inadmissible on the ground of non-exhaustion of domestic remedies in respect of the proceedings before the first and the second instance courts, while 350 applications were declared inadmissible either because a friendly settlement had been reached or a unilateral declaration had been made by the government. There are approximately 550 applications currently pending before the Court. These concern the excessive length of proceedings before the Supreme Court or the Constitutional Court (120 cases) as well as those proceedings which had ended before the 2006 Act became operational but for which no application had been lodged with the European before that date (225 cases).

• Information provided by the Slovenian authorities: In response to the Secretariat's initial-phase letter of 27/03/2006, the Slovenian authorities provided an action plan for the implementation of measures aiming at avoiding further similar violations (letters of 06/06/2006, 04/10/2006, 27/03/2007 and 31/07/2007):

1) The "Lukenda Project":Following the Lukenda judgment, the Slovenian authorities adopted on 12/12/2005 a Joint State Project on the elimination of court backlogs, the so-called “Lukenda Project”. Its goal is the elimination of the backlog before the Slovenian courts by the end of 2010, with the aim of introducing structural and managerial reform.

The project aims to halve the number of backlog cases in courts, in the statistical context, by 31/12/2010, i.e. to 284 000 cases. In the substantive context, the time needed to examine a certain case by a specific court were to be determined in an agreement reached between the Supreme Court, the Judicial Council and the Ministry of Justice for each type of court and each calendar year separately and the Court Rules modified accordingly. The number of undecided cases shall not exceed 155 000 after 31/12/2010.

The Lukenda project moreover provides many complex ways to increase judicial efficiency and solve the problem of court backlogs. The most significant measures envisaged are the following:

- ensuring workplace conditions in accordance with the strategy of spatial development of the judicial system,

- additional provision and organisation of human resources or professional staff for a fixed period until 31/12/2010,

- stimulating the remuneration of court staff for their increased workload directed at eliminating court backlog,

- simplification of legislation and standardisation of judicial proceedings,

- computerisation of courts and judicial proceedings,

- additional training of judges and prosecutors and introduction of specialisation of judges,

- reorganisation and better management of courts.

1. Increased employment of judicial staff and new premises for courts: In 2006 there were 1002 judges, 276 associates and 2705 other judicial staff members. According to the budget for 2007 and 2008, the number of judges' posts is to increase by 90 and 15 respectively and that of other judicial staff members by 250 each year. The Ministry of Justice is also preparing complete documentation necessary for the acquisition of additional premises for courts.

2. Measures to accelerate proceedings before labour courts: A new Labour and Social Courts Act entered into force on 01/01/2005 setting up specialist jurisdictions for social and labour litigation. This act also contains a specific provision for appeal proceedings in such cases (Article 30): in case of erroneous or incomplete finding of the material circumstances or an essential violation of procedural provisions, the appellate court may itself correct any irregularity in the first-instance judgment by collecting supplementary or new evidence or by other procedural acts.

3. Seminars for judges and State Attorneys: In September and October 2006, the Ministry of Justice, in cooperation with the Council of Europe, organised two seminars on the practice of the Convention bodies concerning Articles 6 and 13 of the Convention.

4. Statistics on backlog and average length of civil proceedings in Slovenian courts: In 1998-2007, court backlogs have been reduced by an average annual rate of 9%: in 2007 it was reduced by 11.8%. The number of backlog cases in local courts has decreased in 2007 by 10.5% compared to 2006 and by 51% compared to 2000. Local courts have reduced the number of unresolved civil claims from 53 000 in 1998 to 21 422 in 2007. The share of civil claims examined within a year attained 46.1% in 2007 as compared to 36.2% in 2000.

The time required for examination of a case has decreased in district courts. As a result, in 2007 the district courts managed to gain control over the flow of new cases, while the number of pending cases has also decreased. Since 2000, the share of civil claims resolved in district courts has been constantly within the margin of 55%-60% of all claims. In 2006 higher courts examined 58.7% of all civil appeals within 6 months, while this share increased in 2007 to 66.4%. Labour and social courts examined 66.4% of all cases within one year, while only 3.4% cases were lasting over 3 years. The number can be considered a significant success taking into account that such cases constituted more than a quarter of all cases. The Higher Labour and Social Court has decreased its backlog in 2007 by almost 56% as compared to 2006. At the end of 2007, a total of 471 cases remained pending.

In addition, this backlog was reduced by 38.9% (from 628 to 384) cases since December 2007. The backlog of cases is monitored by the Supreme Court since 01/01/2008. The authorities noted that in 2007 there was the following number of backlog in civil cases: 10 414 before local courts, 6 322 before district courts and 1 503 before higher courts as compared to 28 137, 6 522 and 3 294 respectively in 2000.

• Assessment: It may be observed from the statistical information provided by the Slovenian authorities that there is a steady decrease in the backlog cases in 2007 compared with previous years in all courts. These figures are indicative of a positive development in dealing with backlog cases. Furthermore, the increase of posts within the judiciary is helpful to solve the problem of backlog and excessive length of proceedings. The measures taken have yielded the first results as corroborated by the fact that the backlog cases have been reduced three times before local courts and twice before higher courts, while the district courts have slightly less performing statistics.

• Information is awaited on the further implementation of the "Lukenda Project". In particular, further updated statistical information on the backlog cases, the average length of civil proceedings and the implementation of the planned increase of posts within the judiciary would be helpful to further monitor the positive trends in this field. Information on any other measures taken or envisaged in this respect would be also appreciated (e.g. the measures taken concerning the introduction computer systems in courts and the remuneration of court staff, training etc.).

2) Introduction of effective remedies: A new law on the Protection of the right to trial without undue delay was adopted on 26/04/2006 (the 2006 Act) (published in the Official Gazette of the Republic of Slovenia, No 49/2006 of 12/05/2006) and took effect on 01/01/2007. This law provides the following remedies against excessive length of proceedings:

1. Scope of the application of the 2006 Act: The remedies provided in the 2006 Act are available to parties to court proceedings, participants of non-contentious proceedings and injured parties in criminal proceedings (Articles 1 and 2). They may be also used before administrative courts and the Supreme Court, but not before the Constitutional Court.

2. Remedies for acceleration: The 2006 Act provides for two types of acceleratory remedies:

a) a supervisory appeal with a proposal for expediting the hearing of a case: In case of excessive length of proceedings the applicant should first lodge such a complaint before the court hearing the case (Article 5). The president of the court will request the judge to submit a report within 15 days indicating reasons for the duration of the proceedings. If the judge dealing with the case notifies the president that procedural acts or a decision will be forthcoming within 4 months, the president informs the party accordingly. On the other hand, if the complaint is substantiated, the president of the court may order the judge in charge of the case to perform certain procedural acts within a specified time-limit (not less than 15 days and not longer than 6 months) and/or to treat the case with priority (Article 6). The president of the court may also order that the case be reassigned if it is found that the excessive length is due to an excessive workload or an extended absence of the judge.

b) a motion for a deadline: It may be lodged with the president of the higher court if a supervisory appeal has been rejected or has not been examined within 2 months, or if the procedural acts ordered by the president of the court have not been performed within the time-limit set (Article 8).  The decision on whether the complaint is well-founded must be rendered within 15 days. If this motion is substantiated, the president of the higher court may, inter alia, order the judge in charge of the case to perform certain procedural acts within a specified time-limit, which may not be less than 15 days and not longer than 4 months, and/or to treat the case with priority (Article 11§4).

In the Court’s view, these deadlines as they stand in the text of the 2006 Act comply with the requirement of speediness necessary for a remedy to be effective (§88 in Grzinčič).

3. Remedies for compensation: The 2006 Act provides for the following compensatory remedies:

a) a claim for just satisfaction: Pursuant to the 2006 Act, anyone sustaining non-pecuniary damage as a result of a failure to comply with the “reasonable-time” requirement is entitled to just satisfaction if a supervisory appeal lodged by the party has been granted or if a motion for a deadline has been lodged (Article 15 and 16).  Just satisfaction will be provided by means of monetary compensation, a written statement of the State Attorney's Office or the publication of a judgment finding a violation of the right to a trial without undue delay.  Monetary compensation shall be payable for non-pecuniary damage caused by the excessive length of proceedings. It will be granted for each finally decided case in an amount of between  300 and 5 000 euros and is awarded following friendly settlement proceedings before the Office of the State Attorney (Article 16 and 19). The party may lodge a claim for just satisfaction within 9 months after the final resolution of the case. The State Attorney’s Office shall rule on the claim within a period of 3 months if it establishes that the claim for just satisfaction is substantiated. The corresponding sums for payment of monetary compensation are earmarked in the Slovenian budget (Article 23).

b)  an action for damages: If no agreement is reached with the State Attorney’s Office, a party may bring an action for non-pecuniary damages in the local court within 18 months after the final resolution of the case (Article 20).

c) an action for pecuniary damage: a party may bring an action for pecuniary damages within eighteen months after the final decision. When deciding on pecuniary damage, the court has to take into account the provisions of the Obligations Act and the 2006 Act.

4. Just satisfaction for damage sustained prior to coming into force of 2006 Act: In cases in which the domestic proceedings are concluded but an applicant has already lodged an application with the European Court, the 2006 Act provides that the applicant could obtain redress from the national authorities (the European Court has declared approximately 1300 applications inadmissible on the ground that the applicants in this situation may obtain redress).

5. Information provided by the Slovenian authorities regarding the effectiveness of the remedies under the 2006 Act (letter of 22/04/2008): In total 3058 supervisory appeals were filed, out of which 964 were declared ill-founded and rejected while 118 were referred for examination to the president of the competent court. Furthermore, 468 supervisory appeals were dismissed while 1275 were allowed by the presidents of the courts and the applicants received a notification that the court would perform the appropriate procedural action within a specified deadline. In total 835 motions for a deadline were also filed, out of which 603 were declared ill-founded, 146 were dismissed and 18 motions were allowed as reasonable and well-founded.

6. Remedies before the Constitutional Court: The 2006 Act does not provide any remedy for excessive length of proceedings before the Constitutional Court (see the case of Tomažič). It was noted in its Annual Report of 2007 that there had been 1300 cases pending before the Constitutional Court.

• Assessment of the European Court: As mentioned in the judgments quoted above, the European Court has made a number of observations regarding the remedies introduced for excessive length of proceedings under the 2006 Act. These observations can be summarised as follows:

1) Accelerative remedies: A supervisory appeal and a motion for a deadline are designed to obtain acceleration of pending proceedings and/or a finding that time-limits have been exceeded. Since a supervisory appeal and a motion for a deadline, as they stand, consist in different tools for expediting pending proceedings, those remedies are effective;

2) Compensatory remedies: these remedies provide for compensation of both pecuniary and non-pecuniary damages sustained. This remedy is, without doubt, an appropriate means of redressing a violation that has already occurred. The national authorities should ensure that the aggrieved party has a prompt access to the compensatory remedy once he or she has made use of the accelerative remedies (§ 54 Žunič);

3) in assessing the reasonableness of the length of proceedings, the national authorities are required to look at the criteria established by the Court’s case-law;

4) the ensemble of remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance is effective in that they are in principle capable both of preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred (§§ 95-98 of Grzinčič);

5) although finding the remedies introduced so far effective, the Court’s position may however be subject to review in the future and the national authorities should take particular care to ensure that the 2006 Act is applied in conformity with the Convention and the Court’s case-law (§ 54 Žunič).

• Secretariat’s assessment: It appears from the Court’s assessment that the remedies introduced by the 2006 Act may be considered as effective so far as the first and second instance courts are concerned. It is important that the national authorities take particular care to ensure that these remedies are applied in conformity with the Convention and the Court’s case-law.

In particular, the authorities should take the necessary steps to ensure that an aggrieved party has a prompt access to the compensatory remedy once he or she has made us of the accelerative remedies.

However, it appears that the 2006 Act does not provide a remedy for excessive length of proceedings before the Constitutional Court. In addition, the Secretariat has no elements as to the effectiveness of the 2006 Act in respect of the proceedings before the Supreme Court.

• Additional information is therefore awaited on the functioning of all remedies introduced in practice in the next period, in particular on remedies before the Supreme Court and before the Constitutional Court.

The Deputies, 1.             noted the systemic character of the violations found by the European Court regarding the excessive length of civil proceedings and the lack of effective remedies in this respect; 2.             noted that in the Lukenda case, the European Court considered that this systemic problem “has resulted from inadequate legislation and inefficiency in the administration of justice” and underlined that “the respondent State must, through appropriate legal measures and administrative practices, secure the right to a trial within a reasonable time”; 3.             welcomed the measures taken by the Slovenian authorities in response to the Lukenda judgment and noted that these measures have had a positive impact on the reduction of the backlog of civil cases before domestic courts; 4.             noted that Slovenian law now provides acceleratory and compensatory remedies against excessive length of proceedings;  5.             observed that the European Court found in a number of judgments and decisions that these remedies could be considered effective with regard to the proceedings before first and second-instance courts; 6.             further observed that the European Court noted that the Slovenian authorities should take particular care to ensure that these remedies are applied in conformity with the Convention standards and that an aggrieved party has prompt access to the compensatory remedies after the acceleratory remedies have been used; 7.             invited the Slovenian authorities to take the necessary measures with a view to complying with the findings of the European Court in this respect; 8.             noted that the effectiveness of the remedies available in respect of proceedings before the Supreme Court had not been clearly demonstrated and that, as highlighted by the European Court, no effective remedies had been introduced in respect of excessive length of proceedings before the Constitutional Court; 9.             invited the Slovenian authorities to take the necessary measures to ensure that effective remedies are made available in respect of excessive length of proceedings before the Constitutional Court and the Supreme Court; 10.          stressed that, in certain cases in this group, the domestic proceedings are still pending and invited the Slovenian authorities to take the necessary measures to ensure that the proceedings in these cases are brought to an end; 11.          decided to resume consideration of these cases at the latest at their 1086th meeting (June 2010) (DH) in light of further information to be provided on general and individual measures.

- 7 cases against Spain

21369/04           Gomez de Liaño y Botella, judgment of 22/07/2008, final on 22/10/2008

The case concerns the lack of objective impartiality of the court which convicted the applicant in 1999, as the judges on the bench at his trial had already participated in different stages of the proceedings, in particular the appeal against the applicant’s indictment (violation of article 6§1).

The European Court found that the chamber of the Supreme Court had underlined the provisional nature of the indictment and had stated that it did not prejudge the merits of the case. However the European Court found that the reasoning of the judgment upholding the indictment could be construed as showing that the judges who had taken this decision already had an opinion on the existence of evidence relating to the offence, including questions relating to the applicant’s guilt.

Individual measures: Following the proceedings the applicant, who was a judge at the time, was convicted of abuse of office, fined and disqualified from public service for 15 years. In 2000, through a royal decree, the applicant obtained a pardon concerning the disqualification from public service. In 2002, the Judicial Service Commission decided to reinstate him in the judicial profession. Since them the applicant has been works as an advocate (§§ 35 and 36 of the judgment). The European Court awarded the applicant just satisfaction in respect non-pecuniary damages.

• Information is awaited as to whether the applicant is suffering from other negative consequences of the violation remain regarding the applicant.  

General measures

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

                        - 6 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

1518/04            Golf de Extremadura S.A., judgment of 08/01/2009, final on 08/04/2009

77837/01          Saez Maeso, judgment of 09/11/2004, final on 09/02/2005

25779/03          Salt Hiper, S.A., judgment of 07/06/2007, final on 12/11/2007

These cases concern a breach of the applicants’ right of access to a court on account of the inconsistent or particularly strict interpretation by the court of rules of procedure (violations of Article 6§1).

In the Stone Court Shipping Company S.A. case, the applicant company’s right of access to a court had been infringed on account of the Supreme Court’s particularly strict interpretation of its own rules of procedure resulting in 1997 in the rejection – confirmed by the constitutional Court in 1998 – of the applicant company’s appeal on a point of law as having been submitted out of time. Whilst the appeal had been lodged with the “on-duty” court the day before the date-limit expired, it was not communicated to the Registry of the Supreme Court until afterwards. The Supreme Court relied in its decision on provisions of domestic law to the effect that appeals could only be lodged with an “on-duty” judge if the time-limit for appeal was due to expire the same day and the court with which the appeal had to be lodged was closed for business.

In the cases of Barrenechea Atucha and Golf de Extremadura S.A the Supreme Court rejected the applicant’s appeal on points of law as inadmissible in 2001 and 2002 even though it had found it to be admissible almost six and three years earlier, respectively. The Constitutional Court confirmed the decision later. In the European Court’s view, if the supreme Court had had reasons for finding the appeal admissible, it could not find to the contrary six and three years later without explaining the change in case-law or without inviting the applicant to submitany observations in case of possible grounds for inadmissibility.

 In the Saez Maeso case, the applicant’s appeal against a decision of the University of Valencia not to grant him a diploma was dismissed by the High Court of Justice, after which the applicant took his case to the Supreme Court. On 10/06/1993 the Supreme Court declared his case admissible. On 26/06/2000 (seven years after the admissibility decision) the Supreme Court dismissed his appeal on a point of law on the ground of formal shortcomings at the admissibility stage, without inviting the applicant to submit observations within a definite time-limit. In April 2001 the Constitutional Court confirmed this decision. In the European Court’s view, the Supreme Court’s interpretation was excessively rigorous given that the new Law No. 29/1998 of 13 July 1998 provides that parties should be informed of possible grounds for inadmissibility.

In the case of Salt Hiper S.A., the Supreme Court rejected the applicant company’s appeal on points of law as inadmissible in 2001 even though it had found it to be admissible five years earlier. The Constitutional Court confirmed the decision in February 2003. In the European court’s view, if the supreme Court had had reasons for finding the appeal admissible, it could not find to the contrary five years later without explaining the change in case-law or going through some kind of rectification procedure.

In the case of De la Fuente Ariza, a criminal judge, in proceedings against the applicant for alleged offences against the public treasury, decided to accept only some of the evidence adduced by the applicant. This decision of 7/04/2000 specified that it could not be appealed. The applicant nonetheless appealed to the Constitutional Court. The application was dismissed initially in 2000 on the ground that the criminal proceedings had not been completed and once again in June 2003 because he had not exhausted the remedies available against the decision in question. The European Court considered that to dismiss an appeal as premature and then subsequently on grounds of non-exhaustion, alleging that the applicant had not appealed against a decision explicitly stating that no appeal was possible, must at the very least be considered as a lack of legal security for the applicant.

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 has been provided by the Spanish authorities (letter of18 /09/2009) 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 similar violations, including awareness-raising activities, would also be useful.

• This information is under evaluation.

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

The case concerns unjustified interference with the applicants' right to respect for their private life in that the security service conserved certain information concerning their former political activities under the 1998 Police Data Act (violation of Article 8).

The European Court considered that this information was provided by law and pursued a legitimate aim, i.e. the maintenance of order and the prevention of offences and the protection of national security. It nonetheless found that, while this interference was not disproportionate in respect of the first applicant, this was not the case with regard to the others.

The case also concerns unjustified interference of the freedoms of expression and association of all the applicants except the first (violations of Articles 10 and 11).

The European Court considered that to keep on file personal data related to political opinion, affiliations and activities that had been deemed unjustified for the purposes of Article 8§2 ipso facto constituted an unjustified interference with the rights protected by Articles 10 and 11.

Finally the case concerns the absence of any effective remedy with respect to these violations (violation of Article 13). The European Court noted in a previous case that the Parliamentary Ombudsman and Chancellor of Justice could receive individual complaints and had a duty to investigate them in order to ensure that the relevant laws had been properly applied. However, neither of them is empowered to render a legally binding decision nor did they have specific responsibility for inquiries into secret surveillance or into the gathering and filing of information by the Secret Police. In the meantime, a number of steps had been taken to improve the remedies, in particular the establishment of the Records Board (empowered to monitor on a day-to-day basis the Secret Police's intelligence gathering and filing, and compliance with the Police Data Act) and the Data Inspection Board. The Court noted that the Records Board had no competence to order the destruction of files or the erasure or rectification of information kept in the files. The Data Inspection Board had wider powers but the Court had received no information indicating the effectiveness of the Data Inspection Board in practice.

Individual measures:

• Information provided by the Swedish authorities (in April 2008): The information in question has been eliminated from the records of the Swedish Security Service and is therefore neither searchable nor accessible to Swedish Security Service personnel.

General measures:

            1) Violation of Article 8:

• Information provided by the Swedish authorities: The judgment of the European Court has been sent out to the Supreme Administrative Court, all administrative courts of appeal, the parliamentary Ombudsman and the Chancellor of Justice with a memorandum on 15/01/2007 analysing the judgment. Relevant officers from the Swedish Security Service have also received information about the implications of the judgment for the activities of the Swedish Security Service. The judgment is available on the government’s human rights website, www.manskligarattigheter.gov.se, along with a detailed account of the judgment.

• Assessment: No further measure seems necessary.

            2) Violation of Articles 10 and 11:

• Assessment: As publication and dissemination of the European Court’s judgments are also sufficient measures in this respect, no further measure appears necessary.

            3) Violation of Article 13:

• The Swedish authorities were invited to provide information on the functioning the Data Inspection Board and/or on the possible introduction of another effective remedy.

• Information provided by the Swedish authorities (April 2008): A new agency, the Swedish Commission on Security and Integrity Protection, has been established, partly as a response to the European Court’s judgment in this case. This Commission started operating in January 2008 in order to supervise the use of secret surveillance by crime-fighting agencies and the processing of personal data by the Swedish Security Service. Its mandate and operation are regulated by law. The Commission has taken over the functions previously held by the Records Board.

However, it has also acquired a new supervisory and control function aimed at improving individual access to a national legal remedy in cases involving secret surveillance and processing of personal data by the Swedish Security Service. Thus, at the request of an individual the Commission is required to check whether they have been subject to secret surveillance by the Swedish Security Service under the Police Act and whether it was lawful.

If the Commission decides that processing of personal data has taken place without legal basis or in violation of procedures, it must report the matter to the Data Inspection Board. The latter may then intervene, and if it turns out to be impossible to remedy the situation in any other way, or if the matter is urgent, the Board may prohibit the controller of personal data, i.e. the Swedish Security Service, from continuing to process the personal data in any other way other than storing it and may attach a conditional financial penalty to this prohibition. As a last resort, the Board may apply to the county administrative court for erasure of such personal data which has been processed in an unlawful manner. The Board must always initiate supervision procedures in the event of a complaint from an individual. In recent years there have only been a couple of such complaints per year. In cases, however, in which the Board has found, following a complaint, that incorrect processing of personal data has occurred within the police service, the authority keeping the records has promptly remedied the situation or else appealed against the Board’s decision. The Board has therefore not needed to take any further-reaching measure other than ordering the police to discontinue certain processing, eliminate certain data or take other similar measures.

Further, if the Commission on Security and Integrity Protection considers that a legal offence may have been committed, it must notify the Swedish Prosecution Authority, and if the Commission considers that the state’s responsibility may arise, it must report to the Office of the Chancellor of Justice, the authority which deals with claims against the state for damages.

As of 1/01/2007 a new provision governing appeals was introduced in the Personal Data Act, stating that decisions directly affecting an individual taken under this Act by a public authority may be appealed to a general administrative court. The provision also applies to the processing of personal data by the Swedish Security Service, and means among other things that an appeal may be made to a general administrative court against a decision by the Swedish Security Service not to correct or eliminate personal data that the complainant asserts is being processed in contravention of active legislation.

Work is currently in progress at the Ministry of Justice to modernise the legislation regulating processing of personal data by the Police Service. The new provisions provide clearer and more detailed regulation of the area of elimination of data. For certain types of personal data a considerably shorter period before elimination, as compared to the current legislation, is envisaged. The proposal will also require the Swedish Security Service to take a special decision if data need to be kept longer than the ten-year limit for elimination. The legislative proposal described above is planned for presentation in the autumn of 2008.

• Assessment: The violations in this case resulted from the continued storage of information which concerned the applicants and had been released to them, which the European Court found was a disproportionate interference with their rights. As regards in particular the powers of the Data Inspection Board, the European Court concluded that it had not been shown in practice that the Board is an effective remedy in this context, even though it could in theory apply to the county administrative court to have records erased.

• Information would be appreciated showing the effectiveness of the Data Inspection Board’s powers concerning requests for erasure of information kept on record by the Security Service, or the effectiveness of any other remedy on this question. Information about the progress of the proposed legislative amendments to the Police Data Act would also be appreciated, as well as a copy of the envisaged or proposed amendments.

- 2 cases against Switzerland

55525/00           Hadri-Vionnet, judgment of 14/02/2008, final on 14/05/2008

This case concerns the infringement of the applicant’s right to family and/or private life (violation of Article 8). In April 1997, the applicant gave birth to a stillborn baby. When asked by the mid-wife whether she wanted to see the body of the child, the applicant – still in shock – and the father of the child replied that they did not. The same day, a social worker and the registrar for the local area were informed of the birth of the child. They arranged for a funeral without any ceremony and made no provision for the applicant to attend. After being placed in a wooden coffin by the funeral service, the body of the child was transported in a delivery van to the municipal cemetery and buried in the communal grave for sill-born babies. The applicant brought criminal proceedings against the municipal officials concerned but these were unsuccessful. The applicant also sought, without success, compensation for the suffering caused by the actions of the municipal agents.

Without questioning the sincerity of the municipal agents, the European Court considered that there had been an interference with the applicant’s rights regarding both the organisation of her child’s funeral and the transport of his body and that this interference did not have any legal basis.

Individual measures: In May 1998, the child’s body was exhumed, under the authorisation of the local authority responsible and at their cost. The body was transferred to a place chosen by the applicant, where it was buried after a religious ceremony. In the event that this did not amount to adequate and sufficient compensation, the European Court awarded the applicant compensation for non-pecuniary damage.

Ÿ Evaluation: In the circumstances, no other measures appear necessary.

General measures:

Concerning the right of parents to attend a burial and ceremony, the Court indicated that ‘there was a contradiction between the clear legal provisions and the actual practice followed’. The fact that the burial was not organised by relatives was equally, “in contradiction to the clear wording of the relevant legislation”. Finally, the transport of the child’s body was also an infringement in disregard of the relevant legislation. The European Court’s judgment was published in the 1st quarterly report 2008 of the Ministry of Justice on the case-law of the European Court of Human Rights (http://www.bj.admin.ch/etc/medialib/data/staat_buerger/menschenrechte/eurokonvention.Par.0002.File.tmp/ber-egmr-2008q1-f.pdf).

Ÿ Evaluation: Information is awaited on the measures taken or envisaged to avoid other, similar violations. It appears, in any case, necessary to disseminate the judgment to the competent authorities.  

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 Section 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 that the applicants will have the possibility, based on section 122 of the new Federal Tribunal Act of 17/06/2005, which entered into force on 1/01/2007, of applying for a revision of the impugned judgment delivered by the Federal Court on 28/05/2003 in order to have the mother-daughter relationship between the first two applicants restored without 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 (see §98 of the judgment). 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 (Section 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 (Section 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 Court, Federal Administrative Court, Federal Criminal Court, 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 similar violations. In this respect, the judgment delivered by the Federal Court 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 Court 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.

• Information would be useful as to whether legislative amendments are envisaged to avoid new, similar violations.

- 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, 09/04/2009 and 02/10/2009): Following to the European Court’s judgment, the applicant requested the reopening of the proceedings before domestic courts in compliance with Article 400 of the Code of Civil Procedure. The proceedings are currently pending before the Skopje Court of Appeal.

• Information is awaited on the developments in the domestic proceedings and the full execution of the Supreme Court’s decision of 28/02/2001.

General measures:

            1) Excessive length of enforcement proceedings: See Jankulovski group of cases (6906/03, 1092nd meeting, September 2010).

            2) Lack of an effective remedy

• Information in awaited in accordance with the Committee of Ministers' practice since the adoption of Recommendation Rec(2004)6 on the improvement of internal remedies, 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.

- 394 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 examination of the case in March 2009 (1051st meeting) 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. At its last examination of the case (June 2009, 1059th meeting) the Committee noted with interest the information presented during the debate by the Turkish authorities and the Cypriot authorities and considered that this information needs to be assessed.

• This information is awaited in writing in order that it may be assessed.

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.

• At their last examination of the case (1059th meeting, June 2009) the Committee of Ministers noted 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 them to provide this information in writing in order that it may be assessed. The information is still awaited.

• 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 the very recent information provided by the Turkish authorities on individual and general measures and considered that this information remained to be assessed in detail; 2.             decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of the assessment of the information provided as well as of possible further information to be provided by the Turkish authorities.

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 unjustified 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 who do not themselves pose a threat. 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 if so of their results, as well as to keep the Committee of Ministers regularly abreast of subsequent progress.

General measures:

• An Action Plan / Action Report is awaited on any measures taken or envisaged in light of the judgments. In particular, any information on the following points would be welcome.

1) Excessive use of force and fire-arms (violation of Article 2): the issue of the regulatory framework governing the use of force and firearms by the security forces of the “TRNC” is examined within the framework of the Kakoulli case (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 firearms 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.

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.

28290/95           Güngör, judgment of 22/03/2005, final on 22/06/2005

The case concerns the lack of an effective investigation into the circumstances of the murder of the son of the applicant, at the time a Member of Parliament, in an official apartment in the parliamentary quarter of Ankara in 1991. The 21-year-old was found dead in his bed, having received multiple stab wounds and a bullet to the head. Criminal and parliamentary investigations initiated at the time failed to identify the perpetrators. 

The European Court pointed out the following shortcomings in those investigations: first, certain items of evidence – such as objects that were visible on a video recording made just after the crime was committed – had disappeared and were not among the exhibits in the case-file. Secondly, discrepancies between different expert reports demonstrated that the security forces had not done enough to preserve the evidence. Nor had they taken reasonable steps to follow up lines of inquiry suggested to them by different sources regarding the identity of the killers and the circumstances in which the crime had been committed.

The Court further found that although the investigators had considered it necessary to obtain statements from members of parliament living in the parliamentary quarter at the time of the murder and although there was no legal obstacle to prevent their doing so, they had not taken all the necessary statements (violation of Articles 2 and 13).

Individual measures: A commission was established by Parliament in February 2005 to carry out a fresh investigation into the murder of the applicant's son.

• Information provided by the Turkish authorities: In their reply of 22/11/2005 to the Secretariat's initial-phase letter of 13/10/2005, the Turkish authorities confirmed that the Parliamentary Investigation Commission had been set up but gave no information as to what steps it had taken so far. At the 982nd meeting (December 2006) the Turkish authorities indicated that the Commission had carried out a fresh investigation, including hearing witnesses and an on-site examination of the crime scene.

On 9/11/2007, the authorities informed the Secretariat that the parliamentary investigation had been completed. The Commission drafted a 148-page report after examining 124 witnesses including parliamentarians, police officials, former Ministers, friends of the applicant’s family and officials who had participated to the procedure with different titles. 

In its report, concerning the criminal investigation, the Commission stated that its findings must be taken into consideration by the judicial authorities as new evidence, so that certain testimony and evidence could be re-evaluated. The Commission clearly highlighted the contradictions and inconsistencies between the different witness statements and certain evidence collected and added that those responsible for carrying out the initial investigation might have been negligent in carrying out their duties.

A general debate was held on the Commission’s report in Parliament under Article 98 of the Constitution. The President of the Commission sent the report to the Principal Public Prosecutor’s Office and requested that the findings stated in the report should be taken as new evidence to initiate a new prosecution.

• Information is awaited as to whether a new criminal investigation has been initiated by the judicial authorities after receiving the Commission’s report.

General measures: The Court considered that Turkey must act without delay to discharge its obligation to ensure that its legislation is clarified so that parliamentary immunity no longer operates in practice to prevent prosecutions for ordinary criminal offences in cases in which members of parliament or their families are involved as possible witnesses or suspects (see § 111 of the judgment).

• Information provided by the Turkish authorities: In their letters of 22/11/2005, and 9/11/2007, the Turkish authorities underlined that the sole purpose of parliamentary immunity is to protect parliamentarians in respect of actions falling within their function. Parliamentary immunity does not prevent the investigatory authorities from carrying out criminal investigations concerning parliamentarians, but only requires the Assembly’s prior consent for their arrest, detention or trial. However, this prerequisite shall not apply in situations of flagrant délit. On the other hand, there is no such a prerequisite for taking testimony of the parliamentarians concerning incidents they witnessed.  In any event, it is clear that immunity does not extend to parliamentarians' families, in respect of whom the authorities are free to take any necessary investigatory measures in the framework of criminal investigations.

According to the Turkish authorities, provisions of the new Code of Criminal Procedure will prevent new, similar violations.

• Assessment: The Secretariat notes that the first part of the submissions by the Turkish authorities had already been refuted by the Court, which explicitly referred to the measures Turkey must take to avoid future violations (§111). On the other hand, it is observed that the provisions of the new Code of Criminal Procedure do not address the particular problem underlined in this judgment.

Therefore, information is awaited as to what further measures the Turkish authorities envisage so that parliamentary immunity no longer operates in practice as an obstacle to carrying out criminal investigations. Information would also be useful as to whether there are examples of court decisions or investigative material demonstrating the positive effect of the dissemination of the judgment to the relevant authorities in their practice in cases in which members of parliament or their families are involved as possible witnesses or suspects.

8327/03            Kılavuz, judgment of 21/10/2008, final on 21/01/2009

The case concerns the failure of the prison authorities in their obligation to protect the right to life of the applicant’s son, who killed himself with his belt in November 2001 when incarcerated in Bilecik prison.

The European Court found that even though the psychological problems suffered by the applicant’s son, confirmed in a medical report placed on his personal prison file, indicated that he obviously needed close supervision, the authorities had not taken the measures necessary to protect his right to life (violation of Article 8).

Individual measures: The European Court granted the applicant just satisfaction in respect of the non pecuniary damage suffered by her son and the pecuniary and non-pecuniary damage she had herself sustained.

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations, and on the translation and dissemination of the European Court’s judgment to all authorities concerned, in particular prison authorities.

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).

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 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.

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.

63748/00           Taştan, judgment of 04/03/2008, final on 04/06/2008

The case concerns the degrading treatment suffered by the applicant on account of the fact that in March 2000 he was obliged to do his military service at the age of 71 under conditions incompatible with his health and age. The case also concerns the lack of an effective remedy in this respect (violation of Article 3 combined with Article 13).

The European Court noted that the government indicated that, in accordance with the practice followed in similar cases, the applicant’s personal records relating to his military service had been destroyed. Thus, the Court had little information in its possession, apart from the applicant’s statements, regarding the circumstances of his military service or how the applicant, who was illiterate and spoke only Kurdish, had been able to communicate his complaints to the doctors and his hierarchical superiors. While the applicant had shown no signs of any particular illness when called up for military service, after a month’s forced participation in military training intended for 20-year-old conscripts, his state of health deteriorated and he had to be admitted to hospital. Moreover, the Turkish Government had not referred to any particular measure taken with a view to alleviating, in the applicant’s specific case, the difficulties inherent in military service, or adapting compulsory service to his case. The European Court considered that calling the applicant up to do military service, keeping him there and making him take part in training tailored for much younger recruits had been a particularly distressing experience.

The European Court also noted that there was no provision in domestic law for appeal in the applicant’s particular situation, and that the destruction of his records would, in any event, have prevented him from seeking any redress.

Individual measures: The applicant was exempted from military service in April 2000. Moreover, the European Court awarded just satisfaction for moral damages sustained.

• Assessment: Under these circumstances, no other individual measure is necessary.

General measures: The European Court’s findings in this case demonstrate that the authorities failed to take any measure to adapt the conditions of the compulsory military service to the specific situation of the applicant. In addition the legislation does not provide any age limitation to perform military service Therefore, the authorities are expected to indicate the measures taken or envisaged in this regard.

The Secretariat addressed an initial phase letter to the Turkish authorities on 7 August 2008 regarding the general measures taken or envisaged. The authorities’ response is awaited.

• Information is also awaited on the publication and wide dissemination of the judgment of the European Court to all relevant authorities.

- 10 cases concerning the excessive use of force to break up unlawful but peaceful demonstrations

74552/01           Ataman Oya, judgment of 05/12/2006, final on 05/03/2007

31451/03           Açık and others, judgment of 13/01/2009, final on 13/04/2009

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

16999/04           Karabulut Samüt, judgment of 27/01/2009, final on 27/04/2009

9207/03            Öktem Evrim, judgment of 04/11/2008, final on 04/02/2009

68263/01           Şahin and others, judgment of 21/12/2006, final on 21/03/2007

4327/02            Saya and others, judgment of 07/10/2008, final on 07/01/2009

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 cases of Nurettin Aldemir and others and Samut Karabulut the European Court found a violation of the applicants’ right to freedom of assembly on the basis of similar facts (violation of Article 11).

In the case of Saya and others, a public demonstration was organised in Adıyaman on 01/05/1999. Even though the demonstration had been authorised by the governor, it was dispersed by the police who subsequently took the demonstrators into custody. Besides the violation of Article 11 of the Convention, the Court found also a violation of Article 3, in its substantial and procedural limbs.

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) (see also the case Evrim Öktem).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, Açık and others 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, Açık and others, Samut Karabulut, 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, Evrim Öktem, Saya, 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.

- 2 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.

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.

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).

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.

- 38 cases concerning the lack of effective investigations in respect of the actions of the Turkish security forces

a) following ill-treatment of the applicants and / or

33097/96+        Batı and others, judgment of 03/06/2004, final on 03/09/2004

1249/03            Atalay, judgment of 18/09/2008, final on 18/12/2008

26893/02           Ataş and Seven, judgment of 16/12/2008, final on 16/03/2009

30461/02           Çağlayan, judgment of 21/10/2008, final on 21/01/2009

28433/02           Çamdereli, judgment of 17/07/2008, final on 01/12/2008

39324/02           Çelik No. 1, judgment of 20/01/2009, final on 20/04/2009

25172/02           Çamçi and others, judgment of 24/02/2009, final on 24/05/2009

72194/01           Doğan Nurgül, judgment of 08/07/2008, final on 08/10/2008

10301/03           Getiren, judgment of 22/07/2008, final on 22/10/2008

5264/03            Gülbahar and others, judgment of 21/10/2008, final on 21/01/2009

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

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

15750/02           Uyan No. 2, judgment of 21/10/2008, final on 21/01/2009

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

19374/03           Yilmaz and others, judgment of 14/10/2008, final on 14/01/2009

17721/02           Yılmaz Hürriyet, judgment of 05/06/2007, final on 12/11/2007

b) following the death of the applicants’ relatives

34592/97           Ağdaş, judgment of 27/07/2004, final on 27/10/2004

34491/97           Demir Ceyhan and others, judgment of 11/01/2005, final on 11/04/2005

42942/02           Duran Ali and Ayşe, judgment of 08/04/2008, final on 08/07/2008

40262/98           H.Y. and Hü.Y., judgment of 06/10/2005, final on 06/01/2006

35072/97+         Şimşek and others, judgment of 26/07/2005, final on 26/10/2005

33750/03           Yeter, judgment of 13/01/2009, final on 13/04/2009

These cases mainly concern the shortcomings of proceedings (some of which are pending before domestic courts) relating to the investigation of abuses by members of security forces, in particular the ill-treatment of the applicants or the death of their relatives under circumstances engaging the responsibility of the state.

- The case of Batı and others concerns a series of violations suffered by 15 applicants following their arrest during a police operation in 1996. The European Court found it established that the applicants had been subjected to treatment which amounted to torture. The European Court also found, inter alia, that the investigation into the applicants' allegations of torture had been very lengthy and the proceedings against the police officers were still pending before the Court of Cassation eight years after the events (The Court of Cassation decided on 16/04/2004 to discontinue the proceedings against all police officers because the limitation period had expired). The flaws in the investigation and the failure to conduct it with the necessary promptness and diligence had resulted in granting virtual impunity to the accused police officers, which rendered the criminal remedy ineffective (violations of Articles 3, 5§3 and 13).

- The Ağdaş case concerns the death of the applicant's brother, allegedly murdered by police officers in 1996. The domestic courts concluded that the applicant's brother died in an armed clash and acquitted the police officers on the ground that they had acted in self defence. Although the European Court considered that it was not in a position to conclude that the applicant's brother had died as a result of a disproportionate use of force, it nevertheless found that the domestic authorities did not provide a prompt and adequate investigation into the circumstances surrounding his death (violations of Articles 2 and 13). The applicant informed the Secretariat that he will not accept the amount of just satisfaction awarded by the European Court. He demanded instead that the perpetrators of his brother's killing be identified, prosecuted and punished.

- The case of Demir Ceyhan and others concerns the death of a relative of the applicants during transfer from one prison to another in 1996. In July 2001 the gendarmes who had escorted the applicants' relative were charged with intentional homicide through the infliction of torture and suffering. The proceedings against the gendarmes are still pending before domestic courts. Finding that the Turkish authorities were responsible for the death of the applicants' relative, the European Court found that no effective investigation had been carried out into the death of the applicants' relative (violations of Articles 2 and 13).

- The case of H.Y. and Hü.Y. concerns the ineffectiveness of the investigation carried out into the death of the applicants' son while in police custody in 1997. Several investigatory measures were taken after the incident and subsequently seven gendarmes who had been responsible for the deceased during his time in police custody were indicted, but acquitted in January 2002 for lack of evidence. An appeal on points of law by the applicants is currently pending before the Court of Cassation. While acknowledging the number of investigative measures that were taken in this case, the European Court considered it regrettable that, owing to the lack of thoroughness with which the investigation had been conducted, it had not been possible to establish with more certainty the cause of the head injury which was at the origin of the death (violation of Article 2).

- The Sunal case concerns the ill-treatment of the applicant in 1996 while in police custody. The European Court found, inter alia, that the investigation conducted by the administrative authorities into the applicant's allegations of ill-treatment could not be considered effective in view of the lack of independence of the persons responsible for its conduct and the fact that the applicant did not have access to the investigation file (violations of Articles 3 and 13).

- The case of Şahin Zülcihan and others concerns the use of force on the applicants inside the Istanbul Palace of Justice in 1997 when they were being conveyed into a courtroom as plaintiffs in proceedings they had brought against police officers alleging ill-treatment. The European Court found that the applicants were not given access to the investigation file and had no means of questioning witnesses or of presenting their own version of the facts since the inquiry into their allegations was made by an administrative council (violations of Articles 3 and 13).

- The case of Şimşek and others concerns the failure of the state to protect the right to life of the applicants' relatives who were shot dead by members of security forces during demonstrations in Istanbul in 1995. The European Court found that the investigatory steps taken by the Turkish authorities were dilatory and half-hearted, did not appear to have produced tangible results and disregarded the accountability of state officials (violations of Articles 2 and 13).

- The case of Yaman Abdülsamet mainly concerns the torture inflicted on the applicant while in custody in 1995. The European Court found that the proceedings brought against the police officers accused of torturing the applicant produced no results mainly on account of the substantial delays throughout the trials and, decisively, the application of statutory limitations in domestic law (violations of Articles 3, 5 §§ 3, 4 and 5 and 13).

- The Öktem case concerns torture inflicted on one of the applicants while in police custody, identified as such by domestic courts, and the absence of any effective remedy because of the application of prescription in the proceedings initiated against the police officers accused of torturing the applicant. The European Court found that the police officers enjoyed virtual impunity as the domestic courts failed to act sufficiently promptly to prevent them from taking advantage of the prescription. The criminal proceedings lasted for more than eight years (violations of Articles 3 and 13).

- The Türkmen case concerns torture inflicted on the applicants while in police custody as well as the impunity enjoyed by police officers during the conduct of the proceedings against them in 1994 (violations of Article 3). The charges against the police officers were dropped by a decision of the Court of Cassation in 2000 on the ground that the prescription period of 5 years had expired in 1999.

The European Court found it inconceivable that the accused police officers had remained in office during the investigations, proceedings and even after being found guilty.

The Court also found it unacceptable that the proceedings against the officers had not been conducted with the necessary promptness and diligence, resulting in the prosecution to become time-barred (violation of Article 3).

The Turkmen case also concerns the lack of independence and impartiality of the state security court which tried and convicted the applicants (violation Article 6§1).

- The case of Karabulut Mustafa concerns ill-treatment of the applicant by police officers during arrest. It also concerns the lack of an effective investigation into his allegations. The European Court considered that the use of force had not been rendered necessary by the applicant’s conduct and therefore the state was accountable for the injuries he suffered (violation of Article 3). The Court also noted that criminal proceedings opened against the police officers had ended with a decision not to judge the case, thus ruling out the possibility of ever ascertaining the precise origin of the injuries he had suffered. Moreover, when the criminal court decided on the suspension, the proceedings had already lasted for some 6½ years. Accordingly, the Turkish authorities had not acted promptly enough or with reasonable diligence, so that the perpetrators had enjoyed virtual impunity (procedural violation of Article 3).

- The case of Yeşil and Sevim concerns torture in police custody and the lack of an effective remedy. The European Court found no reason to depart from the findings of the criminal court which found the perpetrators guilty of torture (violation of Article 3). However as the Court of Cassation eventually terminated proceedings as being time-barred, the European Court considered that the judicial authorities had failed to act with sufficient promptness or reasonable diligence, with the result that the perpetrators had enjoyed impunity (violation of Article 13).

- The case of Yılmaz Hürriyet concerns ill-treatment in police custody and lack of an effective investigation. The European Court considered that, in the absence of a plausible explanation, the state was accountable for the injuries that the applicant suffered in custody (violation of Article 3). It also concluded that the authorities failed to conduct the investigation with due expedition and that because of that delay, the applicant and his witnesses were deprived of the opportunity to meet the accused police officers face to face and identify them, with the result that the accused officers were acquitted for lack of evidence (procedural violation of Article 3).

- The case of Tamer Fazıl Ahmet and others concerns ill-treatment in police custody and lack of an effective investigation. The European Court considered that, in the absence of a plausible explanation, the state was accountable for the injuries that the applicants suffered in custody (violation of Article 3). It also concluded that the proceedings against the accused police officers had been very long and that they had resulted, more than a decade after the events in question, in a judgment by the Court of Cassation, which had decided to end the criminal proceedings as time-barred. The Court concluded that not only the criminal-justice system but also the disciplinary system as it had been applied in this case, had proved far from rigorous and had resulted in total impunity for the applicants’ presumed torturers (procedural violation of Article 3).

- In the Atalay case, the European Court found violations of Article 3 in both its procedural and procedural aspects. Underlining that the leniency of the sentences imposed on police officers for ill-treatment was not compatible with Article 3, it found that the suspension of sentences pursuant to Amnesty Law No. 4616 constituted a violation. The same considerations apply to the case of Kur Orhan.

- In the Ataş and Seven and Çağlayan cases, the Court found a violation of Article 3, particularly in that allegations of ill-treatment had been investigated by the Departmental Administrative Council, which was not sufficiently independent from the executive to carry out an in-depth investigation properly. In addition, the Court found that criminal proceedings against the police officials involved had been suspended pursuant to Amnesty Law No. 4616.

- In the Çamdereli case, the violation of Article 3 found by the Court was due to both the failure to suspend state agents from their duties while they were being prosecuted for ill-treatment and the discontinuation of the criminal proceedings against them under Amnesty Law No. 4616 (likewise in the Türkan case).

- The finding of a violation of Article 3 in the case of Celik No. 1 concerns lacunae in the investigation carried out by the Chief of Police who issued his report without having heard either the applicants or witnesses; the excessive length of the procedure and the failure to suspend the policemen concerned as well as, in addition, the application of Amnesty Act No. 4616 which resulted in the suspension of the criminal proceedings against them.

- In the case of Çamçi and others, the fact that the Prefect – who cannot be considered to be an organ independent from the executive – had carried out the investigation and refused to prosecute the policemen, was found by the court to be a violation of Article 3.

- In the Nurgül Doğan case, although the authorities were informed in sufficient detail concerning allegations of ill-treatment, they took no action until 11 moths after the facts of the case, which the Court found to be a violation of Article 3.

- In the Getiren case, the finding of a violation of Article 3 was based on the following considerations: shortcomings in the medical expert’s report, which was a key element in the outcome of the proceedings against the state agents; the mutually contradictory nature of certain statements by state agents taken into consideration; the failure to suspend state agents from duty despite criminal proceedings against them for ill-treatment.

- In the Gülbahar case, the Court noted that no reference was made in the prosecutor’s decision to drop the charges against the agents concerned to the medical reports cataloguing the applicants’ injuries, and that no member of the security forces was questioned by the authorities in this respect (violation of Article 3).

- In the Karademir Osman case the administrative investigation of the applicants’ allegations of ill-treatment was carried out by a police officer responsible to the same hierarchy as the accused. In addition, in a judgment acquitting the police officers, the assize court failed to take into consideration a medical report describing the bruises on the applicant’s body. Finally, the requisite medical examinations were not carried out in conformity with the Istanbul Protocol (violation of Article 3).

- In the Karaduman case, a finding of a violation of Article 3 was based on the shortcomings of medial reports, excessive delay in investigation and the fact that the administrative investigation was carried out by a police officer responsible to the same hierarchy as the accused.

- In the Karatepe and Ulaş case, even though the Court found no procedural violation of Article 3, it found that that the administrative investigation had been carried out by a police officer responsible to the same hierarchy as the accused.

- A violation of Article 3 was found in the Okkalı case due to the following observation by the European Court: the police officers had been given the benefit of “mitigating circumstances” (the court decided to suspend the enforcement of their sentences by virtue of Articles 4 and 6 of Law No. 647) for having confessed, even though at no time during the proceedings did they ever acknowledged their guilt.

 - In the case of Zeynep Özcan, the police officers accused of ill-treatment also benefited from “mitigating circumstances” for their behaviour during the trial even though they never attended the hearings. What is more, the court decided not to issue a judgment in the case and the officers continued to attend to their duty during the proceedings (violation of Article 3).

- In the Özgür and Çamlı case, the applicants were not heard by the prosecution in the framework of the investigation of ill-treatment; the testimony of a witness in prison was not heard and the applicants were not taken to the medical institute until a month after the incident (violation of Article 3).

- In the Şimşek Hüseyin case, the police officers were not brought before the competent court until a year after the complaint was made. In addition, throughout the proceedings, the policemen involved continued to carry out their duties. For more than five years, the police administration was able to ignore the injunctions of a criminal court by refusing to supply photographs of officers supposedly involved in the incidents. Finally, the criminal proceedings for ill treatment against the policemen were proscribed (violation of Article 3). The proscription of proceedings was also at the origin of the finding of a violation of Article 3 in the case of Yilmaz and others.

- In the case of Tekin and others, criminal proceedings against the security forces accused of ill-treatment were excessively long and were proscribed (violation of the procedural aspect of Article 3).

- In the case of Tonka and others, there was no investigation or criminal proceedings which might have provided an explanation of injuries found on the applicants’ bodies (violation of Article 3).

- The case of Dural Ali and Ayşe concerns a violation of Article 2 in that the sentences pronounced against police officers implicated in the death of a relative of the applicants were reduced on the grounds that that the officers had through their testimony assisted the court throughout the proceedings in establishing the truth. The Court also noted that the enforcement of the sentences had been suspended in application of Law No. 4616.

- In the case of Yeter based a finding of a violation of Article 2 on the argument concerning the leniency of prison terms imposed on the police officers involved and the conditional release of one of one of them who served on 19 days as well as the application of Amnesty Law No. 4616.

Individual measures:

            1) Case of Demir Ceyhan and others, the Turkish authorities informed the Secretariat on 02/08/2006 that the Diyarbakır Assize Court decided on 27/02/2006 to discontinue the criminal proceedings against the prison doctor who had allowed the transfer of the applicants' relative to another city because the limitation period had expired. This decision is subject to appeal. Furthermore, on 12/04/2006 the Diyarbakır Assize Court decided to acquit the gendarmes who had been responsible for the transfer of the applicants' relative. The Assize Court acknowledged the judgment of the European Court finding that the Turkish authorities were responsible for the death of the applicants' relative, but concluded that the gendarmes (who were conscripts at the material time) acted upon the lawful orders of their superiors and on the basis of the medical report providing that the applicants' relative fit for transfer to another prison. There existed no other elements in the case-file establishing that the accused gendarmes had caused the death of the applicants' relative. This decision is also subject to appeal.

• Information is awaited on the outcome of these appeal proceedings.

            2) Sunal case, the Turkish authorities informed the Secretariat on 31/10/2005 that the Izmir Public Prosecutor had decided on 26/09/2005 to discontinue proceedings against the accused police officers because the limitation period had expired.

            3) Cases of Karabulut Mustafa, Yılmaz Hürriyet, Ağdaş, H.Y. and Hü.Y, Şahin Zülcihan and others, Şimşek and Yaman Abdülsamet:

• Information is awaited on the possibilities of reopening of domestic proceedings against the members of security forces accused of abuses or any other ad hoc measures taken or envisaged following the judgments of the European Court.

4) a) Cases of Sunal, Yeşil and Sevim, Tamer Fazıl Ahmet and others, Öktem and Türkmen (violations of Articles 3 and/or 13)

• Given the fact that criminal cases are time-barred in these cases, information is awaited on the measures envisaged, including possible disciplinary sanctions against the police officers.

5) Case of Türkmen (violation of Art. 6§1): This case presents similarities to the Gençel group (see Section 4.1). The European Court has reiterated its view that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal, if requested. The applicants cannot obtain reopening of proceedings because of the inapplicability of domestic law to their case. However, both applicants were released from prison in 2002 and 2003 on presidential pardons and they currently live in Germany where they were granted political asylum. In July 2006 their case was reopened in accordance with the provisions of the new Criminal Code. In February 2007, an assize court in Istanbul readjusted the applicants’ previous prison sentences to the new code, and thereby reduced their sentences to 6 years and 3 months’ imprisonment.

• Assessment: While these developments are welcome, it is understood that the assize court proceedings were limited to the recalculation of the length of sentence under the new criminal code, rather than a retrial on the merits.

• Information is therefore expected on measures envisaged to ensure them proper redress.

            6) Other cases: In accordance with the well-established practice of the Committee of Ministers, it is recalled that the respondent state has a continuing obligation to carry out effective investigations – all the more in cases entailing a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the cases of McKerr and other cases against the United Kingdom, Scavuzzo-Hager and others against Switzerland, the cases concerning the security forces in the Russian Federation).

• Information is expected on measures taken or envisaged by the Turkish authorities to ensure proper redress to the applicants.

General measures:

            1) Statutory limitations introduced with the entry into force of the new Criminal Code

• Information provided by the Turkish authorities:

- The new Criminal Code provides much longer prescription periods than the old Code. In the case of torture the prescription period is fifteen years, since Article 94 of the new Code punishes torture with a term of imprisonment of three to twelve years. The same prescription period shall apply when the crime is committed against a child, a disabled person, a pregnant woman, a lawyer or a police officer while exercising their functions. If the crime is committed in the context of sexual harassment, the fifteen-year prescription period will also apply.

- In cases of aggravated torture (Article 95 §1 of the Code), the prescription period shall be twenty years.

- If the infliction of torture causes the victim to suffer from a incurable illness, harms the functioning of organs or senses, provokes the loss of speaking ability or sterility or results in miscarriage (Article 95 § 2), the prescription period shall again be twenty years.

- If the victim dies as a result of infliction of torture (Article 95 § 4), the prescription period shall be thirty years.

• Information is awaited on the prescription periods in cases of death of victims under circumstances which engage the responsibility of security forces, as well as in cases where victims are killed by unknown perpetrators.

            2) Security of detainees during transfer to prisons or other detention facilities:

• Information provided by the Turkish authorities:

- The Ministry of Justice issued a circular on 27/06/2005 in order to ensure that all necessary precautions are taken by the authorities during transfer of detainees to prisons and detention facilities. The circular provides that all detainees should be examined by a doctor prior to transfer and that those who are found to be unfit to travel shall immediately be transferred to a hospital or a medical centre.

- The judgments of the European Court have been published and disseminated to the relevant authorities in the cases of Demir Ceyhan and others (this judgment can also be found at the website of the Court of Cassation http://www.yargitay.gov.tr/) and of Abdülsamet Yaman (the Bulletin of the Ministry of Justice of 19/04/2005, No. 273).

• Information is awaited on the publication and dissemination of the European Court'sjudgments, in particular to police forces, public prosecutors, assize courts and the Court of Cassation.

                       - 4 cases concerning non-enforcement of court decisions in cases concerning environmental protection

46117/99           Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

46771/99           Öçkan and others, judgment of 28/03/2006, final on 13/09/2006

17381/02           Lemke, judgment of 05/06/2007, final on 05/09/2007

36220/97          Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005 - Interim Resolution CM/ResDH(2007)4

(1), (2) and (3) Taşkın and others, Öçkan and others, and Lemke cases: These cases concern violations of the applicants' right to their private and family life and right to a fair trial due to decisions by the executive authorities to allow continuation of a gold-mining operation in Bergama using a sodium cyanide leaching process, in contravention of a Supreme Administrative Court decision of 13/05/1997 annulling the operation permit on account of the risk to the local ecosystem and to human health and safety posed by the chemicals.

In 1994 the Ministry of the Environment authorised the exploitation of the mine and granted permission for the use of sodium cyanide leaching after a preliminary public consultation and on the basis of an impact study, as required by the Environment Act.

Following the decision of the Supreme Administrative Court of May 1997, a report drawn up at the Prime Minister's request concluded that the threats to the ecosystem listed in the Supreme Administrative Court's decision had been reduced to a level below the threshold of acceptability. On the basis of that report, the authorities granted permission to continue operations using cyanide leaching at the mine, on a provisional basis. However, the courts overturned the report and imposed stays of execution on administrative decisions based on its conclusions.

In a “decision of principle” which was not made public, the Council of Ministers decided that the gold-mine could continue its activities. In March 2004 the Supreme Administrative Court ordered a stay of execution of that decision on the grounds that it had neither been published in the Official Gazette nor made public. An application for judicial review of the Council of Minister's decision is pending before the Supreme Administrative Court.

The European Court found that the government had failed in its obligation to guarantee the applicants' right to respect for their family life and right to a fair trial by annulling any useful effect of the procedural guarantees afforded to them by the applicable law and the judicial decisions taken. In so declaring, the Court based itself in particular on the fact that the administrative authorities had not ordered the closure of the mine immediately upon the Supreme Administrative Court's decision, but had on the contrary continued to issue operating permits despite the judicial decisions and the applicable law, most recently with the decision of the Council of Ministers (violation of Article 8).

The European Court also found that the administration's refusal to carry out the decision of the Supreme Administrative Court within the deadlines fixed by law and the fact that a further operation permit was issued as a direct result of the Council of Ministers' intervention, which was tantamount to circumventing a judicial decision, had constituted a breach of the applicants' right to effective judicial protection (violation of Article 6§1).

Individual measures: The applicants have informed the Secretariat that the Ministry of the Environment granted a new operating permit to the same private company on 26/08/2004. In the meantime, the applicants in the present cases and more than 1500 others have lodged applications with the European Court alleging violation of their rights under Articles 2, 6 and 13 of the Convention as a result of the resumption of the mining activity in Bergama.

            - Granting of a new operation permit:

• Information submitted by the Turkish authorities (933rd meeting (July 2005) and letter of 11/07/2007): The Turkish authorities informed the Committee that the Ministry of Environment's permission in question was granted on the basis of a fresh environmental impact report in order to eliminate the possible danger of the mining operation.

On 14/09/2005 the Turkish authorities reported that the Izmir Administrative Court had decided on 14/03/2005 to stay the execution of the decision to grant a new operation permit. This decision was annulled by the Izmir Regional Court on 14/04/2005 following an appeal lodged by the mining company.

In the context of these proceedings, an on-site examination was carried out on 27/11/2006 by three experts in the mining area and a technical report was drafted on 26/03/2007 to assess whether or not the mine has been operating in compliance with environmental standards since the new operation permit was obtained following the fresh environmental impact report.

According to the technical report:

- the fresh environmental impact report, which was submitted to the authorities by the mining company in 2004, is sufficiently detailed to cover all the questions related to the potential risks of the mining operation;

- the extraction and tailing procedures are applied in accordance with the most advanced methods recognised by mining technologies;

- the implementation of the project and its surveillance are fully compatible with legal and technical requirements;

- to prevent leakage of hazardous material, the tailing pond is isolated from the soil by a special layer and the underground waters are surveyed.

The three experts also recommended that the strictest checks must be performed on underground waters and that the isolation layer of the tailing pond must be renewed in the future to avoid any leakage.

The Turkish authorities pointed out that the experts' report will play a decisive role in a number of pending proceedings before administrative courts, including those at issue here.

On 13/04/2007 the Ministry of Environment informed the Izmir Administrative Court that the mining company had undertaken to perform the necessary checks in the mining area for a period of ten years. Depending on the assessment to be made by the authorities after ten years, the mining company might be requested to maintain its checks for an unlimited period of time.

On 09/05/2007 the Izmir Administrative Court decided to reject the applicants' request for stay of execution of the decision to grant a new operating permit.

The applicants' representative submitted on 17/03/08 that the Izmir Administrative Court dismissed the applicants' challenge against the new operation permit on 12/12/2007. The court is reported to have ruled on the grounds that a so-called “environmental situation assessment report” and the measures taken had been found adequate by the three experts appointed by the same court. The applicants appealed that decision arguing that the “environmental situation assessment report” which is the basis of the new operation permit, was devoid of legal basis.

The applicants submitted that a recent judgment of the 6th Chamber of the Supreme Administrative Court on 31/10/2007 had declared null and void the temporary Article 6 of the Environmental Impact Assessment Regulation, which provided for the situation assessment report. The appeal is pending.

            - Annulment of the urban plan for the mining area

On 21/04/2006 the Izmir Administrative Court annulled the urban plan made on 01/11/2004 for the mining area.

On 20/05/2006 the Office of the Governor of Izmir applied to the Supreme Administrative Court for the annulment of the decision of 21/04/2006 and requested a stay of execution of this decision.

On 08/06/2006 the Office of the Governor of Izmir informed the appropriate authorities (including the Governor of District of Bergama and the mining company) of the decision of the Izmir Administrative Court of 21/04/2006 and requested that the decision of the court be enforced.

On 11/07/2006 the Governor of Izmir requested the rectification of the decision of the Izmir Administrative Court of 21/04/2006 on the grounds that it was not clear whether or not the decision of annulment amounted to an obligation on the part of the administration also to annul the construction permit, the demolition of the mining site and the closure of the mine.

On 14/07/2006 the Izmir Administrative Court decided to reject the request for rectification on the ground that its decision was clear enough to be enforced. 

In July 2006 the Governor of Izmir wrote to the Office of the Prime Minister that a request for clarifications should be made to the Supreme Administrative Court concerning the question as to whether or not the enforcement of the decision of 21/04/2006 comprised annulment of the construction permit, the demolition of the mining buildings and the closure of the mine.

On 23/05/2007 the Supreme Administrative Court decided to uphold the decision of the Izmir Administrative Court of 21/04//2006, which annulled the urban plan for the mining area.

• Information is awaited first on the outcome of the appeal against the Izmir Administrative Court's decision of 12/12/07 dismissing the request for annulment of the new operation permit. Information is also awaited on how the domestic authorities will enforce the decision of the Izmir Administrative Court of 21/04/2006. Lastly, information is awaited concerning the extent to which the applicants or any other persons concerned had been involved in the decision-making process on the environmental impact report as required under the Convention (see §§ 118 and 119 of the judgment of the European Court).

General measures: See below

4) Ahmet Okyay case: This case concerns the national authorities' failure to enforce domestic courts' orders to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey. The administrative authorities have neither complied with an interlocutory injunction of June 1996 ordering the suspension of the power plants' operation, nor have they enforced, within the prescribed time-limits, the decisions of the Supreme Administrative Court of December 1996 upholding the first-instance court decisions finding that the power plants were polluting the environment. On the contrary, by a decision of September 1996, the Council of Ministers decided that the three thermal power plants should continue to be operated despite the court decisions.

The European Court found that the national authorities failed to comply in practice and within a reasonable time with the decisions of domestic courts. The Court noted in particular that the decision of the Council of Ministers had no legal basis and was obviously unlawful under domestic law. It was tantamount to circumventing the judicial decisions, a situation which adversely affects the principle of a law-based state, founded on the rule of law and the principle of legal certainty (violation of Article 6§1).

Individual measures: At the 955th meeting (February 2006), as well as in their reply of 09/03/2006 to the Secretariat's initial-phase letter, the Turkish authorities informed the Committee that desulphurisation filter systems were in the process of being installed in the three power plants. The plants are now being operated at minimum capacity in order to maintain the gas emission at the lowest level. The emission levels are checked regularly and the plants will be shut down if the emission of gas exceeds the permissible levels.

On 25/10/2006 the Turkish authorities informed the Secretariat of a number of administrative fines imposed on the Yatağan power plant as a result of the pollution it had caused. Four of these administrative fines were imposed in February, June, July and August 2006 respectively. The Turkish authorities also gave information on the compensation proceedings initiated against the three power plants on grounds of damages suffered as a result of pollution caused by the power plants.

• Interim Resolution CM/ResDH(2007)4: Given the absence of progress in the execution of this judgment, the Committee decided to adopt an interim resolution at its 987th meeting (February 2007) urging the Turkish authorities to enforce the domestic court orders imposing either the closure of the power plants or installation of the necessary filtering equipment without further delay.

• Response to the Interim Resolution: The Turkish authorities submitted at the 1020th meeting (March 2008) that filter mechanisms have already been installed in all three power plants. Until the installation, the power plants had been operating at minimum capacity without causing any danger to the environment.

• Assessment: In light of this information, no other individual measure is necessary in the case of Ahmet Okyay.

General measures (in respect of all four cases)

• Information provided by the Turkish authorities: They drew the Committee's attention to Article 138 of the Constitution and reiterated that the bodies of executive and the authorities must comply with court decisions. Furthermore, Article 28§3 of Law on Administrative Judicial Proceedings provides for the possibility of bringing compensation proceedings before the Supreme Administrative Court against the administration or the civil servant deliberately refusing to comply with court decisions. The Turkish authorities also provided examples of case-law of the Council of State to that effect. Lastly, the Turkish authorities provided information on the provisions concerning criminal sanctions against public officials who refuse to carry out a public duty or fail to enforce court decisions, as well as supporting examples of decisions of domestic courts where public officials were sanctioned.

In their letter of 11/07/2007 the Turkish authorities drew the Committee's attention to Articles 181 and 182 of the Criminal Code (in force since 01/06/2007) which sanction both intentional and unintentional disposal of hazardous substances in a way that might cause damage to the environment. Any person disposing of such hazardous substances shall be liable to terms of imprisonment ranging from six months to two years. The Code also provides that the terms of imprisonment shall be increased if the disposal of hazardous substances causes permanent damage to human health and to the environment.

The judgments of the European Court in these cases have been translated and disseminated. The judgments are also available at the internet site of the Ministry of Justice at http://www.inhak-bb.adalet.gov.tr/aihm/aihmtkliste.asp

Finally, at the 1020th meeting (March 2008), the Deputies noted the information provided by the Turkish authorities regarding the new provision of the Environmental Law which ensures the involvement of persons, such as inhabitants of relevant areas, civil society institutions etc, in the decision-making process on environmental issues and the recently introduced criminal liability for discharge of hazardous substances. The Deputies also noted that the Turkish authorities would consider in cooperation with the Secretariat the necessity of further general measures.

• Assessment of the information provided by the Turkish authorities: The domestic legal framework (in particular Article 138 of the Constitution and Article 28§3 of the Law on Administrative Judicial Proceedings) as well as examples of judicial sanctions demonstrate a healthy legal environment for ensuring respect for domestic court decisions. In addition, the legislative sanctions recently enacted against environmental polluters are also welcome developments. However, these procedural guarantees may prove ineffective in the face of high‑level political disregard as criticised by the European Court in the present cases.

In the light of the foregoing, the Turkish authorities may wish to draw the attention of the Council of Ministers and of the Ministry of Environment in particular to their obligations under the Convention to prevent new, similar violations. Information would also be necessary about the reaction of these authorities to the present judgments and possible other measures taken or envisaged.

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)

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.

16110/03           Karataş Şahin, judgment of 17/06/2008, final on 17/09/2008

The case concerns the fact that the applicant had been kept in detention for 43 days longer than the term of imprisonment to which he had been sentenced following several sets of proceedings against him. The European Court found that the applicant’s extended detention could not be considered as a regular detention under the Convention (violation of Article 5§1(a)).

The case also concerns the absence of a remedy to obtain compensation for the period of unlawful detention. The European Court noted that the government produced no examples of the application of Law No. 466 (Law on the payment of compensation to persons arrested or detained) (violation of Article 5§5).

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

• Assessment: no further individual measure seems necessary.

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations, in particular regarding remedies available to those in the applicant’s situation.

- 2 cases concerning the continuation of the applicants' detention in custody during the hours following the release order

18242/02           Değerli and others, judgment of 05/02/2008, final on 05/05/2008

21007/04           Özdemir, judgment of 18/11/2008, final on 18/02/2009

The Değerli 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 ranging 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.

In Özdemir case, the Court found that although the release order had been issued by the prosecutor on 27/03/2002, the applicant was not released from police custody until 28/03, at 13.30 (violation of Article 5§1).

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 measures envisaged or taken to prevent new, 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.

12863/02          Işıldak, judgment of 30/09/2008, final on 30/12/2008

The case concerns the unjustified interference with the applicant’s right to respect of his home as a result of the search carried out in his workshop, which was a part of his home, by police officers without a search warrant. The search in question was carried out in 2000 in accordance with Article 97 of the former Criminal Code which allowed the police to conduct searches without prior authorisation and had given them unfettered discretion to decide whether a search should be carried out and how extensive it should be.

The European Court found, without prejudice to the recently adopted legislation, that there was no reason to justify the lack of prior judicial review for a search to be carried out without a warrant. It also observed that at the material time the applicant did not have an effective remedy whereby he could obtain judicial review of the lawfulness and necessity of the search (violation of Article 8).

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

• Assessment: No other individual measure appears necessary.

General measures:

• Assessment: The Secretariat is studying the legislation adopted recently to assess whether it is capable of preventing similar violations in the future.

                       - 10 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

43955/02           Güzel, judgment of 21/10/2008, final on 21/01/2009

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

38327/04          Koç and others, judgment of 30/09/2008, final on 30/12/2008

25886/04          Nakçi, judgment of 30/09/2008, final on 30/12/2008

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, Güzel, Koç, Nakçi and Özkartal are still detained.

• Information is awaited on individual measures taken or envisaged in the Reyhan, Güzel, Koç, Nakçi 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.

23018/04+         Urcan and others, judgment of 17/07/2008, final on 17/10/2008

The case concerns a breach of the applicants’ right to freedom of association as a result of their conviction for participating in a strike organised to improve the working conditions of civil servants. The applicants, all members of the trade union that organised the strike, were convicted for being absent from their post under Article 236 of the old Criminal Code and were sentenced to imprisonment, commuted to a fine. They were also excluded temporarily from public service (violation of Article 11).

The European Court found that the sanction imposed on the applicants could not be considered necessary in a democratic society since it could dissuade trade union members from participating in other legitimate gatherings.

Individual measures:

• Information provided by the Turkish authorities (letter of 25/06/2009): the conviction of the applicant Aysun Urcan has been erased from her criminal record. A copy of her criminal record was received enclosed with the national authorities’ letter.

• Information is awaited on the erasure of the convictions from the criminal records of the other applicants concerned in these cases. 

General measures:

• Information provided by the Turkish authorities (letter of 25/06/2009): Article 236 of the former Criminal Code is no longer in force, having been replaced by Article 260 of the new Criminal Code.

Article 260 of the new Code in its first paragraph criminalises the collective abandonment or slow performance of duties, but provides in its second paragraph that, in case of temporary suspension or slowing down of work by public officials in relation to their professional or social rights and without harming the public service, either no penalty shall be imposed, or the penalty indicated at the first paragraph shall be reduced.

The commentary on Article 260 explains that in the application of this provision, the criminal judge has a margin of appreciation concerning mitigation or suppression of punishment if the conditions indicated in the second paragraph are fulfilled. 

Assessment: Article 260 of the new Code, in its second paragraph, unlike Article 236 of the former Criminal Code, gives the judge discretionary power to establish a fair balance between the needs of the public service and the right of state agents to protect their social rights and professional interests. In other words, to abandon or to slow down work is not automatically considered as a crime as former Article 236 did, but the judge has now the duty to verify whether this abandonment or non-performance could be considered a means for state agents to protect their social interests in the special circumstances of a case. If so, and unless the abandonment seriously affected the principle of continuity of the public service, either no punishment is imposed, or it is reduced.

• Information is awaited on the publication and dissemination of the Court's judgment to the relevant judicial authorities.

                        - 91 cases mainly concerning freedom of expression

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

                        CM/Inf(2003)43; CM/Inf/DH(2008)26

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

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).[105] [106]

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), and the Appendix containing the list of cases in the Inçal group).

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; CM/Inf/DH(2008)26

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

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 the Appendix containing the list of cases in the Inçal group). 

General Measures: See above (“freedom of expression” cases against Turkey).

                       - 4 cases concerning freedom of expression – broadcasting legislation

64178/00+         Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. No. 1, judgment of 30/03/2006, final on 30/06/2006, rectified on 05/12/2008

6587/03            Nur Radyo Ve Televizyon Yayıncılığı A.Ş., judgment of 27/11/2007, final on 02/06/2008, rectified on 03/03/2008

11369/03          Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. No. 2, judgment of 04/12/2007, final on 02/06/2008, rectified on 05/12/2008

10129/04           Özgür Radyo – Ses Radyo-Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 10/03/2009, final on 10/06/2009

These cases concern violations of the freedom of expression of the applicants, broadcasting companies, due to warnings and licence suspensions imposed in 1998, 1999 and 2000 by the Turkish broadcasting regulatory authority (RTÜK) under Articles 4 a), g) and j) of Broadcasting Law No. 3984, concerning defamation and incitement to violence and to separatism. Unlike the RTÜK and the Turkish administrative courts, the European Court considered that the statements at issue did not incite to violence or hate and covered questions of general interest. It furthermore took into account the fact that the applicant companies had quoted the sources of the statements, which had already been published by other media without being prosecuted. Furthermore, the Court considered that the penalties had been disproportionately severe and therefore not necessary in a democratic society (violation of Article 10).

Individual measures: In the Özgür Radyo cases, the Court awarded the applicant company just satisfaction in respect of the non-pecuniary damages sustained but not in respect of pecuniary damage, as the applicant company did not submit elements allowing such damage to be quantified. In the case of Nur Radyo, the Court did not award any damages.

• Assessment: No further individual measure appears to be needed.

General measures: These cases concern the Turkish broadcasting system and the interpretation given by RTÜK and administrative courts to Article 4 of Law 3984.

• In the light of the many significant legislative and other measures taken in the last few years to improve freedom of expression in Turkey (see the Inçal group, 22678/93, 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.

19353/03           Saygılı and others, judgment of 08/01/2008, final on 08/04/2008

The case concerns the unjustified interference with the applicants’ freedom of expression in that they were not able to prove their good faith or invoke public interest in the context of civil proceedings for defamation lodged against them (violation of Article 10).

In September 2001, the applicants published two articles in the daily newspaper Evrensel concerning the case of İrfan Bilgin in which the European Court found a violation of Article 2 of the Convention due to a disappearance during police custody. The articles suggested that the prosecutor in charge of the investigation had falsified the investigation report concerned. The prosecutor instituted civil proceedings for non-pecuniary damages against the applicants alleging that the articles were misleading and defamatory. The domestic courts held that the claimant’s personality rights had been infringed and ordered the defendants to pay compensation under Article 24 of the Civil Code and Article 49 of the Code of Obligations. The courts considered that there was no evidence in the case-file of the European Court that the claimant had failed his duties.

The European Court recalled that persons subject to judicial actions on account of statements made on subject of general interest, like in the present case, should be able to invoke their good faith to exonerate themselves. It recalled in this respect that the law applicable at the time made no specific provision for exceptions on the grounds of truthfulness and public interest. It considered that the impugned articles made allegations based on an analysis of the judgment in the İrfan Bilgin case, the material evidence it had taken into account, the statements made by the prosecutor and the witnesses interviewed by the Commission, and the statements made by the applicant’s lawyer in the case in question, all of which the applicants had been entitled to use, not only in their articles but also to prove their good faith and the truthfulness of their affirmations in the proceedings before the domestic courts. It concluded that there was no reason to doubt that the applicants had acted in good faith.

Individual measures: The European Court awarded just satisfaction for pecuniary and non-pecuniary damages suffered.

• Assessment: No other individual measure seems necessary.

General measures:

• The authorities are invited to provide information on measures taken or envisaged to introduce the exceptions of truthfulness and public interest in Turkish law through legislation and/or case law.

                        - 2 cases concerning freedom of expression – civil defamation proceedings

48176/99          Turhan, judgment of 19/05/2005, final on 19/08/2005, rectified on 30/03/2006

39656/03           Erdoğan Ayhan, judgment of 13/01/2009, final on 13/04/2009

These cases concern civil defamation proceedings brought against the applicants, by the then Minister of State who claimed that certain remarks in the applicant’s book constituted an attack on his reputation (in the Turhan case), and by an İstanbul district mayor, who claimed that the applicant, a practicing lawyer, referred to him as “cruel and a bigot” in a petition for his client (in Erdoğan case).

In the Turhan case the European Court noted that the contested remarks were value judgments on an issue of public interest, that their truthfulness was therefore not susceptible of proof and that they were based on information which was already known to the general public. Accordingly, the European Court found that the domestic courts had not convincingly established any pressing social need to subordinate the applicant’s right to freedom of expression to the protection of a public figure’s reputation. Neither has it appeared that the applicant’s statements had affected the Minister’s political career or his professional or private life (violation of Article 10).

In the Erdoğan case, the European Court noted that the contested remarks were value judgments, made in the context of judicial proceedings by the applicant, acting in his legal capacity as legal representative, and were set against a particular context connected to those proceedings. The Court noted that the limits of acceptable criticism are wider as regards a politician than as regards a private individual, and concluded that the interference with the applicant’s freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society” (violation of Article 10).

Individual measures: The European Court awarded just satisfaction in respect of both pecuniary and non‑pecuniary damages, thus compensating the applicants for the damages imposed by the domestic courts.

• Assessment: no further individual measure seems necessary.

General measures:

• Information is expectedon measures envisaged to remedy the problems highlighted by the European Court (i.e. interpretation of defamation provisions, including the distinction between value judgments and factual statements, in cases involving public figures and politicians). In any event the publication and wide dissemination of the judgment of the European Court would appear necessary.

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.

- 5 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

4211/02            Erükcü, judgment of 13/11/2008, final on 13/02/2009

56827/00           Düzgören, judgment of 09/11/2006, final on 09/02/2007

65344/01           Onaran, judgment of 05/06/2007, final on 05/09/2007

70335/01           Yurdatapan, judgment of 08/01/2008, final on 08/04/2008

The Ergin No. 6 case concerns a violation of the right to freedom of expression of the applicant, the editor-in-chief of a newspaper, in that he was fined in 1999, by a military court, under Article 155 of the former Criminal Code for having published statements which were considered to incite to abstention from military service, which is compulsory in Turkey. Similarly, the cases of Düzgören, Erükçü, Onaran and Yurdatapan concern the conviction of the applicants by military courts for distributing leaflets in support of a conscientious objector, except the Erükçü case, in which the applicant was convicted for submitting a false health report in order to be excempted from military service.

The European Court noted, that the actions concerned did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the convictions were not “necessary in a democratic society” (violations of Article 10).

The European Court also found that the military courts which tried the applicants (civilians) entirely composed of military judges, could not be regarded as independent and impartial jurisdictions (violation of Article 6§1).

Individual measures:

            1) Case of Ergin No 6: Confirmation has been received that the applicant's conviction was erased from his criminal record.

            2) Cases of Erükçü, 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.

                       - 3 cases concerning the independence and impartiality of military disciplinary courts

39429/98           Bayrak, judgment of 03/05/2007, final on 24/09/2007

30200/02           İrkin, judgment of 23/09/2008, final on 23/12/2008

27341/02           Veyisoğlu, judgment of 26/06/2007, final on 26/09/2007

These cases concern the lack of independence and impartiality of military disciplinary courts in proceedings against the applicants under Articles 56, 38 (in the Bayrak and Veyisoğlu cases), 55, 49 and 53 (in the İrkin case) of Law No. 477 (violations of Article 6§1). The applicants were sentenced to 75, 40 and 30 days' imprisonment respectively.

The European Court found that the members of the military disciplinary court were under the orders of the military hierarchy and their term of office was limited to 1 year. Furthermore the European Court noted in İrfan Bayrak judgment that the superior (appeal) court offered no appropriate guarantees to remedy these deficiencies.

Individual measures: The applicants are no longer detained.

General measures: On 13/02/2008, the Turkish authorities indicated that preparatory work was under way for the necessary measures to be adopted.

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

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.

64119/00+         Kayasu, judgment of 13/11/2008, final on 13/02/2009

This case concerns the violation of the freedom of expression of the applicant who was at the material time a prosecutor, due to his criminal conviction arising from terms used in the formulation of charges he prepared against former army generals involved in a coup d’Etat in September 1980 (violation of Article 10).

The European Court considered that the conviction of the applicant under section 159 of the Penal Code for insult to the armed forces, and the consequences of this conviction, i.e. dismissal from the function of prosecutor and ban on exercising the calling of advocate (section 5(b) of Law No; 1136 on the profession of advocate) were disproportionate with regard to any legitimate aim pursued.

The case also concerns the absence of any means of appeal against the disciplinary sanctions imposed on the applicant by the Supreme Judicial Council (violation of Article 13 in conjunction with Article 10).

The European Court found that Article 129 of the Turkish Constitution vested Parliament with the power to remove certain categories of disciplinary sanctions (warnings and reprimands) in respect of all public officials from judicial review. In addition, Article 159 exempts all decisions of the Supreme Judicial Council from appeal before a court of law.

Furthermore the Court did not consider that to contest a disciplinary punishment before the board set up within the Supreme Judicial Council pursuant to its rules to examine such contestations provided an adequate response to the requirements of Article 13, in that the members of the board were the same people who had pronounced the disciplinary punishment at issue within the Supreme Council, whose rules provided no measure to guarantee the impartiality of its members sitting on the board.

Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage.

• Information is awaited on measures making it possible to provide appropriate redress to the applicant, erasing the consequences of the violation found, such as the removal of the ban on the exercise of judicial functions and the erasure of the conviction from the applicant’s criminal record.

General measures:

            1) Lack of an effective appeal against certain categories of disciplinary sanctions (Article 129 of the Constitution): The Turkish authorities indicated on 29/11/2007 in the context of the Karaçay case (6615/03) (Section 4.2) that a Bill on public officials (Kamu Personeli Kanunu Tasarısı) had been drafted by the competent legislative service. Section 95 of this Bill would provide that “warnings” would be subject to judicial review.

• Information is awaited on the state of advancement of this Bill.

            2) Lack of an effective appeal against decisions of the Supreme Judicial Council:

• Information is awaited on the preparation of an action plan, as provided in Minister’s Deputies’ working methods (see CM/Inf(2004)8-final) including a calendar for the implementation of the general measures to be taken. A letter will be sent to the government to this effect.

• Information is also awaited on the dissemination of the European Court’s judgment to the judicial authorities concerned.

28940/95           Foka, judgment of 24/06/2008, final on 26/01/2009

This case concerns the infringement of the applicant’s right to freedom of expression due to the unjustified confiscation of her cassettes, books, diary and maps by a public authority (violation of Article 10).

On 13/01/1995 the applicant, a Greek-Cypriot resident of the northern part of Cyprus, travelled to the Ledra Palace checkpoint to cross into the northern part of Cyprus. At the checkpoint the applicant’s bus was met by agents of the “Turkish Republic of Northern Cyprus” (“TRNC”) who took the applicant to a police station nearby. The applicant’s bag was searched and a number of cassettes, books, a diary and maps containing historical and political information were confiscated.

The European Court considered that the respondent state had not shown that the confiscation of the items corresponded to a “pressing social need” in the meaning of its case-law. The Court was therefore unable to reach the conclusion that the interference with the applicant’s right to freedom of expression was justified under Article 10(2).

Individual measures: The applicant was awarded just satisfaction to the value of the confiscated items.

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

General measures:

• Information is awaited on any measures taken or envisaged in the light of the judgment.

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.

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.

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.

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.

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.

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.

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, rectified on 10/06/2009

The case concerns the domestic courts' refusal in 1995 to allow the applicant to have only her maiden name registered after her marriage. This decision was taken on the grounds of Article 153 of the Turkish Civil Code which obliged married women to bear their husband's name throughout their married life. This provision was amended in 1997 to allow married women to put their maiden name in front of their husband's surname. The new Civil Code, enacted in November 2001, maintained this rule (new Article 187).

The European Court noted, with reference to Committee of Ministers' Resolution (78) 37 on the equality of spouses in civil law and Recommendation R (85) 2 on legal protection against sex discrimination, that the advancement of the equality of the sexes was today a major goal in the member states of the Council of Europe.

Given this advancement and the importance of the principle of non-discrimination, the Court noted that states may not impose on married women the tradition of reflecting family unity through the husband's name. Consequently, the Court considered that the obligation on married women, in the name of family unity, to bear their husband's surname - even if they may put their maiden name in front of it - provided no objective and reasonable justification for the gender-based difference in treatment (violation of Article 14 taken in conjunction with Article 8).

Individual measures: Following the judgment of the European Court, the Ministry of the Interior issued an identity card for the applicant under her maiden name.

General measures:

• Information provided by the Turkish authorities (21/06/2005):

- On 11/06/1985, Turkey ratified the UN Convention on the Elimination of All Forms of Discrimination against Women, which became directly applicable in domestic law after the amendment made to Article 90 of the Constitution in May 2004 providing supremacy to Turkey's obligations in the field of human rights over domestic law. States Parties to the Convention are under an obligation to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, in particular the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation (Article 16 (g) of the Convention).

- The Ministry of Justice is preparing a draft law which is destined to amend Article 187 of the Civil Code in order to ensure that future violations of the same kind will be avoided. At the 997th meeting (June 2007) the Turkish authorities declared that the preparatory work would be finalised for the adoption of this draft law. However, they did not provide the Committee with a time-table.

- The judgment of the European Court was published on the Bulletin of Ministry of Justice of 17/05/2005, No. 275, p. 39. At the 928th meeting (June 2005) the Turkish authorities also informed the Committee that the judgment had received wide public attention in Turkey and hoped that similar violations would be avoided in the future.

On 11/04/2006 the Turkish authorities informed the Secretariat that the issue of an identity card for the applicant with her maiden name on it constituted a good example of the direct effect given by the executive authorities to the Convention and to the case-law of the European Court notwithstanding the impugned legislation.

• Information is awaited on the progress of the draft law destined to amend Article 187.

8932/03            Paşaoğlu, judgment of 08/07/2008, final on 08/10/2008

The case concerns the unjustified interference with the applicant’s right to respect for his private and family life due to the rejection of his request for renewal of his passport in 1999. The applicant, who resides with his wife and daughter in Greece, was denied renewal on account of a restriction registered in his name by the Ministry of the Interior.

The European Court observed that the measure imposed on the applicant did not stem from criminal proceedings or the execution of a detention order. The restriction in question was justified by the applicant’s family ties to a certain Georgios Andreadis, who was not permitted entry to Turkey, and by the existence of a “restriction notice” to which the applicant had no access. The Court concluded that to maintain the measure for a long period, in the absence of any criminal charge against the applicant, was disproportionate and could not be regarded as “necessary in a democratic society” (violation of Article 8).

Individual measures:

• Information provided by the Turkish authorities (letter of 25/06/2009):

-           in compliance with the European Court’s judgment of 08/07/2008, restriction notice on the applicant’s passport of was lifted. There is thus no restriction on the applicant’s entering and leaving Turkish territory;

-           the applicant is not wanted by the authorities in connection with any offence;

-           as of 22/05/2009, no application has been lodged by the applicant for the renewal of his passport.

• Assessment: No further individual measure appears necessary.

General measures:

• Information is awaited on the publication and dissemination of the Court's judgment to the judicial authorities and relevant administrative bodies.

16330/02           Gülmez, judgment of 20/05/2008, final on 29/09/2008

The case concerns first, the violation of the applicant’s right to a fair hearing in the context disciplinary proceedings brought against him by the prison authorities while he was detained on remand. The European Court noted that according to Article 6 of Law No. 4675, appeals against disciplinary sanctions were examined in camera on the basis of the case-file and that the applicant had no opportunity to defend himself with the assistance of a lawyer (violation of Article 6§1).

The case also concerns a breach of the applicant’s right to respect for his private life in that visiting rights were restricted for a year. The European Court noted that the legislation at the material time did not indicate in precise terms the punishable acts and related penalties and left the authorities a wide degree of discretion in determining disciplinary sanctions. This situation did not meet the “quality of law” requirement under the Convention (violation of Article 8).

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

Individual measures are linked to the adoption of general measures (see below).

General measures: Under Article 46 of the Convention, the European Court concluded that the violation in this case stemmed from the Turkish legislation, namely Law No. 4675 on Enforcement Judges. There are a number of similar applications pending before the Court, which is indicative of a systemic problem.

In this respect it took note of the entry into force of the Law on the Enforcement of Sentences and of Preventive Measures in 2005 and of the new provisions on disciplinary questions which clearly specify what are punishable acts and what the penalties are. It noted nonetheless that there had been no change in respect of the legal lacunae concerning the absence of hearings and the ban on defendants’ defending themselves in person or through counsel.

• Information is awaited on measures taken or envisaged with a view to allowing public hearings in disciplinary proceedings in such circumstances, in the light of the European Court’s findings (§§ 60 and 63 of the judgment).

- 5 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

9907/02            Araç, judgment of 23/09/2008, final on 23/12/2008.

41296/04+         Karaduman and Tandoğan, judgment of 03/06/2008, final on 03/09/2008

37829/05          Yılmaz Melek Sima, judgment of 30/09/2008, final on 06/04/2009

These cases concern violations of the applicants’ right to a fair trial due to the failure to provide them with a copy of the written opinion of Public Prosecutor before the Council of State on the merits of the appeals they had lodged (violations of Article 6§1). It may be noted that the European Court had previously found similar violations with regard to the non-communication of the written opinion of the Public Prosecutor before the Court of Cassation (see, the case of Göç, 36590/97, in Section 6.2).

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.

- 2 cases concerning the unfairness of certain judicial proceedings in which the request for annulment of an administrative act was denied and the administration refused to submit a classified file

70516/01           Dağtekin and others, judgment of 13/12/2007, final on 13/03/2008, rectified on 21/05/2008

31881/02           Gencer, judgment of 25/11/2008, final on 25/02/2009

These cases concern the unfairness of civil proceedings brought by the applicants to complain of the fact that the Ministry of Agriculture (in the Dağtekin case) or by the Directorate General for Agricultural Reform) (in the Gencer case) had revoked the applicants’ leasehold on agricultural land situated in the South-East following a security enquiry. The courts rejected the applicants’ appeal even though the Ministry and the Directorate General refused to disclose the documents on the basis of which the lease had been revoked.

The European Court held that the conclusions of the security investigation were not revealed to the applicants or the courts, and that the applicants had been deprived of sufficient safeguards against any arbitrary action on the part of the authorities thus infringing the applicants’ right to a fair hearing (violations of Article 6§1).

Individual measures:

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

General measures: Under the last sentence of Article 22§3 of Law no 2577 on administrative procedure, no defence submission by the administration is taken into account by the courts if it is based on information or documents withheld on grounds of national security or vital interests of the state.

• Assessment: This provision appears to be in line with the Convention’s requirements as it excludes this type of defence from administrative proceedings.

• Information is awaited on the publication and dissemination of the European Court’s judgment to the judicial authorities.

- 7 cases concerning the violation of the right of access to a court due to the administrative courts' refusal to grant legal aid for court fees

52658/99           Yiğit Mehmet and Suna, judgment of 17/07/2007, final on 17/10/2007

54179/00+         Amaç and Okkan, judgment of 20/11/2007, final on 20/02/2008

50939/99           Bakan, judgment of 12/06/2007, final on 12/09/2007

17582/04           Kaya Eyüp, judgment of 23/09/2008, final on 23/12/2008

33612/03           Öner Ciğerhun, judgment of 20/05/2008, final on 20/08/2008

18404/04           Serin, judgment of 18/11/2008, final on 18/02/2009

20400/03           Tunç, judgment of 21/02/2008, final on 07/07/2008

These cases concern the refusal of administrative courts to grant legal aid to the applicants because either their actions were ill-founded (Bakan, Kaya Eyüp), or they had failed to prove their absence of means as required (Tunç, Öner Ciğerhun, Serin) or because appellants represented by counsel could not be deemed to require legal aid (Bakan, Yiğit Mehmet and Suna, Amaç and Okkan).

The European Court observed that the amount to be paid in court fees represented a considerable sum for the applicants and that the dismissal of their applications for legal aid had totally deprived them of the possibility to have their case heard by a court. This being so, the Court found that the state had not fulfilled its obligation to regulate the right of access to a court in conformity with the Convention (violations of Article 6§1).

Individual measures: The Court awarded the applicants just satisfaction in respect of the damage sustained, except in the Eyüp Kaya and Amaç and Okkan cases.

In addition, in all cases except for that of Eyüp Kaya, the Court considered that the most appropriate form of redress was to reopen the proceedings before the administrative courts in conformity with the requirements of Article 6§1, if the applicants so wished.

• Information is awaited in this respect.

General measures: It is noteworthy that in the Bakan, Yiğit Mehmet and Suna, and Amaç and Okkan cases, the reasoning behind the decisions not to grant legal aid (i.e. those who are represented by counsel are not entitles to legal aid) is based on well-established case-law rather than on procedural law. Thus, in addition to the publication of the European Court's judgment on an official website which is the habitual practice of the Turkish authorities, targeted publication and dissemination of the judgment to higher courts would seem necessary.

In this connection it may be noted that the judgment in Yiğit Mehmet and Suna has been published on the website of the Ministry of Justice: www.inhak-bb.adalet.gov.tr/aihm/karar/mehmetvesunayigit.doc.

• Information is still awaited on targeted dissemination, as well as on recent case-law, if there is any, demonstrating that the European Court's conclusions have been taken into consideration by domestic courts.

36533/04           Mesutoğlu, judgment of 14/10/2008, final on 14/01/2009

This case concerns the unfairness of certain administrative proceedings in that domestic courts interpreted provisions of the Code of Administrative Procedure in so excessively formalistic a way that the applicants were denied their right of access to a court (violation of Article 6§1).

In June 2000, the applicants sued the municipality of Elaziğ for damages before the first-instance court of that town, alleging the municipal authorities’ responsibility in relation to a traffic accident which caused the death of the father of one applicant and the son of the other.

In November 2000, the first-instance court declared that it was not competent to try the case ratione materiae and ordered the transfer of the dossier to the Malatya Administrative Court. However, in December 2002, the administrative court declared, at a late stage in the proceedings, that the applicant’s suit was inadmissible. It considered that Article 9 of the Code of Administrative Procedure did not provide that an administrative court might be seised of a case on the basis of the transfer of a dossier from a civil court following a conclusion of incompetence ratione materiae, and that the applicants should themselves have brought their appeal directly before the competent administrative court.

The European Court considered that such a strict interpretation of the provisions of the Code of Administrative Procedure had prevented the applicants from obtaining an examination of the merits of their case by a competent court and had denied them their right of access to justice.

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

• Information is awaited as to whether it is possible to reopen the proceedings before the Malatya Administrative Court if the applicants so request.

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations and on the dissemination of the European Court’s judgment to administrative courts and the Council of State.

18753/04           Tanay, judgment of 09/12/2008, final on 09/03/2009

This case concerns a violation of the applicant’s right of access to a court in civil proceedings to obtain an increase in the compensation in an expropriation case.

In September 2000, the applicant’s counsel brought an action before a civil court seeking increased compensation. Despite the expiry of the statutory time-limit, the civil court accepted the case on grounds of a medical report of the Forensic medical institute confirming that counsel had had health problems preventing her from lodging the case earlier. In March 2003, the Court of Cassation quashed the decision, quoting the applicant's name, instead of that of his representative, as the person who had been ill. It stated that even if the applicant had been ill, his lawyer could have lodged the claim within the statutory time-limit. In May 2003, the Court of Cassation dismissed the applicant’s rectification request, holding that “amending the factual error would not affect the outcome”.

The European Court considered that in refusing to correct the factual error, the Court of Cassation had given no grounds to justify its decision and that correcting the factual error would have made a critical difference to the assessment of the applicant’s compliance with the domestic rules of procedure. It thus concluded that Court of Cassation’s unreasoned decision violated applicant’s right of access to court (violation of Article 6§1).

Individual measures: The European Court considered that the most appropriate form of redress would be to reopen the appeal proceedings, correcting the factual error, should the applicant so request. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

• Information is awaited on the possibilities of reopening the proceedings in the applicant’s case.

General measures:

• Information is awaited on the publication of the European Court’s judgment and its dissemination, in particular to the Court of Cassation.

18384/04           Oral No. 2, judgment of 25/11/2008, final on 25/02/2009

This case concerns the unfairness of certain proceedings before the tax tribunal in that an expert report which was crucial to the outcome of the trial was not communicated to the applicant who was thus denied the possibility of making observations concerning the expert’s conclusions (violation of Article 6§1).

In January 2000, the applicant seised the tax tribunal to contest fiscal fines imposed upon him by the municipal authorities of Küçük Cekmece, contending, counter to the opinion of the municipality, that his earlier property tax declarations had been correct. The tribunal called for an expert report upon which its verdict was based but which was not disclosed to the applicant.

The European Court considered that the failure to disclose the expert report, which had a determining effect on the outcome of the proceedings, had placed the applicant in a situation of clear disadvantage as against the tax administration. It also considered that the inclusion of the report in the tax tribunal’s dossier was not a means of remedying the applicant’s situation.

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained. With regard to pecuniary damage, the Court held that it could not speculate as to the outcome of the proceedings had the violation not occurred.

• Information is awaited as to whether it is possible to reopen the proceedings at issue before the tax tribunal.

General measures:

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

37483/02           Erdagöz Güzel, judgment of 21/10/2008, final on 06/04/2009

The case concerns an infringement of the applicant’s right to respect of her private life due to the refusal by a domestic court by a judgment which was not based on any clearly established legislation or any sufficient and relevant reasoning, of an action for rectification of her name (violation of Article 8). The applicant brought an action for rectification of the spelling of her forename, asserting that she was called “Gözel”, not “Güzel”. The courts refused her application on the ground that the spelling which the applicant wished to use was based on the regional pronunciation of the word chosen as the name did not appear in the dictionary of the Turkish language.

The Court noted that, the domestic court mentioned neither a legal provision nor a conflict of public or private interest with the “legitimate interest” alleged by the applicant.

In the Court's opinion, Turkish law did not indicate with sufficient clarity the scope and manner of the discretionary power of authorities with respect to the restrictions on the rectification of names. Furthermore the legislation concerned did not offer adequate safeguards to prevent possible abuses in the exercise of such restrictions.

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

• Information is awaited on measures taken or envisaged to allow the applicant to rectify her name as she wishes unless there are sufficient and relevant reasons for not doing so.

General measures:

• Information is awaited:

- on the legislative framework applicable to the change of name, particularly the scope of the discretionary power of the authorities, and measures envisaged to be taken to prevent new, similar violations;

- on the publication of the judgment of the European Court and its wide dissemination to all competent authorities.

2334/03            Kozacioğlu, judgment of 19/02/2009 – Grand Chamber

The case concerns unjustified interference in the right of the applicants (heirs of Mr Kozacıoğlu) to the peaceful enjoyment of their possessions, in that domestic law on the expropriation of cultural assets made it impossible to fix a reasonable amount of compensation in relation to the value of the property (violation of Article 1 of Protocol No. 1).

In November 1990, as part of a national heritage protection programme, a building belonging to Mr Ibrahim Kozacıoğlu (“the testator”) situated in Tarsus, was classified as a “cultural asset” due to its rarity and its architectural and historic interest. In April 2000 the building was expropriated and compensation paid to the testator on the date of transfer of the property. In proceedings brought by the testator to have the compensation increased, an expert panel considered that the architectural, historical and cultural characteristics of the building justified an increase of 100%. Additional compensation was therefore awarded to the testator by the first-instance court.

In November 2001 the Court of Cassation set aside the judgment at first instance, considering that a 100% increase in compensation could not be justifiable as, under the terms of Article 15.d of Law No. 2863 on the protection of the national heritage, considerations of architectural or historic interest of or rarity could not be taken into account in establishing the value of an asset.

The European Court found that the requirement of proportionality between deprivation of property and the aim of public utility rendered it essential to take account to a reasonable extent of certain specific characteristics (architectural, historic and cultural) of the property at issue in determining appropriate compensation. Thus the fact that the applicable domestic law categorically ruled out this possibility imposed an excessive and disproportionate burden on the applicants.

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

• Assessment: no further individual measure seems necessary.

General measures:

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

14340/05           Fener Rum Patrikliği (Patriarcat œcuménique), judgment of 08/07/2008, final on 08/10/2008

The case concerns the violation of the right to peaceful enjoyment of the property of the applicant Orthodox Church in Istanbul.

In 1902 the applicant church acquired and duly registered certain real property. In 1903 a foundation of the Orthodox minority was given the use of the property as an orphanage. In 1936 the foundation filed a declaration mentioning the property in accordance with a law of 1935 by virtue of which it had obtained legal personality. However, in 1964 the Turkish authorities ordered the foundation to vacate the premises for safety reasons. In 1997, the Directorate General for Foundations issued a decision to the effect that the foundation was “defunct” and took over the management of it. This decision was later confirmed by domestic courts. In 1999, the Directorate General for Foundations brought legal action to have the applicant’s title annulled and the property re-registered in the name of the foundation. Eventually, in 2004 the Court of Cassation upheld the order of the lower court to register the property in the name of the foundation. It held that, since the declaration registered by the foundation in 1936, the property had belonged to the foundation and no longer to the applicant church.

The European Court noted that the ownership of the property had not been called into question by the domestic courts or the administrative authorities; either after its acquisition in 1902 or after the declaration of 1936, until 1997 when the action for annulment of title was brought. The ownership had thus remained unchallenged from 1964, when the property was vacated for safety reasons, to 1997.

From 1964, the use of the property by the foundation had in fact virtually ceased. The European Court emphasised that the foundation itself had never asserted that it had title over the property, including in the declaration of 1936.

Consequently, the European Court held that the restricted use of the property over a long period of time could not lead to the deprivation of the title. Moreover, the fact that the Turkish authorities failed to pay to the applicant any compensation for the said property breached the fair balance between the protection of the title and the public interest (violation of Article 1 of Protocol No. 1).

Individual measures: The European Court noted that the question of just satisfaction was not ready for decision and reserved it in its entirety.

General measures:

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

44088/04           Menemen Minibüsçüler Odası, judgment of 09/12/2008, final on 09/03/2009

This case concerns an unjustified interference in the right of access to a court of the applicant, a chamber of commerce engaged in private trade providing transport services for the public.

The applicant was not informed when a competing co-operative appealed against administrative acts having an impact on its public transport activities. This was in spite of the wording of section 31 of the Code of Administrative Procedure which provides essentially that the judge must, ex officio, notify the introduction of administrative appeals to those to whom the matter at issue seems to present an interest.

The European Court found that the failure to comply with this provision had prevented the applicant from having a hearing in a matter concerning its rights and obligations (violation of Article 6§1).

Individual measures: The European Court rejected the applicant’s claim for just satisfaction in respect of pecuniary damage, considering that it could not speculate as to the outcome of the proceedings had the violation not occurred. The applicant made no claim in respect of non-pecuniary damage.

• Information is awaited as to whether it is possible to reopen the proceedings before the İzmir Administrative Court if the applicant party so wishes.

General measures:

• Information is awaited on measures taken or envisaged to avoid new, similar violations, as well as on the dissemination of the European Court’s judgment to administrative tribunals and the Council of State.

- 28 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

42894/04+         Arat and others, judgment of 13/01/2009, final on 13/04/2009 rectified on 29/06/2009

5325/02+          Aygün and others, judgment of 20/11/2007, final on 20/02/2008

35075/97           Baba, judgment of 24/10/2006, final on 24/01/2007

14558/03           Buyruk, judgment of 08/04/2008, final on 08/07/2008

74069/01+        Çiçek and Öztemel and 6 other cases, judgment of 03/05/2007, final on 03/08/2007, rectified on 23/10/2007

2620/05            Çoban and others, judgment of 24/01/2008, final on 24/04/2008

28152/02           Demirhan, Görsav and Çelik, judgment of 05/06/2007, final on 05/09/2007

77361/01           Dildar, judgment of 12/12/2006, final on 12/03/2007

22261/03           Durmaz M. Ali, judgment of 08/01/2009, final on 08/04/2009

28877/03           Ekici and others, judgment of 23/09/2008, final on 23/12/2008

38323/04           Kaçar and others, judgment of 22/07/2008, final on 22/10/2008

29016/04           Kaplan Mehmet, judgment of 09/12/2008, final on 09/03/2009

3224/05            Kaplan Mehmet Ali and others, judgment of 16/12/2008, final on 16/03/2009, rectified on 09/06/2009

36424/06           Kılıç Kemal, judgment of 13/01/2009, final on 13/04/2009

31277/03           Kranta, judgment of 16/01/2007, final on 16/04/2007

27817/04           Kuş, judgment of 08/07/2008, final on 01/12/2008

45559/04           Şahin Abidin, judgment of 18/12/2007, final on 18/03/2008

6124/02            Şahin Mehmet Emin, judgment of 24/03/2009, final on 24/06/2009

11912/04           Sakarya, judgment of 20/05/2008, final on 01/12/2008

11098/04           Sarıkaya Yavuz, judgment of 13/01/2009, final on 13/04/2009

13090/04           Selçuk Mehmet, judgment of 10/06/2008, final on 10/09/2008

27402/03           Sevgili, judgment of 18/12/2007, final on 18/03/2008

37054/03+         Tok and others, judgment of 20/11/2007, final on 20/02/2008

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, Kaplan Mehmet, Sakarya and Sevgili the just satisfaction awarded by the European Court in respect of pecuniary damages were paid to the applicants. In the cases of Selçuk Mehmet and Kaplan Mehmet Ali, the domestic judgments have been implemented. The sums awarded by the European Court in respect of non-pecuniary damage were paid.

• 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, Yerlikaya, Arat, Durmaz, Ekici, Kılıç Kemal, Sahin Mehmet Emin, Sarıkaya Yavuz.

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).

- 2 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, 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.

2) Nacaryan and Deryan case: The European Court’s judgment on just satisfaction became final on 24/05/2009. The Court awarded each applicant a sum in respect of pecuniary damage.

• Assessment: In these circumstances no further individual measure seems necessary in these cases.

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).

- 7 cases concerning the lack of compensation following annulment of titles to plots of land in the framework of the public forest law regime

1411/03            Turgut and others, judgment of 08/07/2008, final on 26/01/2009, rectified on 22/09/2009 and of 13/10/2009, possibly final on 13/01/2010

17203/03           Devecioğlu, judgment of 13/11/2008, final on 04/05/2009

35785/03           Köktepe, judgment of 22/07/2008, final on 26/01/2009

18257/04           Rimer and others, judgment of 10/03/2009, final on 10/06/2009

36192/03           Şatır, judgment of 10/03/2009, final on 10/06/2009

45651/04           Temel Conta Sanayi ve Ticaret A.Ş., judgment of 10/03/2009, final on 10/06/2009

16009/04           Vural Nural, judgment of 10/03/2009, final on 10/06/2009

These cases concern the violation of the applicants’ right to the peaceful enjoyment of their possessions in that they were not compensated for the cancellation of the inscription of their property in the land register. The domestic decisions to cancel the applicants’ property titles were based on the fact that the land at issue was designated public forest, which could not be the object of individual property title. The applicants sought in vain to obtain damages in respect of the prejudice occasioned by the loss of their property.

The European Court observed that the aim of depriving them of their property was related to a matter of public utility, namely the protection of nature, of the forest and of the environment in general. Thus it pursued a legitimate aim. However, the Court underlined that when the land was purchased, the land register contained no mention suggesting that the land was part of the public forest area and thus the applicants could have no knowledge of the designation of their land. The Court accordingly considered that the total absence of compensation, not justified by any exceptional circumstance, breached the necessary balance between the protection of private property and the general interest (violation of Article 1 of Protocol No. 1).

Individual measures: The Court reserved the application of Article 41 of the Convention.

General measures:

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

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.

- 19 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

33431/02           Abaci, judgment of 07/10/2008, final on 07/01/2009

23249/04           Ardıçoğlu, judgment of 02/12/2008, final on 02/03/2009

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

20606/04           Berber, judgment of 13/01/2009, final on 05/06/2009

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

16858/05+         Terzioğlu and others, judgment of 16/12/2008, final on 16/03/2009

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 provided by the Turkish authorities (letter of 17/07/2009): The Court of Cassation has developed new case-law according to which the state has an objective responsibility for keeping the records in the land register and the administration has to pay damages to those who sustain loss as a result of improper registration. A certain number of consequences arise from this new case-law of the Court of Cassation:

- Objective responsibility of the state: In a judgment of 18/09/2008 (E. 2007/14851, K. 2008/10543), the Court of Cassation considered that the responsibility indicated by Article 1007 of the Civil code ("The state is responsible for all damages arising out of the administration of the land register"), is an objective responsibility which does not depend on the existence or not of a fault. The authorities explain that in this case, the first-instance courts had cancelled the plaintiff’s title deed, considering that the plots of land were located on the seashore, in spite of the fact that there was no indication on this point in the land register and the plaintiff had bought this land relying on these registers. The Court of Cassation quashed the decision rendered by the first-instance court, considering that it was necessary to award compensation to the plaintiff by relying on the objective responsibility of the state as enshrined in Article 1007 of the Turkish Civil Code. The same principle was reiterated by the Court of Cassation in its judgments of 29/11/2007(E. 2007/1940, K. 15047), 03/04/2008 (E. 2007/517, K. 2008/177) and 25/11/2008 (E. 2008/2501, K. 2008/14587).

The Turkish authorities underline that this principle developed by the case-law of the Court of Cassation mentioned above, concerns not only cases concerning the coastal domain: the Court of Cassation applies the principle of objective responsibility of the state in every case where there is a shortcoming in holding records in land registers. In its judgment of 10/02/2005 (E. 2005/503, K. 2005/1111), the Court of Cassation awarded compensation to the plaintiff on the ground that he had sustained loss because of the defective determination of his land’s coordinates on the land register. Also, omission to update land registers was considered by the Court of Cassation as an element which engages the pecuniary responsibility of the state according to the Article 1007 of the Civil Code (judgment of 07/12/2005, E. 2005/4-54, K. 2005/708).

- The good faith of the buyer: In its judgment of 03/04/2008 (E. 2007/517, K. 2008/117), the Court of Cassation considered that a plaintiff is presumed to have acted in good faith if he/she bought his/her land relying on land registers. This principle was repeated in other judgments of the Court of Cassation (judgments of 29/11/2007 -E. 2007/1940, K. 15047-, 18/09/2008 -E. 2007/14851, K. 2008/10543- and 25/11/2008 -E. 2008/2501, K. 2008/14587-).

- Compensation: In cases concerning the annulment of a plaintiff’s title deed on the ground that the land in question was situated on the seashore, the Court of Cassation condemns the administration to pay damages (equivalent to the rate of compensation for expropriation) to the victims if the damage results from the defective holding of land registers by the state. Thus, in its judgment of 29/11/2009 (E. 2007/1940, K. 2007/16047), the Court of Cassation awarded compensation to the plaintiff, considering that his/her title deed had wrongly been crossed off the land registers. As for the amount of the compensation in question, it corresponds to the exact value of the seized land (for example, judgment of 13/01/2008, E. 2008/16, K. 2008/274). On the other hand, in its judgment of 15/07/2008 (E. 2006/247, K. 2008/129), the Court of Cassation referred directly to Article 41 of the European Convention and condemned the administration to pay the exact value of the land determined by the experts.

- Consideration of the case-law of the European Court: in its judgment of 12/11/2007 (E. 2007/9403, K. 2007/10807), the Court of Cassation, recalling that the European Convention was a part of the Turkish law by virtue of the Article 90 of the Constitution, referred to the European Court’s judgment in Doğrusöz and Arslan (1262/02), in finding that the interference with the property rights of the plaintiff was not proportionate with the legitimate aim pursued because of the excessive burden imposed on him/her. Referring to Article 41 of the European Convention, the Court of Cassation awarded compensation to the plaintiff (same principle, the judgments of 24/09/2008 –E. 2008/7459, K. 2008/9727-, 17/09/2009 –E. 2008/7386, K. 2008/9359).

The Turkish authorities consider that a new, effective and rapid domestic remedy has been provided through the well-established case-law of the Court of Cassation.

• Assessment: the information submitted by the Turkish authorities is under assessment.

- 8 cases mainly concerning the unfairness of criminal proceedings due to the lack of legal assistance during custody

36391/02           Salduz, judgment of 27/11/2008 – Grand Chamber

7638/02            Aba, judgment of 03/03/2009, final on 03/06/2009

5138/04            Amutgan, judgment of 03/02/2009, final on 03/05/2009

38940/02+         Aslan and Demir, judgment of 17/02/2009, final on 17/05/2009

19582/02           Çimen, judgment of 03/02/2009, final on 03/05/2009

6058/02            Ek and Şıktaş, judgment of 17/02/2009, final on 17/05/2009

16500/04           Öztürk İbrahim, judgment of 17/02/2009, final on 17/05/2009

4661/02            Şükran and others, judgment of 03/02/2009, final on 03/05/2009

These cases concern the unfairness of criminal proceedings against the applicants, in that they did not benefit from the assistance of counsel while on remand. The applicants in the Salduz and Şükran cases were minors at the material time. Statements made by the applicants in the absence of legal assistance became the main evidence used to convict them before state security courts (violations of Article 6§3c combined with Article 6§1).

The applicants were arrested at various times between 1996 and 2001, basically on suspicion of belonging to illegal organisations. Under Article 31 of Law No. 3842 then in force, the applicants’ right to legal assistance during remand was subject to restriction as the offences in question fell within the jurisdiction of the state security courts. Between 2000 and 2003 the applicants were convicted by state security courts and sentenced to imprisonment.

The European Court considered however that the criminal proceedings at issue in these cases had not satisfied the requirement of fairness because statements made to the police in the absence of counsel constituted the essential basis for the security court’s sentence, even though they were contested by the applicants and their co-accused.

The Salduz and Çimen cases also concern the failure to disclose the written conclusions of Prosecutor General before the Court of Cassation (violations of Article 6§1).

Individual measures: The European Court has indicated that, where an individual has been convicted by a court not satisfying the conditions of independence and impartiality required by the Convention, a new trial or reopening of the proceedings at the behest of the person concerned represents in principle an appropriate means of redress for the violation found.

However, apart from the Amutgan and Öztürk cases and the applicant Şıktaş in the Ek and Şıktaş case, the Turkish Code of Criminal Procedure (CCP) does not authorise the reopening of criminal proceedings in most of these cases, since this is only possible in respect of applications judged by the European Court by decisions which became final before 04/02/2003 or applications brought before the Court after 04/02/2003.

• Information provided by the Turkish authorities (letter of 21/07/2009): In the Salduz case, following the amendment of Article 169 of the former Criminal Code (applied in the present case) by Article 2 of Law No. 4963, the Izmir State Security Court re-examined the case at the request of the applicant’s counsel. By a judgment of 01/10/2003, it cancelled the applicant’s conviction together with all of its legal consequences.

• Information is awaited as to the possibility of reopening the criminal proceedings in the other cases, in particular those to which the restriction imposed by the Code of Criminal Procedure is applicable.

General measures:

            1) Unfairness of the proceedings due to the absence of legal assistance during remand (Article 6§3c combined with Article 6§1): Measures have been taken in the context of the cases concerning the action of security forces in Turkey (see Interim Resolution CM/Res/DH(2009)69). Under the present legislation a suspect or an accused has the right to consult counsel in private before being interrogated and to have counsel present during interrogation (articles 147 and 154 CCP). The new Code also provides that statements obtained by security forces in the absence of counsel may not be taken into consideration as the basis of a conviction unless the suspect or accused confirms the statement before the judge or the court (Article 148 CCP).

In addition, certain measures were taken in the context of Law No. 5395 of 03/07/2005 on the protection and detention conditions of minors (see Selçuk (21768/02) (Section 6.2).

            2) Failure to disclose the opinion of the Prosecutor General: Measures have already been taken in the context of the Göç case (36590/97 (Section 6.2).

• Assessment: Information on general measures submitted by the authorities is being assessed. 

                        - 88 cases of length of detention on remand and of length of criminal proceedings

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

These cases primarily concern the excessive length of the applicants' detention on remand and the absence of sufficient reasons given by domestic courts in their decisions to extend such detention (violations of Article 5§3). The European Court found that the domestic courts’ decisions, in only using identical, stereotyped wording, such as “having regard to the nature of the offence, the state of the evidence and the content of the file” did not provide sufficient information as to the reasons justifying the applicants' being kept in detention. In a number of these judgments, the Court also found that the domestic courts had failed to give consideration to the application of preventive measures foreseen by Turkish Code of Criminal Procedure (hereinafter “CCP”) other than detention on remand, such as prohibition on leaving the country or release on bail (see for example, Duyum, §38).

A number of these cases also concern the absence of a domestic remedy whereby the applicants could challenge the lawfulness of their detention on remand (violations of Article 5§4). In particular, the Court observed that Turkish law did not provide a domestic remedy which was genuinely adversarial or which could offer reasonable prospects of success when challenging the lawfulness of detention on remand.

Lastly, a number of these cases concern the absence of a right to compensation for the applicants’ unlawful detention on remand (violations of Article 5§5).

The Court’s recent judgment in the case of Cahit Demirel (Application No. 18623/03, Section 2, 1078th meeting (March 2010)). In this judgment the European Court referred to the number of cases before by the Committee in the context of the Demirel group of cases and noted that there were still more than 140 similar applications pending before it. Having regard to the number of pending cases and in the light of its findings in its previous judgments, the Court considered that the violations of Article 5§§3 and 4 of the Convention in these cases “originated in widespread and systemic problems arising out of the malfunctioning of the Turkish criminal justice system and the state of the Turkish legislation, respectively” (§46). The Court, having regard to the systemic situation, underlined that “general measures at national level must be taken in order to ensure the effective protection of the right to liberty and security in accordance with the guarantees laid down in Article 5§§3 and 4 of the Convention” (§48).

Other violations found by the Court: The European Court found the following other violations in a number of these cases: excessive length of judicial proceedings, in particular before state security courts (violations of Article 6§1); failure to communicate the prosecutor's opinion to the applicants (violations of Article 6§1); lack of independence and impartiality of the state security courts (violations of Article 6§1); ill-treatment and lack of an effective remedy (violations of Articles 3 and 13) and the continued detention of the applicant following a release order (violation of Article 5§1) (see appendix for details).

Individual measures: It is observed that in a number of cases the applicants are still detained on remand and the proceedings against them are still pending before domestic courts despite the judgments of the European Court (in 12 cases the applicants are still detained on remand and in 47 cases the proceedings against them are still pending – see appendix for these cases).

• Information is urgently awaited as to whether or not the applicants in these cases are still detained on remand or whether the proceedings against them have been concluded.

General measures:

            1) Violations of Article 5§§3, 4 and 5 on account of excessive length of detention on remand:

• Information provided by the Turkish authorities (20/01/2004, 08/11/2006, 11/12/2006, 19/06/2007, and 21/08/2007).

            a) Legislative amendments: The Code of Criminal Procedure (Law No. 5271) (CCP), which came into force on 01/06/2005, provides the following safeguards to prevent future violations of the same kind:

(i) Reasons for detention on remand: Decisions to detain on remand or to extend such detention, as well as those denying requests for release, must be duly reasoned on both legal and factual grounds. The contents of such decisions must be communicated orally to the accused or suspects. A written copy of the decision must also be forwarded to the accused or suspect (Articles 100 and 101 of CCP).

(ii) Continued detention on remand: A judge or a court shall decide whether or not the conditions for the detention on remand still exist at every hearing or between two consecutive hearings, if necessary, or in any event every 30 days (Article 108 of CCP).

(iii) Maximum length of detention on remand: A maximum length of detention on remand is set (two years in the case of crimes within the jurisdiction of the assize courts, which may be extended for an additional period of three years; one year in the case of crimes that are not within the jurisdiction of the assize courts, with the possibility of extension for six months) (Article 102 of CCP). However, this provision will enter into force with respect to crimes falling under the jurisdiction of assize courts on 31/12/2010 (Article 12 of the Law on the Application of CCP (Law no. 5230)). For this exception, the relevant provisions of the former CCP (Law no. 1412) will continue to apply until the above deadline. Furthermore, Article 252§2 of CPP provides that the maximum time limits set above shall be doubled in judicial proceedings concerning certain crimes.

(iv) Right to compensation: Anyone who claims that he or she has been unlawfully detained on remand or whose detention on remand has been unlawfully extended may claim damages for pecuniary and non-pecuniary damages incurred (Articles 141 to 144 of CCP).

            b) Examples of domestic court decisions: The Turkish authorities provided 55 examples of decisions, 24 given by assize courts and 31 by other criminal courts since the introduction of the legislative amendments. In most of these decisions, including those related to terrorism, the courts released the detained accused on a number of grounds such as the fact that most of the evidence had already been gathered; that the accused had already been on remand for a certain period of time; that the evidence in the record might indicate a crime less severe than the charges; that mitigating factors might apply in the event of conviction, or deteriorating health of the accused. In some cases, the accused were also released on bail.

In one case dealing with organised crime, the court denied requests for release on the ground that the alleged crimes were of a serious and organised nature, that the evidence was not fully gathered, hence potential evidence suppression attempts and the likelihood of absconding. In another case involving a terrorist organisation, an assize court ordered the defendants' continued detention on the ground of the nature of the charges being organised crime, the risk of absconding, the evidence yet to be gathered, and the fact that the defendants had been in detention for a relatively short period of time.

• Assessment:

(a) Regarding the legislative amendments: The amendments introduced with the entry into force of CCP appear to indicate a positive development in aligning Turkish legislation with the Convention’s requirements. It should be noted in this regard that it is extremely important that domestic courts, when applying Articles 100 to 102 of CCP in practice, give relevant and sufficient reasons to justify continued detention and take into consideration the particular circumstances of each case. Domestic courts are expected to refrain from giving stereotyped decisions and take into account the case-law of the European Court in light of Article 90 of the Turkish Constitution, which allows the direct application of the Convention in Turkish law.

As regards the maximum time-limit set for detention on remand, it should be noted that a rough survey of recent case-law of the European Court may give an impression that the length of detention on remand exceeding two years is likely to violate Article 5§3 of the Convention. However, it has to be underlined that, even the shortest period of detention on remand could be considered as a violation of Article 5§3 if it cannot be convincingly demonstrated that it is justified.

Moreover, there are examples of judgments in which very long periods of detention on remand, approximately five years, were not automatically considered as a violation if there were relevant and sufficient reasons (see, for example, W. against Switzerland and Chraidi against Germany).  It should therefore be emphasised that the setting of time-limits for the period of detention on remand will not in itself prevent similar violations. In any event, the application of the general time-limits, together with the exceptions provided in CCP, might result in extremely long periods of detention on remand (for certain crimes this period might even reach seven years).  

(b) Regarding the examples of court decisions provided: At the outset, it should be recalled that neither the state of evidence nor the gravity of the charges can by themselves justify the length of preventive detention exceeding a certain period. The domestic judge, when deciding to extend detention on remand, should indicate the presence of “relevant and sufficient reasons”, i.e. to what extent the applicant's release would have posed a risk after the passage of time, in particular in the later stages of proceedings (see, for example, and Mehmet Yavuz , §§ 39 and 40).

Bearing in mind the Court’s considerations, the decisions provided by the Turkish authorities do not lead to a conclusive assessment as to whether or not the Convention’s standards have been reflected in the domestic courts’ practice. First, it is not clear at what stage of the proceedings these decisions were given and what the total length of detention was in these cases. Secondly, preventive measures, such as release on bail, were applied only in few cases and there are no examples of other preventative measures, such as prohibition on leaving the country, that had been considered by domestic courts.

(c) Regarding the absence of an effective remedy and the right to compensation: The Secretariat notes that the Turkish authorities provided no information on the existence of an effective remedy whereby an applicant might challenge the lawfulness of detention on remand in adversarial proceedings.

As to the right to compensation, it appears that CCP provides such a right but that it is not clear as to whether the grant of compensation requires a finding by domestic courts of a violation of one of the rights enshrined in Article 5 of the Convention. It should be noted in this respect that “the right to compensation set forth in paragraph 5 […] presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court” (see, Elğay, § 30). It is therefore not clear as to whether the provisions of CCP are applied by domestic courts in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 of Article 5. 

Conclusion: It appears that, to be able to make a more conclusive assessment, further information is necessary on the application by domestic courts of the relevant provisions of CCP in their decisions extending detention on remand. It is expected that the domestic courts will take into consideration the case-law of the European Court in such decisions. In particular, it would be useful if the Turkish authorities could provide examples of decisions of the Court of Cassation allowing the direct application of the case-law of the European Court. Information is also awaited regarding the existence of an effective remedy providing adversarial proceedings to challenge lawfulness of detention on remand, as well as the application by domestic courts of the relevant provisions of CCP granting compensation for unlawful detention.

Lastly, it should be emphasised that information to judges and prosecutors on the requirements of the Convention and the European Court’s judgments is essential for the improvement of judicial practice. In this context, it would be very useful if the Turkish authorities would consider issuing a circular to all judges and public prosecutors drawing their attention to the requirements arising from the case-law of the European Court.  

2) Violations of Article 6§1:

- Excessive length of criminal proceedings: The Committee is examining the measures taken in the Ormancı group (43647/98, Section 5.1). For this group, the Committee is expecting information on the adoption of draft laws which are intended to prevent lengthy proceedings as well as on the introduction of effective domestic remedies in this respect.

It should further be noted that state security courts were abolished by the constitutional amendments of May 2004.

- Independence and impartiality of state security courts: See, Çıraklar against Turkey (judgment of 28/10/1998) which was closed by final resolution DH(99)555 following the adoption of general measures by the Turkish authorities. 

- Non-communication of the Public Prosecutor's written observation: A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. This provision was subsequently included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which entered into force on 01/06/2005.

            3) Violations of Articles 3 and 13 (Ill-treatment and lack of an effective remedy): Measures are being examined in the context of the actions of security forces group against Turkey (see Aksoy group, 21987/93, 1078th meeting, March 2010).

            4) Dissemination of the judgments of the European Court: The Demirel judgment has been translated into Turkish and circulated to the relevant authorities, including the Ministry of Justice and the Ministry of the Interior.

The Deputies, 1.             noted that the European Court in the case of Cahit Demirel v. Turkey (application no: 18623/03) considered that the violations found in these cases “originated in widespread and systemic problems arising out of the malfunctioning of the Turkish criminal justice system and the state of the Turkish legislation, respectively”, and underlined that “general measures at national level must be taken in order to ensure the effective protection of the right to liberty and security in accordance with the guarantees laid down in Article 5 §§ 3 and 4 of the Convention”; 2.             highlighted that it is extremely important that the domestic courts, when applying the domestic legislation, give relevant and sufficient reasons to justify continued detention and invited the Turkish authorities to provide information on domestic courts’ practice in this respect and in particular examples of decisions of the Court of Cassation; 3.             invited the Turkish authorities to consider issuing a circular to all judges and public prosecutors drawing their attention to the Convention requirements; 4.             further invited the Turkish authorities to provide information regarding the existence of an effective remedy providing adversarial proceedings to challenge the lawfulness of detention on remand, as well as on the application by domestic courts the relevant legislation providing compensation for unlawful detention; 5.             noted with concern that in certain cases in this group the applicants are still being detained on remand and/or the proceedings against them are still pending and invited the Turkish authorities to clarify the applicants’ situation in these cases and to take the necessary measures to bring to an end the applicants’ continued detention as well as the proceedings against them; 6.             decided to resume consideration of these cases at the latest at their 1086th meeting (June 2010) (DH) in light of further information to be provided on general and individual measures.

- 461 cases against Ukraine

- 4 cases mainly concerning the failure to conduct an effective investigation into the death of the applicants[107]

32478/02          Shevchenko, judgment of 04/04/2006, final on 04/07/2006

29971/04           Kats and others, judgment of 18/12/2008, final on 18/03/2009, rectified on 06/05/2009

39964/02           Khaylo, judgment of 13/11/2008, final on 13/02/2009

249/03              Muravskaya, judgment of 13/11/2008, final on 13/02/2009

72286/01           Melnik, judgment of 28/03/2006, final on 28/06/2006[108]

40269/02           Koretskyy and others, judgment of 03/04/2008, final on 03/07/2008[109]

- 6 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[110]

38722/02           Afanasyev, judgment of 05/04/2005, final on 05/07/2005

17323/04          Ismailov, judgment of 27/11/2008, final on 27/02/2009

16437/04           Kobets, judgment of 14/02/2008, final on 14/05/2008

75520/01           Kozinets, judgment of 06/12/2007, final on 06/03/2008, rectified on 27/02/2008

39188/04           Suptel, judgment of 19/02/2009, final on 19/05/2009

32092/02           Yaremenko, judgment of 12/06/2008, final on 12/09/2008

                       - 8 cases concerning the poor detention conditions of the applicants[111]

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

18660/03           Malenko, judgment of 19/02/2009, final on 19/05/2009

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

- 13 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[112]

54825/00           Nevmerzhitsky, judgment of 05/04/2005, final on 12/10/2005

16505/02           Doronin, judgment of 19/02/2009, final on 19/05/2009

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

16447/04           Kucherenko Nikolay, judgment of 19/02/2009, final on 19/05/2009

2570/04            Kucheruk, judgment of 06/09/2007, final on 06/12/2007

75522/01           Mikhaniv, judgment of 06/11/2008, final on 6/04/2009

34211/04           Miroshnichenko Roman, judgment of 19/02/2009, final on 19/05/2009

40774/02+         Solovey and Zozulya, judgment of 27/11/2008, final on 27/02/2009

35231/02           Svershov, judgment of 27/11/2008, final on 27/02/2009

39458/02           Tkachev, judgment of 13/12/2007, final on 13/03/2008

30628/02           Ukhan, judgment of 18/12/2008, final on 18/03/2009

17283/02           Yeloyev, judgment of 06/11/2008, final on 06/02/2009

23543/02          Volokhy, judgment of 02/11/2006, final on 02/02/2007

The case concerns a violation of the applicants' right to respect for their private life following an order for interception and seizure of their postal and telegraphic correspondence issued in 1997. This order was issued in the framework of a criminal investigation into tax evasion opened against a relative of the applicant. The criminal case was ended on 04/05/1998, but the interception order was only cancelled in May 1999, i.e. a year afterwards. The applicants were not informed of the application of the surveillance measures after they were discontinued, but found out about it by chance and were thus not able to question the lawfulness of the decision on interception. The applicants’ claim for compensation for unlawful interference in their rights was rejected by the domestic courts as unsubstantiated.

The European Court found that Ukrainian law did not indicate with sufficient clarity the scope and conditions of exercise of the authorities' discretionary power in the area under consideration and did not provide sufficient safeguards against abuse of that surveillance system (violation of Article 8).

The also case concerns the lack of effective domestic remedies in relation to their complaints under Article 8, as the relevant Ukrainian law and it its interpretation by the domestic courts did not offer sufficient safeguards to persons under surveillance to allow them to challenge the lawfulness of the interference with their rights and seek redress (e.g. the absence of any obligation to inform the subject that he/she was under surveillance) (violation of Article 13).

Individual measures: The interception order was cancelled on 28/05/1999. The European Court awarded just satisfaction in respect of non-pecuniary damage suffered by both applicants.

Following the European Court’s judgment, the second applicant (the first applicant had died) applied to the Supreme Court for review of the domestic courts’ decisions on compensation for the unlawful interference with his rights. On 25/05/2007 the court partly allowed the applicant’s claim, quashed the decisions at issue and remitted the case for fresh consideration to the court of first instance. On 30/01/2008 the Leninsky District Court of Poltava partly allowed the applicant’s claim and awarded the applicant UAH 3000 to be paid from the State Budget as non-pecuniary damage caused by unlawful interception of his correspondence. This decision has become final. According to the applicant (letter of 9/08/2009), this decision still remains unenforced because of the lack of relevant appropriations in the state budget.

• Information is awaited on measures taken or planned to ensure full redress to the applicant for the violation found, in particular on the enforcement of the decision of the Leninsky District Court of Poltava of 30/01/2008.

General measures:

1) Violation of Article 8: Article 187 of the Code of Criminal Procedure concerning the interception of correspondence was substantially amended in June 2001, i.e. after the events in this case. The new wording determines the grounds, terms and the procedure for ordering interception of correspondence, clarifying the scope and conditions of exercise of the authorities’ power in this respect.

• Information is awaited as to whether and in what form and in which circumstances the authorities are obliged to inform the person concerned about the surveillance measures applied to him/her.

2) Violation of Article 13: The authorities informed the Committee on 31/10/2007, that the Ukrainian Law “on the procedure compensating damage caused to the citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” was amended in December 2005, i.e. after events in this case. Under the new wording, persons other than the accused may initiate proceeding before a court in case of unlawful procedural actions restricting or infringing their rights and freedoms in the context of criminal proceedings against a third person.

• This information is being assessed.

3) Publication and dissemination.  The European Court's judgment was translated into Ukrainian and placed on the Ministry of Justice's official web-site. It was published in the Official Herald of Ukraine, No. 23 of 10/04/2007. A summary of the Court's judgment in Ukrainian was also published in the Government's Currier, No. 48 of 17/03/2007.

On 28/04/2007 the judgment of the European Court was sent to all authorities concerned, i.e. the Supreme Court of Ukraine, Ministry of Internal Affairs, General Prosecutor's Office, State Security Service and the State Tax Administration with a view to take account of the findings of the European Court in its daily practice. The Supreme Court of Ukraine transmitted these letters to the Heads of Courts of Appeal. According to the General Prosecutor’s Office, it has ordered the Ministry of Internal Affairs to disseminate the judgment among investigators to prevent further similar violations. According to information of the State Tax Administration, local investigation departments of the State Tax Administration have been ordered to hold a training on the Court's conclusions in the above judgment and on the Convention as a whole.

39948/06           Saviny, judgment of 18/12/2008, final on 18/03/2009

The case concerns the violation of the right to respect for the family life of the applicants (husband and wife) because of removal of their three children from their care without sufficient reasons and because of placement of the children to different institutions that made it difficult to maintain regular contacts with them and between them (violation of Article 8).

The applicants have both been blind since childhood. They gave birth to seven children. Four of them were taken into public care in 1998; subsequently one of them was adopted with the parents’ consent. The applicants did not challenge this fact before the European Court. In January 2004, at the request of the Juvenile Service, the prosecutor initiated court proceedings to place the remaining three children in public care. In 2006 the courts allowed the prosecutor’s claim, having found that the applicants, due to insufficient financial means and personal qualities, were unable to provide their children with proper nutrition, clothing, sanitary environment and health care, as well as to ensure their social and educational adaptation, thereby endangering the children’s life, health and moral upbringing. At that time the three children were 15, 8 and 5 years old.

The European Court found that these reasons were undoubtedly relevant to the taking of the requisite decision. The Court however doubted the adequacy of the requisite evidentiary basis for the domestic courts’ findings.

First, the custody proceedings instituted in January 2004 had not resulted in the children's removal from home until June 2006. No interim measure had been sought and no actual harm to the children during this period had been recorded.

Secondly, the domestic courts appeared to have taken on trust the submissions by the municipal authorities, drawn from their occasional inspections of the applicants' dwelling. No other corroborating evidence, such as the children's own views, their medical files, opinions of their paediatricians or statements by neighbours, had been examined. Nor did the courts appear to have analysed in any depth the extent to which the purported inadequacies of the children's upbringing were attributable to the applicants' irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling.

Thirdly, the European Court noted that it was not its role to determine whether the promotion of family unity in the case entitled the applicants' family to a particular standard of living at public expense. It was, however, a matter which fell to be discussed, initially by the relevant public authorities and, subsequently in the course of the judicial proceedings. As regards the applicants' purported parental irresponsibility, the European Court emphasised that no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants' emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants' attempts to improve their situation, such as requests to equip their flat with access to natural gas and hot water, recoup salary arrears or request employment assistance. No data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. Soliciting specific information in this regard would have been pertinent in evaluating whether the authorities had discharged their obligation under the Convention to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents. Furthermore, at no stage of the proceedings had the children been heard by the judges.

Finally, the Court found that not only had the children been separated from their family of origin, they had also been placed in different institutions, which rendered it difficult to maintain regular contacts.

Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants. One of the three children has reached 18.

On 24/04/2009, following the judgment of the European Court, the applicants applied to the Supreme Court requesting reopening of the proceedings in their case, quashing of the impugned decisions of the domestic courts and dismissal of the prosecutor’s claim of January 2004.   

• Information is still urgently awaited on the proceedings before the Supreme Court and on measures taken to ensure that the time required for re-assessment of the situation will not prejudice the possibility of reunification;

General measures: The European Court’s judgment has been translated into Ukrainian. A summary in Ukrainian was published in the Government’s Currier (Uriadovyi Kurier), No. 71 of 18/04/2009. It will also be published in the official government print outlet – Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy). The translation of the judgment will be placed on the internet site of the Ministry of Justice.

The attention of the Supreme Court of Ukraine and Ministry for Family, Youth and Sport of Ukraine was drawn to the Court's conclusions in the judgment.

• Assessment: it appears from the European Court’s judgment that the violation in the present case was due to deficiencies in the quality of the decision–making process leading to splitting up the family. A relevant measure in this context would be the wide dissemination of the judgment by a circular explanatory note to the relevant authorities, including the Municipal Juvenile Service, the Tutelage Board and domestic courts. The relevant guidelines from the Supreme Court to lower courts would be also useful in this respect. These measures also appear relevant for the issue relating to the subsequent placement of the children.

• Information therefore is awaited on the wide dissemination of the judgment and on any other measures taken or planned by the authorities.

The Deputies, 1.             recalled that the violation of Article 8 found by the Court in this case was due to the fact that the reasons advanced by the domestic judicial authorities for the removal of three of their children from the applicants’ care were not sufficient to justify such a serious interference, 2.             recalled further that, as a result of the removal order, the children were not only separated from their family of origin, but were also placed in different institutions which rendered it difficult to maintain regular contacts between the family members; 3.             welcomed in this respect the information provided by the Ukrainian authorities to the effect that the applicants’ children were eventually placed in the same institution near their parents’ place of residence and that they have regular contacts with the parents; 4.             noted with satisfaction the information provided by the Ukrainian authorities to the effect that on 11 November 2009, following the European Court’s judgment, the Supreme Court of Ukraine quashed the judicial decisions at issue and remitted the case for fresh consideration to the first‑instance court; 5.             stressed the importance of taking into account the shortcomings, identified by the Court in its judgement, during the reconsideration of the case; 6.             noted with satisfaction that the Ukrainian authorities undertook to keep the Committee regularly informed about the progress in the proceedings before the domestic courts; 7.             also invited the Ukrainian authorities to provide further information with respect to general measures; 8.             decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH) in the light of information to be provided on individual and general measures.

7577/02            Bochan, judgment of 03/05/2007, final on 03/08/2007[113]

22750/02           Benderskiy, judgment of 15/11/2007, final on 15/02/2008

The case concerns a violation of the applicant’s right to a fair trial due to the domestic courts’ failure to address a substantial argument advanced by him, which might have been decisive for the outcome of compensation proceedings he brought against the “Inter-regional Centre for Clinical Lymphatic Surgery” in September 1998 (violation of Article 6§1).

The applicant, who was suffering from cancer of the bladder, was operated on at the “Inter-regional Centre for Clinical Lymphatic Surgery” and alleged that a gauze compress had been left in his bladder during the operation. A medical report requested by the domestic court established that the compress had most probably penetrated the applicant’s bladder during the operation, or this might have happened during post-operative treatment at home. The applicant thus requested the courts to rule on this issue. However, the courts neither granted that request nor commented in any way on the doctors’ statements.

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

According to Ukrainian law in force, the applicant is entitled to request reopening of the proceedings at issue following the judgment of the European Court. The authorities have informed the applicant in writing of this right.

• Assessment: No further individual measure seems necessary.

General measures:

            1) Legislative measures: The Code of Civil Procedure of 1963 (in force at the material time) provided comprehensive, full and objective examination of all circumstances of the case within the scope of a claim brought before a court (Article 62). It also provides that courts’ judgments should be lawful and well-founded. Courts should ground their judgments only on evidence which had been examined during the proceedings (Article 202).

The new Code of Civil Procedure of Ukraine in force since 1/09/2005 contains further improvements in this respect. In particular, Article 212 of the Code (“Assessment of evidence”) the Code provides in addition that courts shall examine the relevance, admissibility, trustworthiness of each item of evidence separately, and the sufficiency and correlation of evidence as a whole. The results of the court’s assessment of evidence shall be reflected in the judgment, which shall contain reasons for their acceptance or rejection. Article 213 of the Code further provides that a well-founded judgment is one delivered as a result of fully and comprehensively established circumstances – to which the parties refer when grounding their claims and objections – which are proved by evidence examined during the proceedings.

Failure by courts to comply with these obligations gives rise to an appeal including an appeal on points of law.

• Information would also be useful on possible training measures to ensure that all judges strictly comply with their obligations resulting from the legislation in force and the Convention as well as on further additional measures such as the judges’ disciplinary responsibility.

            2) Publication and dissemination:  The European Court’s judgment has been translated into Ukrainian and placed on the Ministry of Justice official website (www.minjust.gov.ua). The translation of the judgment was published in the official government publication, the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No.18/2008. A summary of the judgment was also published in the Government's Currier (Uriadovyi Kurier).

According to the government (letter of 11/04/2008) the Supreme Court’s attention has been drawn to the European Court’s conclusions in this case.

• Information is therefore awaited on wide dissemination of this judgment to domestic courts at all levels, possibly accompanied by an explanatory note.

- 2 cases concerning the violation of the right to a fair hearing before a “tribunal established by law”

29458/04+         Sokurenko and Strygun, judgment of 20/07/2006, final on 11/12/2006

39157/02           Veritas, judgment of 13/11/2008, final on 13/02/2009

Both cases concern the violation of the applicants' right to a fair hearing before a tribunal established by law, in that, in 2004 (Sokurenko and Strygun) and 2002 (Veritas), in commercial proceedings, the Supreme Court, acting as a “second-instance cassation court”, having quashed a judgment by the Higher Commercial Court, upheld a decision delivered by the court of appeal even though this course of action was not provided in the Code of Commercial Procedure or other regulations.

The European Court found that having overstepped the limits of its jurisdiction, which were clearly laid down in the Code of Commercial Procedure, the Supreme Court could not be considered a "tribunal established by law" (violations of Article 6§1).

Individual measures:

            1) Sokurenko and Strygun case: The European Court awarded both applicants just satisfaction in respect of non-pecuniary damage sustained.

Following the Court’s judgment, on 28/12/2006, the authorities informed the applicants of the possibility provided by Article 10 of the Law of Ukraine on enforcement of judgments and application of the case-law of the European Court of Human Rights to initiate re-opening of the proceedings at issue. According to the Ukrainian authorities, the applicants have not lodged such an application.

            2) Veritas case: The applicant company submitted no claim for just satisfaction. Accordingly, the Court made no award.

• Information is awaited on measures taken or planned to erase the consequences of the violation for the applicant.

General measures: It follows from the judgments of the European Court that quashing of Higher Commercial Court decisions and upholding first- and second-instance courts’ judgments, even though not explicitly provided by the Code of Commercial Procedure, constituted a general practice of the Supreme Court, when acting as second cassation court in commercial cases.

            1) Legislative reform: On 20/02/2007, Parliament adopted at first reading the Draft Law On amendments to the Code of Commercial Procedure (registration No. 2566 of 16/11/2006). The draft law provides abolition of the so-called “double cassation” procedure, establishing the Higher Commercial Court as the only cassation court. According to the draft law, the Supreme Court is entrusted only with the extraordinary review (“review under exceptional circumstances”) of decisions of the Higher Commercial Court.

• Information is expected on the adoption of the draft law. Information is also awaited on interim measures taken to ensure compliance with the European Court’s judgment pending adoption of legislative reform.

            2) Publication and dissemination: The judgment of the European Court in the Sokurenko and Strygun case has been translated into Ukrainian and placed on the Ministry of Justice's official website (www.minjust.gov.ua). It was published in the Official Herald of Ukraine, No. 1 of 19/01/2007. A summary was published in the Government's Currier No. 6 of 13/01/2007. By letter dated 28/12/2006, the authorities drew the attention of the Supreme Court of Ukraine to the Court’s conclusions in this case. The Government Agent has also drawn attention to this judgment in the course of a number of seminars and training sessions for judges.

• Information is awaited on publication and dissemination of the European Court judgment in the Veritas case.

37878/02           Tserkva Sela Sosulivka, judgment of 28/02/2008, final on 28/05/2008[114]

34786/03           Balatskyy, judgment of 25/10/2007, final on 25/01/2008

The case concerns a violation of the applicant’s right of access to a court due to the domestic courts’ failure to take a formal, final decision in the proceedings concerning the applicant’s unlawful transfer brought against his employer.

The first-instance court had initially dismissed his appeal on the ground that he had brought an identical action for reinstatement. Despite a finding at appeal that this dismissal was groundless and referring the case back to the first instance, no judgment was rendered. In June 2006 the applicant received an unofficial letter informing him that any further examination of his request would be pointless because it was identical to his application for reinstatement, rejected in 2002.

The European Court accordingly found that the applicant had been deprived of his right of access to a court, since the authorities had advanced no plausible explanation for the domestic courts’ failure to take a formal, final decision in relation to the applicant’s suit (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. It appears from the judgment of the European Court that no formal decision has been taken to date in the applicant’s case.

• Information is awaited on measures taken to erase the consequences of the violation for the applicant.

General measures: The Code of Civil Procedure of Ukraine provides two types of decisions which are to be taken by courts in proceedings: rulings and judgements (Art. 208). Courts deliver rulings when deciding, inter alia, to suspend or to close cases, not to consider a claim, and on other issues dealing with course of proceedings before it. A trial must be concluded by delivery of a judgment.

In the present case the district court, by not rendering a judgment, failed to comply with the national law in force.

• Information provided by the Ukrainian authorities (11/04/2008):The judgment has been translated into Ukrainian and placed on the Ministry of Justice official website (www.minjust.gov.ua). The translation of the judgment was published in the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No.11/2008. A summary of the judgment was also published in the Government's Currier (Uriadovyi Kurier).

The Supreme Court’s attention has been drawn to the European Court's conclusions in this case.

• Information is expected on possible training measures to ensure that all judges strictly comply with their obligations resulting from the legislation in force and the Convention, as well as on further additional measures such as the judges’ disciplinary responsibility. Information is also awaited on measures taken or envisaged to prevent new, similar violations, in particular via the wide dissemination of this judgment to domestic courts at all levels, possibly accompanied by an explanatory note.

6725/03            Lizanets, judgment of 31/05/2007, final on 31/08/2007

The case concerns the quashing in 2002 of a final judgment awarding applicant material and moral damages for unlawful prosecution on the ground of new circumstances. The new circumstances in question were the annulment of a provision of the 2001 State Budget Law by the Constitutional Court. Even though this only concerned the source from which the money awarded to the applicant was to be paid, the court re-examined the initial judgment of 17/05/2001 on the merits, regardless of the original aim of the reopening of the proceedings, thus violating the principle of legal certainty (violation of Article 6§1).

The case also concerns the violation of the applicant's right to a fair trial in that the state treasury failed to execute the judgment initially delivered in the applicant's favour. 

Individual measures: The European Court awarded just satisfaction in respect of the pecuniary and non-pecuniary damage sustained by the applicant, including the compensation due under the judgment of 12/06/2002 which confirmed that of 17/05/2001.

• Assessment: no further individual measure seems required.

General measures:

1) Reopening of the proceedings on the ground of new circumstances: The European Court noted that domestic law provided no safeguards against possible infringement of the principle of legal certainty, giving the relevant court unfettered power to reconsider a case on the merits regardless of the original aim of the reopening of the proceedings (§33 of the judgment).

• Information is still awaited on measures taken or envisaged to prevent similar violations, in particular related to a possible change of legislation concerning the reopening of proceedings on the ground of new circumstances. Pending the adoption of a possible legislative reform, given the direct effect of the Convention and of the European Court’s judgments in Ukraine, the domestic courts are expected to bring their practice in line with the findings of the European Court. The authorities’ confirmation in this respect would be particularly useful.

2) Failure to enforce final judgments: The problem of the non-enforcement of judgments is being examined in the context of the Zhovner group of cases (56848/00, Section 4.2).

3) Publication and dissemination of the judgment: The Ukrainian authorities indicated that on 14/09/2007 the judgment of the European Court was sent to the Supreme Court so that it might take account of the findings of the European Court in its daily practice.

The judgment was translated into Ukrainian and published in the official government bulletin, the Official Herald of Ukraine No. 71/2007. A summary of the judgment in Ukrainian was also published in the Government Currier No. 177 of 27/09/2007

17988/02           Zhoglo, judgment of 24/04/2008, final on 24/07/2008

The case concerns a violation of the right to a fair trial in that the applicant, the defendant in criminal proceedings, could not confront or question the victim at any stage of these proceedings (violation of Article 6§§1, 3).

On 15/08/2001; the applicant was arrested on suspicion of having caused grievous bodily injury. During the criminal proceedings, the applicant repeatedly asked to confront the victim, who presented a different account of the events. However he was not given such an opportunity either during the investigation or during the trial, because of the state of health of the victim. The domestic courts relied entirely on the version given by the victim during the pre-trial investigation without hearing evidence from him in person.

The European Court noted that the domestic courts had made no attempt to find an alternative solution to the victim’s appearance in person to establish his credibility and found that the applicant was denied an adequate and proper opportunity to contest the statements on which his conviction was based, leading to the denial of a fair trial.

Individual measures: The Court found that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

According to the Ukrainian legislation in force the applicant is entitled to request reopening of the impugned proceedings following the judgement of the European Court. By letter of 12/08/2008 the authorities informed the applicant of this right.

• Assessment: No further individual measure seems to be necessary.

General measures: The judgment was translated into Ukrainain and out on the placed on the Ministry of Justice's official website (www.minjust.gov.ua). The translation of the judgment was published in the official government publication, the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No. 86, November 2008. Summary of the judgment was also published in the Government’s Currier (Uriadovyi Kurier), No.157 of 27/08/2008.

The European Court's judgment has been sent out by the authorities to the Supreme Court and the Academy of Judges together with letters from their hierarchy inviting them to take account of the findings of the European Court in their daily practice.

• Information is awaited on measures taken or planned to ensure that suspects and accused may confront and question a victim or witnesses if direct questioning in the courtroom is not possible. Information is also awaited on publication and dissemination of the judgment.

7460/03            Nadtochiy, judgment of 15/05/2008, final on 15/08/2008

The case concerns a violation of the applicant’s right to a fair trial due to the failure to notify the applicant, a detainee, of criminal proceedings brought against him and the consequent breach of the adversarial principle (violation of Article 6§1).

Although the authorities were aware that the applicant was serving his sentence, they made no attempt to ensure his presence at the proceedings against him, which resulted in his conviction. The applicant was only informed about the verdict after the proceedings had ended. The European Court found that these proceedings, in the absence of important procedural guarantees, were deprived of any fairness (violation of Article 6§1).

Individual measures: The Court found that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It also recalled its case-law to the effect that where an applicant has been convicted in proceedings judged to be unfair, as in this case, reopening or retrial at the instance of the person concerned constitutes in principle an appropriate means of redressing the violation found.

According to the applicable law, the applicant may request reopening of the proceedings at issue following the judgement of the European Court. By letter of 3/09/2008 the authorities informed the applicant of this right.

• Assessment: No further individual measure seems to be necessary.

General measures: The judgment has been translated into Ukrainian and placed on the Ministry of Justice's official website (www.minjust.gov.ua). The translation of the judgment was published in the official government publication, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy], No. 85, 2008. A summary of the judgment was also published in the Government's Currier [Uriadovyi Kurier], No.165 of 6/09/2008.

The European Court's judgment has been sent out by the authorities to the Supreme Court and the Academy of Judges together with letters from their hierarchy inviting them to take account of the findings of the European Court in their daily practice.

• Information is still awaited on the current rules governing the notification of persons serving a sentence of the initiation of new proceedings against them and on how their participation in these proceedings is ensured.

- 324 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

                        CM/Inf/DH(2007)30-rev (English only) and CM/Inf/DH(2007)33

                        Interim Resolution CM/ResDH(2008)1

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

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.

Most of these unenforced decisions concern monetary awards to the applicants to be paid by state authorities and bodies such as the armed forces, police, state security service, courts, enforcement authorities, the Ministry of Finance, the Tax Police or the government as well as municipal enterprises and authorities. A few concerned provision of certain goods to applicants, such as coal.

Individual measures: Urgent measures are necessary to ensure enforcement of the domestic judgments in the cases where this has not yet been done (see Appendix).

• Information is required in writing on the outstanding individual measures.

General measures:

            1) Violations of Article 6§1 and Article 1 of Protocol No. 1

The main reasons for the failure to enforce the domestic court decisions were:

a) Lack of budgetary funds and/or of appropriate procedures to implement the state’s payment obligations:

• Information is awaited on measures taken or envisaged to ensure the coherence of legislation on state payment obligations.

b) Lack of clear procedures to enforce judicial decisions delivered against the state and its entities:

It would appear that the State Bailiffs’ Service is no longer competent to execute judgments concerning recovery of money from state or local budgets or entities financed from the state budget. According to the legislation in force, the execution of such judgments is ensured by the State Treasury in accordance with the procedure to be established by the government. However, it appears that no procedure has been set so far.

• Information is still awaited on measures taken or envisaged to set an appropriate procedure for execution of domestic courts’ decisions delivered against the state.

c) Inefficiency of bailiffs: It appears that bailiffs, when enforcing decisions against the state, cannot effectively use the powers entrusted to them by law: the compulsory seizure and sale of property belonging to state authorities does not appear possible in practice in view of the special regime of state property. Furthermore, there is a general problem of low qualification of bailiffs, lack of resources allocated to them, lack of proper responsibility for failure duly to perform their duties and lack of independence.

• Up-to-date Information is still awaited on measures taken or envisaged to increase the efficiency of bailiffs, in particular legislative initiatives in this field.

d) Sector-specific problems:

- Moratorium on forced sale of assets of state companies: One of the main reasons for non-enforcement is the moratorium on forced sale of assets of companies in which the state holds more than a 25% stake. The moratorium was introduced in 2001. No time limit has been set.

• Information provided by the Ukrainian authorities:On 23/05/2007, a draft law abolishing the moratorium on the forced sale of property in companies in which the state’s holding exceeds 25% has been submitted to the government for consideration.

• Assessment: No information has been provided on the adoption of the draft law. It appears that the government finally decided not to abolish the moratorium. In particular, in a decree 191/2009 dated 26/03/2009 the President of Ukraine instructed the government to draw up a draft law extending the application of the moratorium on the forced sale of property to state companies in receivership.No alternative mechanism which would ensure enforcement of the domestic court decisions delivered against the state and its entities seems to have been considered.

• Information is awaited on measures taken or envisaged to ensure enforcement of domestic courts’ decisions delivered against state enterprises. Further information is necessary on the introduction of a compensation scheme for delays in enforcement proceedings in this specific situation.

- Moratorium on forced sale of assets of the companies within the fuel and energy sector: In this area, the problem of non-enforcement appears to be due to the impossibility of attaching the funds of fuel and energy companies registered in a special register established by the Ministry of Fuel and Energy.

• Information is awaited on measures taken or envisaged to ensure execution of domestic court’s decisions delivered against such companies. Further information is also required on the introduction of a compensation scheme for delays in enforcement proceedings in this specific situation.

-  Moratorium on satisfying creditors’ claims in bankruptcy proceedings: It appears that bailiffs are not allowed to recover funds and cash assets in enforcement proceedings against companies undergoing bankruptcy, rehabilitation or liquidation procedures.

• Information provided by the Ukrainian authorities on 21/05/2007: Work is under way on finalising draft amendments to the Bankruptcy Law to abolish the present moratorium on salary arrears under execution writs as well as certain other payments (e.g. damages).

 • Assessment: These proposed changes appear to be in line with the Convention’s requirements.

• Information is still awaited on progress in adopting the draft law. Further information is awaited on the introduction of a compensation scheme for delays in enforcement proceedings in this specific situation.

- Problems related to enterprises located in the Chernobyl area: The failure to enforce was due to the refusal to grant special authorisation to attach the property of the debtor enterprise (the “Atomspetsbud” company) and to the lack of any alternative execution mechanism.

• Information provided by the Ukrainian authorities on 30/05/2009: the amount of UAH 3 490 600 has been paid from the state budget to Atomspetsbud employees The draft law on the State Budget for 2010 provides funds for full reimbursement of the company’s debts to its employees, including to those who did not apply to the Court.   

• Information is awaited on the adoption of the draft law as well as on measures taken or envisaged to prevent new, similar violations.

- Inefficient organisation and management, and lack of control over the state management: This concerns enterprises in which the state is a main shareholder.

According to information provided by the Ukrainian authorities, criminal proceedings have been opened against the top management of a number of companies for wilfully delaying the payment of salaries or against officials involved in enforcement procedures. The Ministry of Industrial Policy is in the process of solving the indebtedness problem by finding an individual and effective way for every single enterprise named in the Court’s judgments. For this purpose, vigilant monitoring of salary arrears payments has been begun, followed by the adoption by the Ministry of a schedule of payment for salary arrears. For the time being, the Ministry considers that possible ways to fund part of indebtedness might be, inter alia, collection of receivables from the debtors and sale of superfluous property not required for purposes of industrial production.

• Information is still awaited on progress achieved as well as on other measures taken or envisaged to ensure efficient functioning of state enterprises.

            2) Violations of Article 13

• Information provided by the Ukrainian authorities:Following a decision 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 of violations of the right to trial within a reasonable time. It includes compensation for delays and sanctions against those responsible. Since 2007 the draft law has been submitted to Parliament, sent back to the drafters and re-submitted several times. No information has been provided as to the current situation with the adoption of the draft law. 

• Information is awaited in this respect, including a copy of the latest official version of the draft an information on the time-table envisaged for its adoption; the authorities’ own assessment of how this draft law would improve the existing situation and ensure retroactive compensation for past debts is expected. The authorities’ comments on whether the draft law provides the possibility to accelerate enforcement proceedings would be appreciated.

• Assessment: Pending the adoption of the draft law, it seems feasible to encourage the judicial authorities to award compensation for delays in enforcement of domestic judicial decisions on the basis of the Convention’s provisions pursuant to the new Law on Enforcement of Judgments and the Application of the Case-Law of the European Court. In particular, Article 17 of this law provides that, in judging such cases, courts shall apply the Convention and the case-law of the Court as a source of law. Guidance by the Supreme Court to lower courts would be useful in this respect.

            3) 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.

            4) Multilateral round table in Strasbourg: On 21 and 22/06/2007 a high-level round table was organised in Strasbourg by the Department for the Execution of Judgments 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.

            5) 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 draft law.

The Deputies, 1.             adopted Interim Resolution CM/ResDH(2009)159 as it appears in the Volume of Resolutions; 2.             decided to resume consideration of this group of cases at the 1078th meeting (March 2010) (DH), in the light of the information to be provided on individual and general measures.

47148/99           Novoseletskiy, judgment of 22/02/2005, final on 22/05/2005[115]

77703/01           Svyato-Mykhaylivska Parafiya, judgment of 14/06/2007, final on 14/09/2007[116]

11901/02           Panteleyenko, judgment of 29/06/2006, final on 12/02/2007

The case concerns first, a violation of the applicant's right to respect for his home due to a search conducted in his notary office in 1999 without prior presentation of the search warrant as required by the Ukrainian Code of Criminal Procedure, and the unselective seizure of documents and personal items (violation of Article 8).

The case concerns, secondly, the violation of the applicant's right to respect for his private life due to the disclosure by a court of information concerning his mental health in the course of defamation proceedings. The information concerned was read out loud by one of the judges at a public hearing, in breach of the domestic law which provides a specific regime for the protection of personal data. The European Court found moreover that the domestic court’s request for confidential psychiatric information concerning the applicant was without point, having no relevance to the court proceedings at issue and was thus unlawful (violations of Article 8).

Thirdly, the case concerns a violation of the applicant's right to the presumption of innocence in that a decision to terminate criminal proceedings against him taken by the court in 2001 was couched in terms which left no doubt as to its view that the applicant had committed the offence with which he had been charged, although he had not been proved guilty. The European Court considered that the language employed by the domestic court, as well as the reasons given (which were upheld at appeal), combined with the subsequent rejection of the applicant's compensation claim on the basis of these same reasons, constituted an infringement of the principle of the presumption of innocence (violation of Article 6§2).

Finally, the case concerns a violation of the applicant's right to an effective domestic remedy in respect of the violations of Article 8: he had no possibility of obtaining compensation in respect of the violation of his right to respect for his home, and even though he had been vindicated at appeal, the court did nothing to put an end to the disclosure of confidential psychiatric data in the file or to award any compensation (violation of Article 13).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the pecuniary damage caused by unlawful search of the applicant’s premises and non-pecuniary damage sustained. In addition, on 02/03/2007, the Ukrainian authorities reminded the applicant in writing of the possibility of applying for review of the impugned proceedings following the European Court’s judgment. According to the authorities, the applicant has lodged no application for such review.

The European Court noted that although the disclosure of confidential psychiatric data was found to be unlawful by the Court of Appeal, it did not result in the discontinuation of the disclosure of confidential data in the court case-file or any award of compensation to the applicant for damages suffered as the result of the unlawful interference with his private life.

• Information is still awaited as to whether the confidential information regarding the applicant has been removed from the court case-file.

General measures:

1) Violation of Article 8

a) Violation of the right to respect for home:  It transpires from the judgment of the European Court that the violation was due to the authorities’ failure to comply with the statutory safeguards (see §51). By a letter dated 07/09/2007, the Ukrainian authorities drew the attention of investigating bodies involved in pre-trial investigation (the Ministry of the Interior and Office of the Prosecutor General) to the European Court’s conclusions concerning the violation of the applicant’s right to respect for his home. The Office of the Prosecutor General has indicated, by letter of 20/09/2007, that officials supervising the lawfulness of the pre-trial investigation had been acquainted with the European Court conclusions in the present case. By letter dated 20/09/2007, the Ministry of the Interior indicated that training concerning the Court’s conclusions in this judgment would be given in regional departments.

▪ Information is awaited on the trainings held at the Ministry of Interior’s regional department.

b) Violation of the right to respect for private life:

The Court of Appeal found that the judges of the lower courts lacked training in the field of confidential data protection and notified the Regional Centre for Judicial Studies of the need to remedy this shortcoming in their training programme (see §25 of the judgment).

▪ Information provided by the Ukrainian authorities (31/10/2007): in December 2002, that is, after the events in the case, the Court of Appeal of Chernihiv Region held training for judges concerning the legislation on collection, use and dissemination of confidential personal data.

• Information is still awaited on further measures taken to prevent or put an end to the disclosure of confidential psychiatric data. Further training (especially of firs- instance judges) in the field of data protection would be useful in this respect.

2) Violation of the presumption of innocence (Article 6§2)

• Information provided by the Ukrainian authorities on 31/10/2007: By letter of 07/09/2007 the attention of the Supreme Court of Ukraine and its judges was drawn to the European Court’s conclusions in the present case, in particular as regards the obligation to respect the principle of presumption of innocence. By letter dated 20/09/2007, the Supreme Court reported that the judgment had been sent to the State Court Administration for further dissemination amongst appeal and local courts.

• Information would be useful on any further measure, such as special trainings for judges (especially in lower courts).

3) Violations of Article 13

• Information is awaited on an action plan with timetable and projected measures to introduce a remedy allowing a person to challenge the lawfulness of searches and obtain the appropriate compensation, in particular in the circumstances as appeared in the present case.

            4) Translation, publication and dissemination of the European court's judgment: The European Court’s judgment has been translated into Ukrainian and placed on the Ministry of Justice’s official web-site. It has also been published in the Official Herald of Ukraine, No. 19 of 26/03/2007, while a summary was published in the Government’s Currier No. 44 of 13/03/2007.

The judgment together with the circular has been sent to all state authorities concerned (see above). The European Court’s conclusions in the present judgement were also brought to the attention of the students of the relevant educational establishments.

15007/02           Ivanov, judgment of 07/12/2006, final on 07/03/2007

This case concerns the excessive length of criminal proceedings which began in September 1995 and were still pending when the European court gave judgment (over 9 years within the European Court's jurisdiction ratione temporis) (violation of Article 6§1) and the absence of an effective remedy in this respect (violation of Article 13).

The case also concerns a violation of the applicant's right to freedom of movement in that, during the proceedings the applicant was required not to abscond for a period of approximately 10 years and 4 months (8 years and 8 months within the jurisdiction ratione temporis of the European Court) (violation of Article 2 of Protocol No. 4).

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

• Information provided by the Ukrainian authorities (31/10/2007): The proceedings against the applicant are closed and on 22/05/2007 the Panel of Judges in Criminal Cases dismissed the applicant's cassation appeal, so that the judgment became final.

General measures:

1) Violation of Article 6§1 and Article 13: The problem of the excessive length of the criminal proceedings and of the absence of an effective remedy is being examined in the context of the Merit group of cases (66561/01, Section 4.2).

2) Violation of Article 2 of Protocol No. 4: The European Court noted that the application of the obligation not to abscond was provided by law and pursued a legitimate aim.

However, the European Court noted that the mere length of the restriction in the present case could be sufficient to conclude that it was disproportionate to the aim pursued, the more so given that the charges against the applicant had already become time-barred in September 2000, whereas the restriction was imposed on him until May 2006.

• Information provided by the Ukrainian authorities on 11/04/2008: The Code of Criminal Procedure of Ukraine (Articles 148, 165 and 165-1) provides that a preventive measure shall be withdrawn by the competent authority as soon as it ceases to be necessary. The withdrawal decision shall be grounded and the person concerned shall be immediately informed thereof.

• Assessment: The provisions on preventive measures do not appear to set any time-limit for the imposed undertaking not no abscond or to provide automatic or periodic review of the restriction imposed. Thus it seems that the observance of a person’s right to freedom of movement primarily depends on due diligence of the relevant state authority.

• Information would be useful in such circumstances, as to whether there is any control mechanism ensuring compliance by the relevant state authorities with their obligations under the legislation mentioned, thus, preventing violations of the right to freedom of movement.

3) Translation, publication and dissemination of the judgment: The judgment of the European Court has been translated into Ukrainian and placed on the Ministry of Justice's official website. It was published in the Official Herald of Ukraine, No. 23 of 10/04/2007. Summary of the Court's judgment was also published in the Government Currier, No. 58 of 31/03/2007.

On 28/04/2007 the judgment of the European Court was sent, together with explanatory notes, to the Supreme Court of Ukraine and to all state investigating bodies, namely the Ministry of Interior, the Office of the Prosecutor General, the State Security Service and the State Tax Administration, drawing their attention to the findings of the European Court and inviting them to take account of them in their daily practice in order to avoid new, similar violations.

The Supreme Court also drew the attention of the heads of courts of appeal to the European Court’s conclusions in this case and to the necessity to take them into account in their practice.

803/02              Intersplav, judgment of 09/01/2007, final on 23/05/2007[117]

17707/02          Melnychenko, judgment of 19/10/2004, définitif le 30/03/2005

The case concerns the refusal by the Central Electoral Commission (“CEC”), upheld by the Supreme Court, to register the applicant as a candidate for the 2002 parliamentary elections. The reason given for the refusal was that, having stated his legal residence address in Kyiv (“propiska”) as his place of residence for the previous five years, the applicant provided false information about his place of residence as since 2000 he had been granted refugee status in the United States and left Ukraine.

The European Court found that neither the relevant legislation nor practice contained a direct eligibility requirement of “habitual” or “continuous” residence in the territory of Ukraine. Furthermore, no distinction was made in the law between “official” and “habitual” residence. It is clear that the applicant’s “habitual residence” had been partly outside Ukraine during the relevant period, as he had had to leave the country on 26/11/2000 for fear of persecution and had taken up residence as a refugee in the United States. However, the propiska in his internal passport remained unchanged. The Court further noted that requirement of residence in Ukraine was not absolute and that the domestic authorities, in allowing or refusing registration of a particular candidate, were obliged to take into account his or her specific situation.

Consequently, the Court found that the decision of the Central Electoral Commission to refuse the applicant’s candidacy for the Verkhovna Rada as untruthful, although he still had a valid registered place of official residence in Ukraine (as denoted in his propiska), was in breach of Article 3 of Protocol No. 1.

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

• Applicant’s position: The applicant requested the restoration of his right to stand as a candidate in the parliamentary elections (restitutio in integrum). For this purpose, he asked to be re-inscribed on the lists of the candidates for the 2002 elections. Thus, he requested the CEC to cancel its 2002 decision which was called into question in the European Court's judgment. The CEC dismissed this request on the ground that national law does not allow the reopening of proceedings before a non-jurisdictional body following a judgment of the European Court.

• Information provided by the authorities: On 14/07/2005, the Supreme Court set this decision aside and sent the case back to the CEC indicating that it must examine the applicant's request, taking into account the judgment of the European Court. At the end of August 2005, the CEC requested the Supreme Court to quash its own decision of 2002 which confirmed the refusal to register the applicant on the electoral lists, even though the Supreme Court had indicated that the decision in question was not an obstacle for the examination of the applicant's request by the CEC.

On 28/10/2005 the CEC rejected the applicant's request to be registered as a candidate on the 2002 lists on the ground that national law does not allow such a possibility. On 15/11/2005 the Supreme Court annulled its decision of 2002 challenged in this judgment. Finally, on 05/12/2005 the CEC annulled the part of its decision of 2002 concerning the refusal to register the applicant on the 2002 electoral lists.

• Assessment of the present situation and of the measures to be taken: It appears that the consequences of the violation found in this case have been erased as far as possible. That should avoid the applicant's exclusion from future elections on grounds already challenged in the judgment of the European Court.

General measures: The new law on parliamentary elections entered into force on 01/10/2005. However this law does not specify what should be understood by candidates’ residence, and particularly whether the term used by the law refers to the “legal” residence or the “habitual” residence of candidates.

The idea of a special draft law to clarify this issue was abandoned by the Ukrainian authorities on the ground that preventing new, similar violations may be achieved by other means, not least by providing an official interpretation of the provisions of the election law regarding residential requirements.

In the meantime the authorities indicated that the provisions of the new law on parliamentary elections concerning the determination of the place of residence of voters may be applied by analogy to the determination of the place of residence of candidates (Article 39§11). These provisions refer to the official residence (the former propiska) as defined by the law on freedom of movement and free choice of residence.

• Information is still awaited on on what authority, by what means and in what terms it is expected to give the official interpretation.

The judgment of the European Court was published on the website of the Ministry of Justice www.minjust.gov.ua and in the Official Journal, issue No. 21/2005. A copy of the judgment has been sent to the CEC and to the Supreme Court.

39424/02           Kovach, judgment of 07/02/2008, final on 07/05/2008

The case concerns the electoral authorities’ decision to annul under the 2001 Parliamentary Elections Act in force at the material time, the results of the vote to the Ukrainian unicameral parliament notably in the applicant’s electoral divisions, thus depriving him of his right to sit as a member of parliament once elected.

While Section 70 of this law laid down clear grounds for annulment of the vote, its Section 72 only referred to “other circumstances which make it impossible to establish the voters' wishes”. The annulment decisions taken by the Electoral Commission, Central Election Commission and the Supreme Court in respect of the applicant’s electoral division were taken under Section 72 on account of the irregularities noted inter alia by the observers of the applicant’s opponent.

The European Court noted that all these authorities failed to address the conflict between Sections 70 and 72 of the law or to explain why the perceived breaches obscured the outcome of the vote in the divisions concerned to such an extent that it became impossible to establish the wishes of voters. In these circumstances, the European Court found that the decision to annul the vote in electoral divisions concerned must be considered as arbitrary and not proportionate to any legitimate aim (violation of Article 3 of Protocol No. 1).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. Whilst acknowledging the applicant’s entitlement to pecuniary damages, namely in respect of the salary he would have received as a Member of Parliament, the European Court nonetheless dismissed the applicant’s claims under this head as he only provided details of the salary but failed to specify what his net loss would have been.

• Information provided by the Ukrainian authorities (12/09/2008): the authorities have informed the applicant in writing of his right under the law in force to seek review of the proceedings at issue.

• Information is awaited as to whether the applicant has been restored to his rights.

General measures:

            1) Legislative reform: The new Parliamentary Elections Act entered into force on 01/10/2005. It provided new regulations sufficiently specifying the grounds for annulment of the vote by government bodies. New Law retains the power for commissions of electoral divisions to annul the vote if the number of fraudulent votes exceeds 10% of the total votes cast (Article.90). Article 92 provides that, after a recount, commissions of electoral constituencies are entitled to annul the vote in an electoral division if the circumstances set out in Article 90 have been established, or if intentional acts have been made out which wrongfully interfered with the work of the members of the electoral commissions or the candidates' observers.

2) Publication of the judgment: The judgment was translated into Ukrainian and published in the official government publication, the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy). A summary of the judgment was also published in the Government's Currier (Uriadovyi Kurier), No.103 of 6/06/2008.

• Assessment: No further general measures seem to be necessary.

33089/02           Romanova, judgment of 13/12/2007, final on 13/03/2008

The case concerns the unfairness of certain proceedings brought by the applicant following her dismissal from a post with a maintenance company of a Ukrainian University.

Article 21 of the Ukrainian Code of Civil proceedings provides that a judge who has been involved in the first instance examination of the case shall not participate in its rehearing on a remittal from a higher court. The European Court found that a failure to comply with this provision had constituted a violation of the applicant’s right to a fair hearing on account of her case not having been considered by an impartial tribunal (violation of Article 6§1).

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

• Information is awaited as to whether the applicant may resubmit her claims to domestic courts.

General measures: It would appear from the judgment that the national law is in compliance with the requirements of the Convention.

The European Court's judgment has been translated into Ukrainian and placed on the Ministry of Justice's official web-site (www.minjust.gov.ua). It has also been published in the Official Herald of Ukraine, No. 127, while a summary was published in the Government's Currier No. 66 of 9/04/2008.

 Information is awaited on the dissemination of the judgment to all courts. Information would also be useful on the measures takento ensure judges’ compliance with their obligations provided by the Code of Civil proceedings.

                       - 17 cases mainly concerning the length of criminal proceedings and the absence of an effective remedy

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

23194/02           Aybabin, judgment of 18/12/2008, final on 18/03/2009

31585/02          Benyaminson, judgment of 26/07/2007, final on 26/10/2007

39405/03           Chervonets, judgment of 24/04/2008, final on 24/07/2008

28780/02           Farafonova, judgment of 11/12/2008, final on 11/03/2009

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

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

The Merit, Benyaminson, and Farafonova cases also concern the absence of an effective remedy against the excessive length of criminal proceedings (violations of Article 13).

The Chervonets case also concerns the failure to enforce a domestic court decision delivered in civil proceedings initiated by the applicant (violations of Article 6§1 and of Article 1 of Protocol No. 1).

Individual measures:

            1) Merit case: the Ukrainian authorities were invited to provide information on measures adopted or under way to accelerate these proceedings and bring them to an end. The applicant on several occasions complained (most recently on 27/07/2009) that the Ukrainian authorities had not complied with the judgment of the European Court. In particular, he stated that, because of the pending criminal proceedings, he has been unable to claim the property and documents seized during the prosecution. The authorities indicated that the General Prosecutor’s Office is supervising the conduct of proceedings. They also specified that the Tchernovtsi Regional Court suspended the criminal investigation due to the applicant’s failure to appear and issued a warrant for him to be brought before the investigation authorities. The Ukrainian authorities noted that a key problem affecting the length of criminal proceedings against the applicant resulted from the fact that his co-accused could not be brought before the domestic courts. Thus, following the European Court’s suggestion, they disjoined the proceedings. On 17/02/2005 the proceedings against the applicant were suspended due to the failure to find the applicant, who is currently abroad.

• Additional measure required: The authorities are invited to consider possible solutions with a view to bringing the proceedings to an end despite the non-appearance of the applicant.

            2) Antonenkov and others: The proceedings were closed on 07/12/2006 due to the prescription of criminal liability.

3) Other cases

• Information is expected on measures adopted or under way to accelerate the proceedings in the Nosalskiy, Solaz, and Chervonets cases and bring them to an end. In the Chervonets case, information is also expected concerning the enforcement of the domestic court’s decision delivered in the applicant’s favour.

General measures:

            1) Excessive length of criminal proceedings: The main reasons for the protracted length of the proceedings in the applicants’ cases can be summarised as follows:

-           the authorities’ failure to take any investigative action for a long period of time (Benyaminson, Kobtsev);

-           the courts’ failure to take the appropriate measures to ensure the presence of the applicant, the victim and the witnesses (Benyaminson; Mazurenko, Artsybashev, Kobtsev);

-           the numerous transfers of cases between various trial courts and remittals for additional investigations, expert assessments and re-trials (Merit, Benyaminson, Antonenkov and others, Yurtayev, Ryshkevich, Safyannikova, Farafonova, Lugovoy, Kalinichenko);

-           frequent transfers of cases to new investigators who had to acquaint themselves with the files (Benyaminson);

-           bad case-management by courts: considerable intervals between hearings, numerous adjournments of cases due to judges’ absence (participation in other hearings, illness or a “business trip”) (Farafonova, Lugivoy, Kalinichenko, Kobtsev).

• The Ukrainian authorities are invited to inform the Deputies of measures taken or envisaged to resolve the problems at the heart of the violations found by the European Court, thus preventing new, similar violations.

In this respect, it may be recalled the Committee's position that the setting up of domestic remedies (see below) does not dispense States from their general obligation to solve the structural problems underlying the violation (see for example Interim Resolution ResDH(2005)114).

            2) Lack of an effective domestic remedy: Following a decision by the working group in charge, the 2005 draft law On pre-trial proceedings as well as enforcement of court decisions within a 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 provides a new remedy making it possible to complain to administrative courts about violations of the right to proceedings within reasonable time. It includes 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. 

• A copy of the latest official version of the draft as well as the information on the time-table envisaged for its adoption is awaited. The authorities’ own assessment of how this draft law would improve the existing situation is expected. In particular, the authorities’ comments on whether the draft law provides for a possibility to accelerate the enforcement proceedings would be appreciated.

3) Failure to enforce domestic courts’ decisions: This problem is being examined in the context of the Zhovner group of cases (56848/00, Section 4.2).

4) Publication of judgments: The judgment of the European Court concerning the Merit case was translated and published in the Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy) of 13/08/2004. The official Ukrainian translation of the judgment has also been published in the specialised law publications, namely Legal Bulletin of Ukraine (n°24, June 2004), Bulletin of the Supreme Court of Ukraine (n° 7, 2004), Law of Ukraine and the Legal Newspaper (n° 9, May 2004).

Other judgments have been translated into Ukrainian and published as follows:

- Artsybashev – Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No. 74, October 2008; summary of the judgment was also published in the Government’s Currier (Uriadovyi Kurier), No.197 of 22/10/2008;

 - Mazurenko – Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No. 34 of 21/05/2007; summary of the judgment was also published in the Government’s Currier (Uriadovyi Kurier), No.85 of 17/05/2007;

 - Fedko - Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No. 80, October 2008; summary of the judgment was also published in the Government’s Currier (Uriadovyi Kurier), No.186 of 7/010/2008;

- Ryshkevich - Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy), No. 75, October 2008; summary of the judgment was also published in the Government’s Currier (Uriadovyi Kurier), No.197 of 22/10/2008.

 - Lugovoy - Summary of the judgment published in the Government’s Currier (Uriadovyi Kurier), No.186 of 7/010/2008;

 - Solaz - Summary of the judgment published in the Government’s Currier (Uriadovyi Kurier), No.186 of 7/010/2008;

- Chervonets - Summary of the judgment published in the Government’s Currier (Uriadovyi Kurier), No.152 of 19/08/2008;

All the judgments, with the exception of Benyaminson, Kalinichenko, Nosalskiy, Safyannikova, Artsybashev, Lugovoy, Ryshkevich, Aybabin and Farafonova, can be found on the web site of the Ministry of Justice (www.minjust.gov.ua).

• Information is awaited on the publication of the judgments in the cases where this has not been done.

5) Dissemination of judgments: By letter of the Government Agent of 8/09/2006 the judgment in the Kobtsev case was sent to the Ministry of the Interior to take measures to avoid similar violations in future. The judgment was transmitted to the local departments of the Ministry.   

By a circular letter of the Government Agent of 10/05/2007 attention of the Supreme Court and the General Prosecutor’s Office was drawn to the European Court’s conclusion in the Mazurenko judgment.

• Information is awaited on dissemination of other judgments.

- 68 cases mainly concerning the length of civil proceedings and the lack of an effective remedy

                        (See Appendix for the list of cases in the Naumenko Svetlana group)

All these cases concern the excessive length of civil proceedings (violations of Article 6§1). In some of these cases the European Court also found violations of Article 13 due to the lack of an effective remedy against the unreasonable length of the judicial proceedings.

The case of Svetlana Naumenko also concerns the quashing of final court decisions given in the applicant's favour by means of a supervisory review procedure (protest), following applications lodged by a state official under the Code of Civil Procedure in force at that time. The European Court found that the use of the supervisory review procedure infringed the principle of legal certainty and thus the applicant's right to a court (violation of Article 6§1). The European Court also found in this case that the sustained non-enforcement of the final judicial decision in the applicant's favour (recognising her right to a pension and entitlement to state privileges) constituted a violation of her property rights (violation of Article 1 of Protocol No.1).

In addition, it found that examination by the Deputy President of the Odessa Regional Court of the application for supervisory review that he had himself lodged with the Presidium – of which he had been a member and Deputy President – was incompatible with the requirement of impartiality (violation of Article 6§1).

Individual measures:

• Information is expected on the current state of the proceeding in 13 cases (see table in the Appendix containing the list of cases in this group) as well as on measures adopted or under way to accelerate the proceedings at issue and bring them to an end.

 General measures:

            1) Excessive length of proceedings: The main reasons for the protracted length of the proceedings in the applicants’ cases may be summarised as follows:

- courts’ failure to take the measures needed to ensure the presence of plaintifs, defendants and witnesses;

- numerous transfers of cases between trial courts and remittals for expert assessments and re-trials;

- bad case-management by courts: considerable intervals between hearings, numerous adjournments due to judges’ participation in other hearings, illness or absence on business.

            2) Lack of an effective domestic remedy: Following a decision 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 of violations 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 regarding the adoption of the draft law. 

• Are awaited: a copy of the latest official version of the draft as well as information on the time-table envisaged for its adoption, togather with the authorities’ own assessment of how this draft law would improve the existing situation is expected. In particular, the authorities’ comments would be appreciated on whether the draft law provides a possibility to accelerate enforcement proceedings.

            3) Sustained failure to enforce final judicial decisions: The case of Svetlana Naumenko presents similarities to those in the Zhovner group (56848/00, Section 4.2) in which the Committee is supervising the adoption of general measures to prevent further similar violations.

            4) Supervisory review procedure and the related issue of impartiality: The case of Svetlana Naumenko presents similarities to that of Sovtransavto Holding (48553/99, rubrique 4.3), in which the Committee is supervising the adoption of general measures to prevent further similar violations.

            5) Publication and dissemination of the judgments: All these judgments have published in the official publications. Most of them may be found on the website of the Ministry of Justice (www.minjust.gov.ua). A number of judgments, accompanied by circular letters, have been sent by the Government Agent to the relevant domestic authorities.

- 13 cases against the United Kingdom

3455/05            A. and others, judgment of 19/02/2009 – Grand Chamber

This case concerns the applicants' certification by the UK authorities as “suspected international terrorists” their detention, and subsequent legal challenges to their certification and detention (violation of Articles 5§1, 5§4 and 5§5).

Background: On 18/12/01 the United Kingdom lodged a derogation pursuant to Article 15 of the European Convention with the Secretary General of the Council of Europe in respect of Part 4 of the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act). The derogation was made on the basis that there was a public emergency in the United Kingdom and stated that the provisions in Part 4 of the 2001 Act may be inconsistent with Article 5§1. In 2001 the applicants were certified by the United Kingdom authorities under Part 4 of the 2001 Act as “suspected international terrorists” and consequently detained. They challenged their certification and detention in the Special Immigration Appeals Commission (SIAC) and on appeal to the House of Lords.  

Derogation from Article 5§1 under Article 15 of the European Convention: The European Court first considered the validity of the United Kingdom's derogation from Article 5§1, under Article 15 of the European Convention. The Court concluded that the derogation was valid, as at the time there was a public emergency threatening the life of the nation (§181).

Violation of Article 5§1: The Court then went on to consider whether the measures made pursuant to that derogation (i.e. Part 4 of the 2001 Act) derogated “only to the extent strictly required by the exigencies of the situation” (§182). The Court found that the measures under which the applicants were detained were “disproportionate in that they discriminated unjustifiably between nationals and non-nationals” (§190).

Violation of Article 5§4: The applicants' certification and detention was considered before the SIAC courts, which use a system of “closed evidence” and “special advocates” to consider evidence related to national security issues (see §§91-93).The European Court found that given the applicants' lengthy and, at the time, possibly indefinite detention, the proceedings before the SIAC needed to include certain guarantees. The Court found that those guarantees were absent in proceedings against four of the applicants where those applicants were unable to respond to allegations against them: such allegations being general assertions or contained entirely in closed evidence unavailable to the applicants or their counsel.

Violation of Article 5§5: Lastly, the European Court stated that the violations found could not give rise to an enforceable claim for compensation before national courts.

Individual measures: The European Court awarded just satisfaction for non-pecuniary damage to all eleven applicants, save the second and fourth.

Initially, all the applicants were detained in a high-security prison. As none of them were United Kingdom nationals, they could opt under the 2001 Act to leave the country at any time.  The second and fourth applicants thus elected to leave the United Kingdom in 2001 and 2002 respectively.

On 11/03/05, the other applicants were released and then immediately made subject to control orders under the Prevention of Terrorism Act 2005 (see General Measures below).

On 11/08/05 the United Kingdom authorities served Notices of Intention to Deport on applicants numbered 5-11, following assurances from the Algerian and Jordanian governments that the applicants would not be ill-treated on return. A number of the applicants appealed their deportation.

• Information provided by the United Kingdom authorities (06/04/2009): with the exception of the eighth applicant, the applicants are no longer detained. The eighth applicant is detained but not under Part 4 of the 2001 Act (see general measures).

• Information is awaited as to whether any of the applicants and in particular the eighth applicant are held subject to a control order under the 2005 Act and in accordance with the safeguards identified by the European Court in relation to Article 5§4 (see general measures). 

• The information provided by the United Kingdom authorities on 28/09/2009 concerning individual measures is being assessed.

General measures:

1) Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the notice of derogation on 16/03/05.

2) Violation of Article 5§1: Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force on 11/03/2005. The control order regime under the 2005 Act operates regardless of nationality (§83).

Sections 1-9 of the 2005 Act which set out to the control order regime, remain in force for one year at a time and are then subject to renewal by Parliament. On 05/03/09 Parliament voted to renew the powers under the 2005 Act for a further year, from 11/03/09 - 11/03/10.

• Assessment: no further general measures appear necessary in relation to this violation.

3) Violation of Article 5§4: The SIAC was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, the SIAC continues to deal with cases where the Secretary of State for the Home Department seeks to deport or exclude individuals from the United Kingdom on national security or other public interest grounds under the Nationality, Immigration and Asylum Act 2002.

The control order regime which relates to persons involved in terrorism related activity under the 2005 Act also involves the use of “closed material” and the presence of “special advocates”. The procedures under the 2005 Act were modelled on the SIAC procedures but exist under separate legislation.

On 10/06/2009, sitting exceptionally as a nine-judge panel, the House of Lords gave judgment in the case of Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action [2009] UKHL 28. The judgment considered the impact of the European Court’s finding of a violation of Article 5§4 on the control order regime set out under the 2005 Act. Noting that the legal framework of the violation in this case was different from that before them, the Lords stated that “the clear terms of the judgment in A and others v United Kingdom resolve the issue raised in these appeals” (§64).

They went on to state that “…the essence of the Grand Chamber’s decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation those allegations. Provided that this requirement is satisfied there can be a fair trial …” (§59). The Lords did not make a Declaration of Incompatibility under the Human Rights Act 1998 in respect of the 2005 Act but stated: “If the Government adjudges that it is necessary to impose serious restrictions upon an individual’s liberty without giving that individual a fair opportunity to challenge the reasons for doing so … then the Government will have to consider whether or not to derogate from Article 6 of the European Convention. Until that time, judges will have to grapple with precisely how much disclosure is necessary to enable the controlled person to mount an effective challenge and the Secretary of State will have to grapple with whether to agree to it. The principles are clear, although by no means easy to apply in particular cases…” (§106).

Information is awaited: on any measures taken or envisaged in relation to this violation in respect of the application of the 2002 and 2005 Acts referred to above, particularly in light of the judgment of the House of Lords.

• The information provided by the United Kingdom authorities on 28/09/2009 concerning general measures is being assessed.

            4) Violation of Article 5§5: The violation of Article 5§5 follows the European Court’s finding that the violations found could not give rise to an enforceable claim for compensation before the national courts.

Information is awaited on any measures taken or envisaged in respect of this violation.

• The information provided by the United Kingdom authorities on 28/09/2009 concerning general measures is being assessed.

5) Publication: the judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D) (203). It was also widely reported on in the British media.

30562/04+         S. and Marper, judgment of 04/12/2008 – Grand Chamber[118]

This case concerns an unjustified interference with the applicants' right to respect for their private life due to the indefinite retention of fingerprints and DNA samples taken from them in 2001, in connection with the investigation of offences for which they were ultimately not convicted (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). The fingerprints and samples were to be retained indefinitely under Section 64 of PACE. The first applicant (a minor) was tried and acquitted. The charge against the second applicant was dropped.

Both applicants requested that their fingerprints and samples be destroyed, however the police 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.

• Information provided by the United Kingdom authorities (19/01/2009): Following a request from the applicants, the responsible police authority has destroyed the applicants' fingerprints and DNA samples and profiles. On 09/06/2009 the United Kingdom authorities stated that the applicant S. has had further biometric data taken on suspicion of having committed a subsequent criminal offence.

• Assessment: no further individual measures appear necessary. The retention of later data taken from S is linked to the general measures.

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 of children under the age of 10 from the National DNA database, and such material will not be retained in the future (10 years 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) 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, enabling the Secretary of State to make regulations governing the retention of fingerprints and DNA samples. The clauses will be the legal basis for any regulations that the Government makes following the public consultation (see below). 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 only be able to vote to adopt or reject the regulations in their entirety without time allocated for a full parliamentary debate. 

In its report on the Bill of 12/06/2009, the House of Lords Select Committee on Delegated Powers and Regulatory Reform concluded that the extremely wide delegated powers should not be allowed to remain in the Bill. Provisions about this important and complex subject should be in primary legislation, given the usual opportunity for detailed scrutiny by Parliament. The United Kingdom government is considering the report.

• Information is awaited on the progress of the relevant clauses in the Policing and Crime Bill.

            3) Regulatory framework governing the retention of fingerprints and DNA information: The United Kingdom authorities held a public consultation on the measures and options available to implement the European Court's judgment. The consultation, entitled Keeping the Right People on the DNA database, was open for three months during the summer of 2009 (07/05-07/08/2009). It received over 500 responses and is available online at : <http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/>

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.

In addition to the consultation, the United Kingdom authorities are hosting a series of meetings with key interest groups including the Equality and Human Rights Commission, NGOs and other groups from civil society.

On 14/05/2009, a draft of the regulations to be made under the Policing and Crime Bill was deposited in the House of Commons library (ref DEP2009-1431). They are available online at http://deposits.parliament.uk/. The provisions in the draft regulations reflect the content of the public consultation (see below).

Ministers will consider the responses to the consultation together with the views provided by the House of Lords Select Committee on Delegated Powers and Regulatory Reform, the Joint Committee on Human Rights and the Home Affairs Select Committee. This will determine the content of legislation and statutory process to be followed.  In addition, Ministers will consider a report due in September concerning further research on retention periods and propensity to offend.

• Information is awaited on the progress of the report of the Implementation Group as well as the content of proposed legislation.

            4) Proposals set out in the public consultation:

a) Provisions for the taking of DNA and fingerprints: The existing position will be retained. DNA samples and fingerprints will be taken on arrest from a person detained at a police station for a recordable offence (that is any offence punishable by imprisonment under the National Police Records (Recordable Offences) Regulations 2000). Recordable offences include inter alia begging, theft of a bicycle, public drunkenness, trespass and impersonating a police officer.

b) Retention of DNA samples: A DNA sample is the actual, biological sample supplied, such as a mouth swab or blood. DNA samples would be destroyed automatically, within 6 months. The obligation to destroy would be set out under the proposed regulations.

• Assessment: the European Court noted the particular sensitivity of retaining samples (§120 of the judgment) and the reduced margin of appreciation available, given that most Council of Europe states require immediate destruction of samples (§112 and §120 of the judgment). This proposal for automatic destruction appears to reflect the terms of the judgment.

c) DNA profile retention and fingerprint retention for adults: A DNA profile is the numerical information taken from the DNA sample and loaded on to the DNA database. Adults who are arrested and not convicted of any recordable offence will have their fingerprints and profiles retained for 6 years. The data will be automatically deleted after this period.  Adults who are arrested and not convicted for serious violent, sexual or terrorism-related offences will have their fingerprints and profiles retained for 12 years. The data will be automatically deleted after this period.

• Assessment: The European Court expressed particular concern that “persons (..) who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons” (§122 of the judgment). The European Court further criticised “the blanket and indiscriminate nature of the powers of retention” (§125 of the judgment). The application of limited retention periods addresses the Court’s concern that the current regulatory framework does not distinguish between those who are convicted of an offence and those who are not.  Furthermore, the application of two different detention periods for unconvicted persons, based on the nature of the offence for which an individual is arrested, would appear to respond to the Court's criticism of an indiscriminate approach. However, the question remains whether the proposed retention of DNA profiles and fingerprints is proportionate and strikes a fair balance between the competing public and private interests, as required by the European Court’s judgment. In this respect, it should be noted that the European Court observed that the strong consensus that exists among contracting states in this sphere is of considerable importance and narrows the margin of appreciation in this field (§112 of the judgment). The Court noted in particular that “in the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge” (§108 of the judgment). The Court referred also to Article 8 of Committee of Ministers Recommendation Rec(92)1 which states inter alia that: “measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used”. According to this provision, the domestic law of the member state may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law. The European Court stated in particular that the regime in Scotland which provides for retention of DNA for unconvicted adults only in cases of serious offences and then only for 3 years, was in accordance with Committee of Ministers Recommendation Rec(92)1.

In the light of all the above, it seems that the proposed measures and in particular the proposal to retain fingerprints and DNA profiles for 6 years following arrest for non-serious offences do not conform to the requirement of proportionality.

• The authorities’ comments in this respect would be useful.

d) DNA profile retention and fingerprint retention for children - aged 10-18: Children arrested but not convicted of a recordable offence on one occasion only will have their profiles deleted after 6 years or on their 18th birthday, whichever is sooner. Children arrested and not convicted for a recordable offence on more than one occasion will have their profiles retained for 6 years. Children arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years.

With the exception of those children arrested only once for a recordable offence, the provisions for children are the same as those for adults. Therefore the assessment made in section c) above also applies to the proposed retention periods for minors aged between 10 and 18 years.

• Assessment: The European Court criticised the existing regulatory framework, as it allowed indefinite retention irrespective of the age of the suspected offender (§119 of the judgment). The European Court noted that the retention of data may be especially harmful in the case of minors, given the importance of their development and integration into society, and emphasised the need for the special protection of children’s privacy at criminal trials drawing on Article 40 of the UN Convention of the Rights of the Child (§124 of the judgment). Given that the provisions for the retention of fingerprints and profiles from children are almost identical to those proposed for adults, the European Court's specifications on the vulnerability of children and the particular importance on the treatment of minors in the criminal justice system, the proposed measures do not appear to respond to the requirements of the judgment.

• The authorities’ comments in this respect would be useful.

e) Review mechanism for destruction of profiles:

The current system will remain in place. As before, a request for fingerprints or a profile to be destroyed in exceptional circumstances (such as wrongful arrest/mistaken identity) is made to the Chief Constable of the relevant police force. The criteria against which such a review is to be considered may be codified in regulations.

• Assessment: In relation to the existing system, the European Court stated that “…there is no provision for independent review of the justification for the retention according to defined criteria.” (§119 of the judgment). Retention of the existing system, whereby a request for destruction is made to the Chief Constable of the police force that initially took the DNA sample and profile, does not appear to correspond with the need for an independent review mechanism. It is noted that such a decision would be subject to judicial review, however this is the same as the position considered by the Court in the judgment. In addition, the European Court has questioned the effectiveness of judicial review when considering proportionality in light of Article 8 (see McCann, Application No.19009/04).

Thus continuation of the existing system, which was found to be in violation of the Convention – in particular in relation to the lack of independent review – does not appear effectively to execute the judgment. As the reference to “defined criteria” is highlighted by the Court along with the essential requirement for to have “clear, detailed rules” (§99 of the judgment), codification of such criteria would be welcome.

• The authorities’ comments in this respect would be useful.

f) Evidence relied upon to support the existence of the 6- and 12-year rules: Research by the Jill Dando Institute is cited along with two US academic studies. There has also been a review of data held on the Police National Computer (PNC). 

The approach of the authorities to the application of the academic studies is that “we …believe that the risk of offending following an arrest which did not lead to a conviction is similar to the risk of reoffending following conviction.” (§6.10 of the consultation). This strongly contrasts with the Court's concern about “the risk of stigmatisation”, and the Court’s observation that “the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding the innocence of an accused may be voiced after his acquittal.” (§122 of the judgment). In addition, in W. against the Netherlands (application No. 20689/08, decision of 20/01/2009.) retention of DNA material (for convicted persons) was accepted where it was retained for a “prescribed period of time dependent on the length of the statutory maximum sentence that can be imposed for the offence committed.” The approach of the authorities does not consider retention on the basis of any link with the maximum sentence but rather on possibility of future offending.

The European Court stated that “any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance” concerning the permissible limits of interference with private life in this sphere. (§112 of the judgment)

• Assessment: Given the United Kingdom’s claimed “pioneer role”, reliance only on academic studies, two of which do not relate to the United Kingdom, and an approach to those studies which appears to rest on the principle that unconvicted individuals will commit criminal offences, does not appear sufficient to justify retention periods which do not appear to be in conformity with the Court’s judgment.

• The authorities’ comments in this respect would be useful.

g) Proposed action for samples and profiles taken prior to the judgment: There is a total of around 850 000 “legacy” profiles on the database. For around 350 000 of those it is clear that individuals were convicted or acquitted. Of the profiles where the status of the individual is clear, the United Kingdom proposes to apply retrospectively the retention periods set out in the consultation paper (see sections c) and d) above). There are around 500 000 profiles for which it is unclear if the individual was convicted or acquitted.

No decision has been taken yet on the fate of these profiles. The United Kingdom authorities believe it is possible that some of these profiles may be linked with criminal records but they are unable to easily certify this. Further research is being conducted to establish whether it is in fact possible to cross-reference this information or whether all 500 000 profiles should be deleted.

• Assessment: as it seems that the proposed retention periods are disproportionate, particularly in relation to non-serious offences, the retrospective application of those retention periods to legacy profiles would be equally inappropriate.

• Further information is awaited on the measures proposed to deal with the 500 000 profiles which cannot be linked to a police record.

5) Publication and dissemination: The judgment has been widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was disseminated to chief police officers and to chief crown prosecutors.

The Deputies, 1.             recalling that the Court found that “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard”; 2.             welcomed, as regards individual measures, the steps taken by the United Kingdom authorities to delete the relevant fingerprints, cellular sample and DNA profile with respect to both applicants; 3.             noted, as regards general measures, that the public consultation engaged on the measures proposed by the government to implement the judgment ended on 7 August 2009, and that the government now proposes to implement the necessary legislative reform by way of primary legislation, having included revised proposals concerning powers of retention in the Crime and Security Bill which has been presented to Parliament; 4.             welcomed the steps taken in the meantime by the United Kingdom authorities to delete information held on the National DNA Database concerning all persons under the age of ten years, 5.             welcomed that the new proposals foresee that all cellular samples should be retained for a maximum of six months from the date on which they were obtained and that time limits for the retention of fingerprints and DNA profiles should be introduced, with special provisions for minors; 6.             nevertheless noted that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 – 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities; 7.             noted that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases; 8.             decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of further information to be provided on general measures.

                       - 6 cases concerning the action of the security forces in the United Kingdom

28883/95          McKerr, judgment of 04/05/01, final on 04/08/01

37715/97          Shanaghan, judgment of 04/05/01, final on 04/08/01

24746/94          Hugh Jordan, judgment of 04/05/01, final on 04/08/01

30054/96          Kelly and others, judgment of 04/05/01, final on 04/08/01

43290/98          McShane, judgment of 28/05/02, final on 28/08/02

29178/95          Finucane, judgment of 01/07/03, final on 01/10/03

                       Interim Resolutions ResDH(2005)20, CM/ResDH(2007)73 and CM/ResDH(2009)44

                       CM/Inf/DH(2006)4-rev2, CM/Inf/DH(2006)4-addrev3 and CM/Inf/DH(2008)2-rev

These cases concern the death of applicants' next-of-kin during security forces operations or in circumstances giving rise to suspicions of collusion of such forces.

In this respect, the Court found various combinations of the following shortcomings in the proceedings for investigating deaths giving rise to possible violations of Convention rights (violations of Article 2): lack of independence of the investigating police officers from security forces/police officers involved in the events; lack of public scrutiny and information to the victims' families concerning the reasons for decisions not to prosecute; the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed; the soldiers / police officers who shot the deceased could not be required to attend the inquest as witnesses; the non-disclosure of witness statements prior to the witnesses' appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings; the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.

The McShane case also concerns the finding by the Court of a failure by the respondent state to comply with its obligations under Article 34, in that the police had - albeit unsuccessfully - brought disciplinary proceedings against the solicitor who represented the applicant in national proceedings for having disclosed certain witness statements to the applicant's legal representatives before the European Court.

Measures taken so far: Information on the measures taken so far by the United Kingdom authorities and the general and individual measures closed by the Committee of Ministers can be found in the above mentioned interim resolutions, their appendixes and the Secretariat's information documents. Information provided by the United Kingdom authorities regarding the outstanding general and individual measures since the adoption of Interim Resolution CM/ResDH(2009)44 at the 1051st meeting (March 2009) is summarised below:

Individual measures:

            1) Jordan case: At the preliminary hearing on 22/01/2009 the Coroner announced that hearings would be delayed until at least June 2009. Following that announcement, the applicant sought judicial reviews of the Coroner's decisions in relation to the anonymity of Police Service of Northern Ireland (PSNI) witnesses and compellability of witnesses who are outside the UK. The challenge to the Coroner's decisions on compellability of witnesses was withdrawn from the court on 5/03/2009. With regard to anonymity, the Coroner has sought the views of the next of kin and the PSNI in relation to the procedure to be adopted for determining applications by witnesses for anonymity and screening.

Consequently, the Coroner circulated a protocol for anonymity and screening applications to the legal representatives of interested parties on 22/06/2009. The process of applications (including obtaining risk assessment for witnesses) is expected to take until autumn 2009.

Regarding the issue of disclosure, on 31/03/2009 the Coroner received a request from the next of kin asking that he seek certain information from the PSNI. He is now waiting for submissions on this issue from both the PSNI and the next of kin. Once these are received, the Coroner may then convene a preliminary hearing before making his decision regarding the request.

Separately, in relation to a judicial review brought by the next of kin in December 2008 seeking disclosure by the PSNI of certain documents, a further decision is pending in which the judge concerned will seek to clarify matters that have arisen in relation to his original judgment. The applicants sought a further judicial review, challenging the decision of the Coroner not to recuse (remove) himself from the inquest proceedings. The application was heard by the High Court of Northern Ireland on 15 and 16/06/2009 and was subsequently rejected. The applicants have lodged an appeal against the refusal. The appeal hearing was scheduled to take place on 6 and 7 October. At the request of the applicant, a preliminary hearing in relation to the inquest which had been listed for 16/09/2009 was adjourned pending the outcome of the appeal. The inquest is provisionally listed for January 2010. 

            2) Case of Kelly and Others: The Historical Enquiries Team (HET) met with representatives of four of the nine families involved on 23/03/2009. The Pat Finucane Centre and Committee for the Administration of Justice were also present. The meeting was very positive. The HET continues to pursue a number of lines of enquiry (including animated reconstruction of the scene, interviews with witnesses and examination of a linked incident) in order to move to delivery of the Review Summary Report. This may take some time to finalise. Progress has been made with the Ministry of Defence (MoD) with respect to tracing soldiers and arranging interviews with them. In response to concerns raised by the next of kin, a pathology review has been commissioned with respect to one of the deaths. The HET continues to liaise with the families and update them on progress.

            3) McKerr case: The Coroner held a preliminary hearing on 16/09/2009 at which he determined that the Chief Constable should produce the Stalker/Sampson papers to him on or before the 9/11/2009. A further preliminary hearing is scheduled to take place on 30/11/2009. The case also remains subject to ongoing review by the Office of the Police Ombudsman of Northern Ireland (OPONI). The Ombudsman's office has access to the Stalker/Sampson papers and are currently examining a substantial amount of sensitive material. Given the complexity of the case the Police Ombudsman cannot give a timescale for completion at this stage.

            4) Shanaghan case: The HET case review is progressing. A positive meeting between the HET and members of the Shanaghan family took place on 9/06/2009. Representatives from the Pat Finucane Centre and the Committee on the Administration of Justice (CAJ) also attended. The Review Summary Report is currently being prepared and HET representatives are planning to meet with colleagues in the OPONI to discuss respective reporting times to the next of kin. Furthermore, the OPONI investigation is progressing well. The Shanaghan family and their CAJ representatives are in contact with the Ombudsman's office. OPONI intends to complete a draft report on the case in the coming months. 

• Information is awaited on progress in these investigations. It should be recalled that in its Interim Resolution CM/ResDH(2009)44 the Committee strongly urged the United Kingdom authorities to take all necessary measures with a view to bringing to an end, without further delay, the ongoing investigations while bearing in mind the findings of the Court in these cases. 

General measures: Regarding the Police Ombudsman's report of the five-yearly review of her powers and the response of the authorities to its content, the United Kingdom authorities reiterated that the Government's 12-week consultation on the Police Ombudsman's 5-Year Review concluded on 5/03/2009. The government continue to consider the responses.

• Information is awaited on the government's response.

19009/04           McCann, judgment of 13/05/2008, final on 13/08/2008

This case concerns a 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 to another property, leaving the property vacant. Later that year, the applicant moved back into the property. 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 formalise her decision to terminate the tenancy, 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 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, following the service of the notice to quit, 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 lawful 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.

• Information was provided by the United Kingdom authorities on 14/09/2009 and is currently being assessed.

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. The United Kingdom authorities have stated that they will take no further steps regarding the implementation of the McCann judgment, pending the judgment of the European Court in Kay and others.

• The Secretariat will assess the general measures required in the present case following the Court’s judgement in the Kay and others case.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of the assessment of the information provided on the individual measures.

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, entitled the ‘Bournewood Consultation’, with a view to bringing forward proposals for appropriate safeguards. The preferred approach in the document was that of “preventive care”, involving a new system of admission/detention procedures for persons who have to be deprived of their liberty so that care and treatment can be provided in their best interests. Under such a system, the power to deprive a person of liberty would be exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. It would incorporate guarantees such as requirements to specify the reason for deprivation of liberty, limits on the length of time, involvement of relatives, carers and advocates, provision for regular reviews and access to court for review of the lawfulness of detention

- England and Wales: The Mental Health Act 2007 was adopted by Parliament on 04/07/2007 and received Royal Assent on 19/07/2007. The provisions relevant to this case are the Deprivation of Liberty Safeguards (DOLS) set out in Section 50 and Schedules 7, 8 and 9 to the Mental Health Act 2007. These provisions inserted the DOLS into the Metal Capacity Act 2005, and came into force on 01/04/2009 (SI 1009/139). A DOLS code of practice was published on 28/08/2008, to supplement the main Mental Capacity Act 2005 Code of Practice.

- Scotland: The Scottish Executive has stated that no amendment was required to the Adults with Incapacity (Scotland) Act 2000. The Scottish Executive amended the Social Work (Scotland) Act 1968 in order to clarify the law on provision of community care services to adults with incapacity, through the Adult Support and Protection (Scotland) Act, which received Royal Assent on 21/03/2007. Section 64, which amends section 13 of the 1968 Act, came into force on 22/03/2007.

• Assessment: in light the above, no further measures appear necessary for England, Scotland and Wales.

- Northern Ireland: In October 2002, the Northern Ireland Department of Health, Social Services and Public Safety (DHSSPS(NI)), initiated a review of policy and service provision relating to mental health and learning disability, and of the Mental Health (Northern Ireland) Order 1986.  The review, entitled the Bamford review of mental health and learning disability (Northern Ireland), produced 10 reports between 2005 and 2007.  The report entitled A comprehensive legislative framework provides that the proposed legislative framework makes provisions for the legal protection of those compliant persons with impaired decision-making capacity (“Bournewood” situations) (§ 6.7, see also § 6.24).  The Northern Ireland government produced a response to the Bamford Report, entitled Delivering the Bamford vision (June 2008).  Consultation on the government’s response closed on 03/10/2008.

Drawing on the Bamford report A comprehensive legislative framework and the consultation responses to Delivering the Bamford vision, the DHSSPS(NI) issued for consultation a policy document A legislative framework for mental capacity and mental health legislation in Northern Ireland on 02/01/2009.  The policy document stated that the DHSSPS(NI) will take into account the European Court’s judgment in H.L. to ensure that additional safeguards are in place regarding the deprivation of liberty of an individual who lacks capacity. The consultation of this policy document closed on 31/03/2009.  Following consideration of the responses to the policy consultation document, the DHSSPS(NI) will prepare a single piece of legislation incorporating mental capacity and mental health legislation. The Northern Ireland authorities aim to put draft legislation before the Northern Ireland Assembly in 2011. The earliest legislative reform could be enacted is 2013. At present the common-law doctrine of necessity still applies in Northern Ireland.

            2) Guidance:

- England and Wales: On 10/12/2005, the Department of Health issued advice to local authorities and those responsible for the provision of health care in England and Wales, setting out steps that should be taken in the interim to avoid further breaches of the Convention. The Department of Health continues to provide advice and guidance to support the implementation process. This information can be found on the Department of Health webpage: http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm.

- Scotland: On 30/03/2007, the Scottish Executive issued the document: Guidance for Local Authorities: Provision of Community Care Services to Adults with Incapacity.

- Northern Ireland: The DHSSPS(NI) intends to issue interim guidance in early 2010 which will advise Health Trusts of the implications of the H.L. judgment and actions which should be taken pending the introduction of legislative safeguards.

            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 awaited on the content and progress of the draft legislation in Northern Ireland incorporating mental capacity and mental health. It is noted that the process for such legislative change is underway however, the earliest any changes could be adopted would be in 2013. Information is also awaited with respect to the interim guidance which the DHSSPS(NI) intends to issue.

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 amend certain “nearest relative” provisions in the Mental Health Act 1983. In particular, section 24 enables patients to apply to a court to discharge or vary an order appointing a person as “nearest relative”. The court must be of the opinion that the person appointed is a “suitable person”.  Sections 23 to 25 came into force on 03/11/2008 (SI 2008/1900) and section 26 came into force on 01/12/2007 (SI 2007/2798).

            - 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 measures appear 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”.

In October 2002, the Northern Ireland Department of Health, Social Services and Public Safety (DHSSPS(NI)), initiated a review of policy and service provision relating to mental health and learning disability and of the Mental Health (Northern Ireland) Order 1986.  The review, entitled the Bamford review of mental health and learning disability (Northern Ireland), produced 10 reports between 2005 and 2007.  The report entitled A comprehensive legislative framework states that the proposed legislative framework should include the introduction of a “nominated person” to replace the “nearest relative” (§ 6.6), and that a person should be capable of refusing the involvement of a previous carer, and that in such situations, the appointment of another “nominated person” should be facilitated (§ 6.35).

The Northern Ireland government’s response to the Bamford Report, entitled Delivering the Bamford vision (June 2008), acknowledged the need to amend provisions relating to the “nearest relative” contained in the Mental Health (Northern Ireland) Order 1986 (page 26).  Consultation on the government’s response closed on 03/10/2008.

Drawing on the Bamford report A comprehensive legislative framework and the consultation responses to Delivering the Bamford vision’, the DHSSPS(NI) issued for consultation on 02/01/2009 a policy document entitled A legislative framework for mental capacity and mental health legislation in Northern Ireland.  The policy document proposed to replace role of “nearest relative” with that of a nominated person, chosen by the patient (“service user”) when he or she has capacity to do so.  The consultation closed on 31/03/2009.  Following consideration of the responses to the policy consultation document, the DHSSPS(NI) will prepare a single piece of legislation incorporating mental capacity and mental health legislation. The Northern Ireland authorities aim to put draft legislation before the Northern Ireland Assembly in 2011. The earliest legislative reform could be enacted is 2013.

The United Kingdom authorities recognise the delay in taking measures for Northern Ireland. By way of interim measures, the DHSSPS(NI) intends to amend the ‘nearest relative’ provisions of the Mental Health (Northern Ireland) Order 1986 to: (i) add the “patient” to the list of persons with a right to apply for displacement of their nearest relative (Article 36 § 2); and (ii) add a new ground that the relative is “not suitable” to the existing grounds on which an application to displace the existing nearest relative and appoint an acting nearest relative can be made (Article 36, § 3).  The amendments are expected to be enacted by Spring 2011.

•Information is awaited on the content and progress of the draft legislation in Northern Ireland incorporating mental capacity and mental health. It is noted that the process for such legislative change is under way however, the earliest any changes could be adopted would be in 2013, some 13 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. 

• Information is also awaited with respect to the progress of the proposed amendments to the “nearest relative” provisions of the Mental Health (Northern Ireland) Order 1986.

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 and 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). As regards the existence or not of any consensus among contracting states, the Court noted that “it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote”. The Court concluded that such a general automatic and indiscriminate restriction on a vitally important right had to be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1 (§82).

Individual measures: The applicant was sentenced in 1980 to a term of discretionary life imprisonment. His tariff (that part of the sentence relating to retribution and deterrence) expired in 1994. He was release on licence in 2004. In the event of being recalled to prison, the applicant’s eligibility to vote will depend on the general measures adopted (see § 72 of the judgment).

General measures: At the time of the judgment, there were around 48 000 convicted and detained prisoners in England and Wales. According to the United Kingdom authorities, in February 2009 there were 63 600 serving prisoners in England and Wales. In Scotland, the projected prison population for 2009-2010 is 8000 (see Scottish Government Statistics Publication Notice <http://www.scotland.gov.uk/Publications/2008/11/21110618/1>).

In accordance with the relevant legislation, the next United Kingdom general election must be held at the latest on 03/06/2010. Elections are also due in 2011 to the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly.

1) The action plan: On 07/04/2006, the United Kingdom authorities presented an action plan for the execution of the judgment. The authorities undertook to conduct a two-stage consultation process, with a view to introducing before Parliament the necessary legislative reform in October 2007. A revised action plan was submitted on 20/12/2006. Its revised time-table anticipated the introduction of draft legislation by May 2008.

2) 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 was opposed to such a proposal. Specific proposals were presented concerning prisoners convicted of election offences and certain categories of persons detained in mental hospitals. The first stage consultation ended on 07/03/2007.

3) Second-stage consultation: The second-stage consultation paper was published on 08/04/2009 (available at http://www.justice.gov.uk/consultations/prisoners-voting-rights.htm). It summarises the responses to the first-stage consultation and consults on proposals for the limited enfranchisement of prisoners. The majority of responses to the first-stage consultation favoured either full enfranchisement of prisoners (48% of respondents), or a continued policy of total disenfranchisement (25%). Only four out of eighty-eight responses favoured the proposal that enfranchisement should be determined by reference to sentence length. The government reached the conclusion that to implement the judgment, a limited enfranchisement of convicted prisoners in custody should take place, with eligibility determined on sentence length. Attaching entitlement to vote to sentence length was considered to benefit from establishing a clear relationship between the seriousness of the offence and suspension of the right to vote.

The government proposed four options for enfranchisement based on sentence lengths of one to four years, including one option which would involve an element of judicial discretion in deciding whether those serving between two and four years’ imprisonment should be enfranchised. The proposals of the government would have the following effect: enfranchisement of all prisoners serving less than one year would enfranchise 11 % of the prison population; enfranchisement of all prisoners serving less than two years would enfranchise 22 %; and enfranchisement of all prisoners serving less than four years would enfranchise 45 % (these figures are approximate as further work is required to ascertain the numbers held under the various sentence lengths in Northern Ireland and Scotland). The consultation paper indicated that the government remains inclined towards setting the threshold toward the lower end of these options. The second-stage consultation period ended on 29/09/2009.

The United Kingdom authorities now intend to undertake a detailed analysis of the responses received, and determine the government’s approach to implementation of the judgment.

• Information is required on a regular basis concerning the United Kingdom authorities’ follow-up to the second-stage consultation, and the progress of draft legislation.

4) Declaration of incompatibility: On 24/01/2007, the Registration Appeal Court, part of the Court of Session (the highest civil court in Scotland), held that following the judgment of the European Court, Section 3§1 of the Representation of the People Act 1983 was incompatible with the 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 Outer House of the Court of Session was asked to make a further 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 also Traynor & Anor, Re Judicial Review [2007] ScotCS CSOH 78 (20 April 2007)). The Court of Session held that the matter of the incompatibility had been determined in Smith and a further declarator (a declaration in Scots law) was unnecessary and inappropriate. Similarly the domestic courts have dismissed judicial review applications from prisoners in respect of the Northern Ireland Assembly elections in 2007 (Toner & Walsh [2007] NIQB 18) and the European Parliamentary Elections in June 2009 (R (Chester) v Secretary of State for Justice & Wakefield DC [2009] EWHC 2923 (Admin)).

5) Opinion of the Joint Committee of Human Rights: In its annual report for 2007 (Monitoring the Government's Response to Human Rights Judgments: Annual Report 2007) the United Kingdom Parliament's Joint Committee of Human Rights (JCHR) asserted that the delay in adopting measures to implement the judgment was “disproportionate”, and highlighted that the continued failure to remove the blanket ban, enfranchising at least part of the prison population, is “clearly unlawful” (§78 of the report). In its report for 2008, the JCHR criticised the substantial delay in implementing this judgment and observed that there is now a significant risk that the next general election will take place in a way that fails to comply with the Convention (§63 of the report). 

In its scrutiny of the Political Parties and Elections Bill (report published on 01/02/2009), the JCHR drew attention to a comment made by the Secretary of State for Justice on 20/01/2009 indicating that the lack of parliamentary and political support for reform had contributed to the government’s approach. 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”. 

6) Comment from civil society:

a) Rule 9 submissions to the Committee of Ministers following the first-stage consultation:

The AIRE (Advice on Individual Rights in Europe) Centre noted on 03/04/2007 that despite having intimated that it would embark upon a “full public consultation” regarding implementation of the Court’s judgment, the consultation paper unequivocally stated that the government remained “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. The government specified that the judgment does not require total enfranchisement of prisoners and, as it was opposed to such an option, omitted to include this as a proposal in the consultation paper. The Prison Reform Trust, in a submission of 30/03/09, stated that the current position is unacceptable and to date, the United Kingdom has done nothing to execute the judgment. The problem of future violations is underlined in light of the upcoming general election in June 2010. In response, the United Kingdom made reference to the Second Stage Consultation.

b) Rule 9 submissions to the Committee of Ministers following the second-stage consultation: Rule 9 submissions were received from the applicant, the applicant’s legal representative, the Howard League for Penal Reform, Unlock, Penal Reform International, the National Council for Civil Liberties and 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.

In a combined response to the submissions received, the Ministry of Justice reiterated its position, as set out in the second-stage consultation paper. The government “remains of the view that – in light of the responses to the first policy consultation and the serious and difficult issues at stake - it would not be appropriate to enfranchise all prisoners, without taking account of the nature and seriousness of the offence they have committed”. Removal of the right to vote goes to the essence of the offender’s relationship with democratic society and reinstatement of the right is aimed at enhancing civic responsibility and respect for the rule of law. The government considers four years’ imprisonment to be a relevant threshold in determining whether the circumstances surrounding the offence committed are sufficiently serious to warrant removal of the right to vote. The Consultation paper explains that although the Criminal Justice Act 2003 formally abolished 4 years’ imprisonment as being a distinction in sentencing policy terms between “less serious” and “serious” offences, in lay terms it may still be argued that it is still relevant as a dividing line, i.e. where a court has determined that the offence warrants a custodial term of 4 years, this will signify that the circumstances of the offence are sufficiently serious to warrant that length of custodial term.

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.

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 damage sustained by the applicant on account of being denied the opportunity to obtain a ruling on the merits of his claim that the eviction was unreasonable or unjustified.

• Assessment: under the circumstances, no further additional measure appears necessary.

General measures:

            1) Legislation: The Housing and Regeneration Act 2008 received Royal Assent on 22/07/2008. Section 318 of the 2008 Act provides an amendment to the definition of “protected site” in the Mobile Homes Act 1983, extending the provisions and protections in the 1983 Act to Gypsy and Traveller sites. Section 318 of the 2008 Act will be brought into force via secondary legislation: with respect to England such an order will be made by the Secretary of State, while in Wales a separate order will need to be made by the Welsh Ministers. 

On 25/09/2008 the United Kingdom authorities published a consultation paper, Implementing the Mobile Homes Act 1983 on local authority Gypsy and Traveller sites. The consultation paper relates to proposals for consequential amendments to the 1983 Act in respect of local authority Gypsy and Traveller sites, and transitional provisions. The consultation was completed on 19/12/2008.

On 07/04/2009 the United Kingdom authorities confirmed that following the consultation, they are in the process of drafting the legislation which will bring section 318 of the 2008 Act into force and make the necessary changes to the 1983 Act.

            2) Interim guidance: On 17/05/2007 the government published for consultation draft guidance on management of gypsy and traveller sites.  The draft recommends that local authorities avoid asserting a right to summary possession, and encourages them to provide additional protection to licensees.  On 16/07/2009, following the consultation period which closed on 22/08/2007, the government published Gypsy and Traveller Site Management: Good Practice Guide.  The guidance recommends that until the 1983 Act is implemented with respect to local authority sites, authorities may wish to include terms in licences providing additional protection from eviction, or use of internal appeals procedures.

            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 2008 in England and Wales.