Ministers’ Deputies

Annotated Agenda

CM/Del/OJ/DH(2007)1013 Section 4.2  PUBLIC   9 January 2008

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1013th meeting (DH), 3-5 December 2007

- Annotated Agenda[1]

- Decisions

Section 4.2

Public information version

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

(See Addendum 4 for part or all these cases)

Action

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

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

- 2 cases against Albania

7352/03            Beshiri and others, judgment of 22/08/2006, final on 12/02/2007[2]

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

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

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

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

General measures:

1) Violation of Article 6§1: this case presents similarities to that of Qufaj (judgment of 18/11/2004, 1007th meeting, October 2007, 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 was pending before the Parliament at the date when this judgment was delivered (§ 29).

• Information provided by the Albanian authorities (letters of 08/06/2007 and 25/10/2007):

a) Publication and dissemination of the judgment: The European Court’s judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. The Government Agent also disseminated it to the relevant domestic judicial, legislative and executive authorities.

• Written confirmation of the dissemination of the judgment is awaited.

b) Legislative amendments: The government is assessing the amendments to the Restitution and Compensation Act adopted during the last 12 months and will prepare a document in this respect this by the end of 2007.

c) Other measures aimed at improving and accelerating the process of restitution of or compensation for property: The Government Agent is co-ordinating 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 will 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.

• Information is awaited:

- on the follow-up given to the draft amendment to the Property Restitution and Compensation Act,

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

- on the wide dissemination of the European Court's judgment to the competent courts and authorities,

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

35853/04          Bajrami, judgment of 12/12/2006, final on 12/03/2007[3]

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

On 31/03/2006 the Vlora Court of Appeal repealed the custody judgment of 4/02/2004 and reopened the custody proceedings. They were still pending when the European Court delivered its judgment.

• Information provided by the Albanian authorities (letters of 08/06/2007 and 4/10/2007):The applicant died two weeks before the European Court’s judgment was delivered. On 29/06/2007 the authorities lodged a request for the revision, under Rule 80 of the Rules of the European, Court concerning the just satisfaction. It was granted on 18/09/2007 and the proceedings for revision are currently pending before the European Court.

• 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 (letter of 08/06/2007): The European Court's judgment was translated into Albanian and published in the Official Gazette, No. Extra July 2007. The authorities of the Bailiff’s Office have been requested to treat with special attention cases concerning enforcement of court decisions on child custody.

• Information is awaited on whether Albania envisages implementing these international instruments or on any other measure envisaged or adopted to provide an alternative legal framework affording effective protection of parents' right to reunion with their children. Moreover, a written confirmation of the dissemination of the European Court’s judgment is awaited.

- 6 cases against Austria

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

The case concerns a violation of the right to respect for family life of the applicants (mother and son, both Serbian nationals) in that the new-born son was placed with foster parents 8 days after his birth in June 2000 and the Juvenile Court transferred custody to the Youth Welfare Office in December 2000 without considering alternative measures allowing the applicants to stay together such as placing them in a mother‑child centre (violation of Article 8). The Youth Welfare Office based its decision to demand a transfer of custody on the inadequate financial means of the first applicant, her unsuitable accommodation and her unclear residence status, the decision being endorsed by the Juvenile Court in December 2000. In this regard the case differs from Buchberger (Section 6.2) in which the authorities had had more indications of an actual danger for the well-being of the children.

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

Individual measures: According to information provided in the European Court's judgment, the first applicant has access rights to see the second applicant for 2 hours per month, on their birthdays and Christmas since April 2005 due to an agreement reached. During the proceedings before the European Court, the first applicant had so far not filed a request to re-transfer custody of the second applicant to her, but considered the regular visits serve to prepare a re-transfer (§§ 37, 38). According to information provided by the respondent state in March 2007 and confirmed by the first applicant's lawyer, the first applicant had so far not requested extended visitation rights nor re-transfer of custody. Furthermore, the first applicant's lawyer stated that the 2005 agreement on visitation rights is still in place and the mother is seeing her son once a month.

In April 2007, the Austrian authorities provided detailed information on the way the visits are conducted with the help of the social service, ensuring that the relationship between the applicant and her son is continued without putting the child in a situation of conflict. The foster-parents are not present during the visits. Although the applicant does not have a residence permit and has been living illegally in Austria since 2005, the authorities do not plan to expel her but are currently examining ways to grant her a residence permit.

• Information is awaited on the possibility of the first applicant to demand an extension of her visitation rights and a re-transfer of custody under Austrian law.

General measures:

1) Equality of arms: In 2002, in the context of the Buchberger case above-mentioned, the respondent state provided several decisions of the Supreme Court to illustrate its constant jurisprudence according to which the principle of equality of arms is fully implemented, even in proceedings conducted on a non-adversarial basis.

            2) Lack of a public hearing: The reformed Austrian Non-Contentious Proceedings Act gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion. Judgments of the European Court against Austria in respect of cases under the code of civil procedure are automatically transmitted to the President of the Supreme Court and the Presidents of the 4 Higher Regional Courts with the request to disseminate it to all subordinate judicial authorities as appropriate as well as to inform the authorities directly involved in the violation. A summary of the judgments and decisions delivered by the European Court and concerning Austria is regularly prepared by the Federal Chancellery and sent out widely to relevant Austrian authorities as well as Parliament and courts.

Furthermore, judgments of the European Court are accessible in a summary version to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS) which provides a link to the Hudoc-system of the European Court. Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the Court's judgments in English.

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

23960/02          Zeman, judgment of 29/06/2006, final on 29/09/2006

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: It seems to be unlikely that the applicant can demand reopening of the domestic administrative proceedings. The question whether the applicant will receive monetary compensation has not yet been decided as the European Court reserved the question of the application of Article 41.

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

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

                       - Case concerning the lack of oral hearing

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

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

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

Individual measures:

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

General measures: According to Article 40§1 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), which governs hearings before Appeals Commissions, “oral hearings shall be held in the presence of all known parties and the necessary witness and experts”.

The European Court noted that it was a consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it was commonly understood that the principle of publicity did not extend to administrative proceedings.

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

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

- Cases of length of certain judicial proceedings concerning the determination of criminal charges before administrative courts

56483/00          Jancikova, judgment of 07/04/2005, final on 07/07/2005

32407/04          Donner, judgment of 22/02/2007, final on 22/05/2007

37301/03          Hauser-Sporn, judgment of 07/12/2006, final on 23/05/2007

These cases concern the excessive length of certain proceedings in determination of a criminal charge before administrative authorities and courts as well as the lack of effective remedy.

In the Jancikova case, the proceedings began in February 1993 and ended in September 1999 (more than six years), during which period the authorities had been inactive for some two years and the Administrative Court for one year and almost four months.

Furthermore, the applicant had no effective remedy against the delays. In this context, Section 51§7 of the Code of Administrative Offences which guarantees a decision on appeals within 15 months, is not applicable in cases in which more than one party is entitled to appeal. Moreover Section 31§3 of the Code of Administrative Offences did not ensure written notification of the Independent Administrative Panel's decision within three years: under Austrian law only the public pronouncement has to be within that time-limit.

In the Hauser-Sporn case the proceedings began in March 1995 in the district Court. The applicant appealed to the Constitutional Court and ultimately to the Administrative Court, which refused to deal with his complaint. That decision was served on the applicant’s counsel on 6/11/2003. The case has been pending before the two highest courts for more than five years.

In the Donner case the proceedings began in autumn 1989 with an investigation of the Salzburg Tax office, followed by criminal investigations of the Public Prosecution Office. The case was altogether more than six years before the investigating administrative authorities. Furthermore, while pending before the court the case was not dealt with from the end of 2000 until 2002. Final judgement was given in 2004. The applicant could have made use of section 91 of the Austrian Courts Act during the proceedings before the Regional Court, which could be regarded as an effective remedy. However, the Court’s finding of a violation of Article 6 had in particular regard to the substantial delays occurred before the investigating authorities. A hierarchical complaint existing under Article 37 of the Public Prosecution Act, was not considered as an effective remedy by the Court.

Individual measures: None (proceedings closed in all three cases).

• Assessment: no further individual measure is required.

General measures:

            1) Excessive length of proceedings before the Administrative Court: Legislative measures were adopted in 2002 (see case of G.S., judgment of 21/12/1999, Resolution ResDH(2004)77) and further general measures were adopted in the cases of Alge and Schluga (Resolution CM/ResDH (2007)110).

            2) Violation of Article 13

• Written information is awaited on existing or envisaged measures to safeguard individuals effectively against lengthy criminal proceedings before administrative courts.

As with all judgments of the European Court against Austria concerning a violation at the level of the Administrative Court, the judgment in the Jancikova case was automatically transmitted to the Presidency of that Court. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice.

• Information is also awaited on publication of the Jancikova judgment.

- 1 case against Azerbaijan

34445/04          Mammadov (Jalaloglu), judgment of 11/01/2007, final on 11/04/2007[4]

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

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

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

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

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

•Assessment: Detailed information on the “relevant remedial legislation” mentioned in the information transmitted by the Azerbaijani authorities is awaited; a copy of the decision taken by the Supreme Court of the Republic of Azerbaijan is also awaited

General measures

• The judgment should be translated into Azeri, published and sent out to police and prison authorities and to the civil and criminal courts.

• Information is also required on general measures taken or envisaged to ensure first respect of the prohibition of torture, inhuman or degrading treatment and secondly proper investigations in case of allegations of ill-treatment. In this respect the Azerbaijani authorities might refer to the experience acquired by member states in executing judgments under the Committee of Ministers' supervision (see Interim Resolutions DH(99)434, ResDH(2002)98 et ResDH(2005)43 concerning Turkey, ResDH(2005)20 concerning the McKerr group of cases against the United Kingdom, etc., as well as in the light of the standards of the Committee for the Prevention of Torture.

• Information provided by the Azerbaijani authorities (12/10/2007): “The European Court judgment has been translated and disseminated to police, prosecutors’ offices, judicial bodies and courts. Furthermore a range of seminars on the standards of the Convention on Human Rights and the European Committee for the Prevention of Torture as well as on the case law of the European Court were organised for the employees of the above mentioned agencies.”

•Assessment: Detailed information on the means of dissemination of the European Court’s judgment and on the beneficiaries of this dissemination is awaited; details on the content, dates and participants at the seminars mentioned in this information is also awaited.

- 14 cases against Belgium

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

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

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

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

Individual Measures:

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

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

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

General measures:

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

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

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

- represent a danger to persons;

- represent a threat to privacy; or

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

The Bill enacting this reform was passed by the Senate on 1/12/2005 and passed to the House of Representatives (letter of 07/02/2006).

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

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

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

• Additional information is awaited concerning publication and dissemination to the Cour de cassation of the European Court's judgment.

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

This case concerns an infringement of the applicants’ right to a fair trial before the Cour de cassation in that their complementary observations were declared inadmissible because they were handed in late. 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 whereas no comparable deadline applied to defendants, breached the principle of equality of arms (violation of Article 6§1).

Individual measures: The applicants have submitted no request to the Committee of Ministers. 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.

General measures: The judgment of the European Court has been published on the internet site of the Ministry of Justice and communicated to the Cour de cassation. As far as further general measures are concerned, the Belgian delegation indicated, by letter of 14/04/2003, that the attorney general of the Cour de cassation was studying 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 currently being discussed. At the 966th meeting (June 2006) the Belgian delegation stated that a bill amending the Code of Criminal Procedure had been adopted by the Senate and was being discussed by the House of Representatives. It appears from information received in May 2007 that this reform is “postponed”.

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

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”. By letter of 07/02/2006, the Belgian authorities informed the Secretariat that, in their opinion, no change of the law was necessary as, since the European Court's judgment was delivered, the bodies examining requests for compensation for wrongful pre-trial detention have not examined the 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.

• Information is awaited on whether the bodies examining requests for compensation for wrongful pre-trial detention have delivered other decisions reaching conclusions similar to those in the decisions mentioned above and on whether other general measures would be necessary in this case. The Secretariat would particularly like to know whether the Belgian authorities could, in the interest of legal certainty, consider modifying the law to remove the provision which was at the origin of the violation.

                       - Cases of length of judicial proceedings

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

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

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

18211/03          Lenardon, judgment of 26/10/2006, final on 26/01/2007[5]

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[6]

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

These cases concern the excessive length of civil proceedings (De Landsheer, Reyntiens and Marien), as well as of criminal proceedings in which the applicant were either accused or civil parties (the four other cases) (violations of Article 6§1). Most of the proceedings at issue took place before first-instance courts under the jurisdiction of the Brussels Court of Appeal. Proceedings began between 1987 and 1997 and were all closed when the European Court delivered its judgments, except in the Leroy case.

Individual measures: in the Leroy case: acceleration of the criminal proceedings, if still pending; information in this respect is awaited. In the other cases: no measure necessary (proceedings closed).

General measures:

            1) Measures to avoid excessive length of judicial proceedings

- As regards the courts under the jurisdiction of the Brussels Court of Appeal: in both criminal and civil matters, it appears from these judgments that the excessive length of proceedings before the first-instance courts under the jurisdiction of the Brussels Court of Appeal is in particular the result of the difficulties of recruiting magistrates, a problem related to the conditions of use of languages in the judicial field. The Belgian authorities have adopted measures to rectify this (see the information provided by the Belgian authorities to the Venice Commission, reflected in document CDL(2006)026). In particular, laws of 16/07/2002 and 18/07/2002 modified the provisions regulating the conditions of use of languages in the judicial field, in order to simplify the requirements of bilingualism and give more means to judge cases in the French language, in the majority before the Brussels courts.

Furthermore, it is recalled that the Committee of Ministers has already been informed of the measures taken by the Belgian authorities to avoid excessive length of proceedings before this very Court. These measures were examined in the context of, inter alia, the Oval S.P.R.L. case (judgment of 15/11/2002, 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).

Bilateral contacts are under way to assess the present situation before first-instance courts under the jurisdiction of the Brussels Court of Appeal (i.e. is the structural problem solved, as it has been before the Court of Appeal?).

- As regards the situation at national level: In criminal justice, according to the information provided by the Belgian authorities to the Venice Commission (document CDL(2006)026), the length of certain proceedings is a real problem in Belgium, but is not a general problem. According to this document, the problem concerns both the preliminary stage of the criminal proceedings (inquiry by the office of the public prosecutor and pre-trial investigation carried out by the investigating magistrate) (in this respect see the case of Stratégies et Communications et Dumoulin, Section 6.2) and the proceedings before the courts themselves.

In civil justice, according to the same document, except for the case of the Brussels courts (in this respect, see the situation described above), there is no structural problem.

Certain measures taken at national level (as opposed to those concerning Brussels specifically) to avoid excessive length of judicial proceedings have already been presented in the context of 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.

The Law of 21/04/2007 amending the Judicial Code with a view to reducing the judicial backlog has been sent to the Secretariat. It contains several provisions tightening different phases of the proceedings into time-limits decided by the judge, most often at the request of the parties. Moreover it contains provisions aiming at monitoring the respect of time-limits for deliberations and to sanction parties who use the proceedings with obviously delaying aims. This Law is currently being examined in details.

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

Even though the Court found no violation on that point in these judgments, the examination of this question is in line with the spirit of Recommendation Rec(2004)6 of the Committee of Ministers (improvement of domestic remedies) and with the practice which developed within the Committee.

- In civil justice, according to the information provided by the Belgian authorities to the Venice Commission (document CDL(2006)026), there is no specific remedy whereby the acceleration of civil proceedings may be requested. On the other hand, certain judicial decisions have admitted that the state may be liable on account of the excessive length of civil proceedings, and that the damage subsequently suffered is to be compensated.

- In criminal justice, according to the information provided in the same 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” (see inter alia the judgment in Stratégies et Communications et Dumoulin of 24/06/2002, §35).

The question of the existence of a remedy in respect of the excessive length of a criminal pre-trial investigation has been examined in the context of the case of Stratégies et Communications et Dumoulin (Section 6.2).

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 (see above); these provisions are currently being examined in details.

                       - Cases of length of proceedings concerning civil rights and obligations before the Conseil d'Etat[7]

37330/02          Defalque, judgment of 20/04/2006, final on 13/09/2006[8]

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

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

- 1 case against Bosnia and Herzegovina

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

The case concerns the violation of the applicant's right of access to a court due to the administration's failure to enforce final court decisions.

The judicial decision rendered in 1998 in the applicant's favour ordered her bank 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 was not enforced (violation 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” foreign-currency savings, the latest being Section 27 of the 2006 Old Foreign-Currency Savings Act ordering that final judicial decisions concerning old foreign-currency 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 and in 2006 Bosnia and Herzegovina took over the debt arising from “old savings” from its constituent units, including that of the Republika Srpska.

The European Court also found that the impossibility of obtaining the execution of the final judgment in the applicant's favour constitutes an interference with the right to the peaceful enjoyment of possessions (violation 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 judgment).

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

General measures:

1) Background information:

About 85 cases are currently pending before the Court (submitted on behalf of more than 3 750 applicants) concerning “old savings”. In 10 of these cases applicants have obtained a final and enforceable judgment ordering the release of their savings (see §§43 of the judgment). The Constitutional Court of Bosnia and Herzegovina and its Human Rights Commission have determined more than 1000 such cases and enforceable judgments have been made in only five of these (see §43 of the judgment).

However, the Bosnian authorities on 10/07/2007 advised the Committee that no accurate and complete data are available on judgments rendered by Bosnian courts against commercial banks in which “old savings” had been deposited before 1992. On the other hand a major NGO representing 30,000 old foreign currency savers stated that approximately 52 million EUR were due under the domestic court judgments. The authorities informed the Committee that according to the data of 31/12/2006, the provisional figures for the Federation of Bosnia and Herzegovina are as follows: there are 139 binding domestic court decisions with a total of 102 million “Convertible Markas” (KM) of principal debt. Likewise, in Republika Srpska there are about 70 binding court decisions representing approximately 2,5 million KM of principal debt. As of 01/03/2007, there were in all 83 domestic court proceedings pending against commercial banks related to the “old savings accounts”.

2) Measures adopted and under way:

-           The Old Foreign-Currency Savings Act 2006 provided in Article 27 that final judicial decisions concerning old foreign-currency savings shall be subject to verification by a government authority (§27 of the judgment). The authorities submitted information to the effect that this provision has been repealed by Parliament, as published in the Official Gazette of Bosnia and Herzegovina, No. 72 of 26/09/2007. 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 by the Ministry of Finance. The adoption of bylaws detailing the procedure in this respect is expected.

• Detailed information is awaited on the recording regulations and in particular on measures taken to introduce a clear obligation of the State to pay debt established by court judgments.

-           The authorities further informed the Committee that the Enforcement Act of the Republika Srpska makes it impossible to make enforcement on the state property or state budgetary funds. However, item 613900 of the 2007 Budget of the Republika Srpska relates to the enforcement of court decisions, corresponding to an appropriation totalling to 3.7 million KM.

• Detailed information is awaited on budgetary appropriations for payment of debts established by domestic court judgments on account of old savings denominated in foreign currency. Information is also awaited on the adequacy of budgetary appropriations for 2008 for this purpose.

-           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 judgment).

• Information is awaited on the application in practice of this provision of the Criminal Code.

The authorities advised the Committee of Ministers that on 20/09/2007 the government set up a task force comprising of 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 is expected by December 2007. 

• Information is urgently awaited on this action plan which is expected to include effective measures to prevent of similar violations, including the recording of all debts under domestic judgments related to old savings denominated in foreign currency.

-           Finally, the European Court's judgment was published in the Official Gazette, No. 20/07.

• Information is awaited on details of publication as well on the wide dissemination of the Court's judgment to competent judicial and government authorities involved in this case.

- 73 cases against Bulgaria

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

61259/00          Musa and others, judgment of 11/01/2007, final on 09/07/2007[9]

The first case concerns the deportation of Mr Al-Nashif, a stateless person, to Syria on in 1999 and the second case – to the withdrawal of M. Musa’s residence permit and imposition of an obligation to leave the territory imposed in 2000. The European Court considered that there had been a violation of the applicants' right to family life, as the applicable legal provisions did not give sufficient guarantees against arbitrariness, the first applicant having been deported on the basis of considerations of national security exclusively within the discretionary power of the Ministry of the Interior (violations of Article 8). In the case of Musa and other the Court specified that for the above reasons the measures imposed on the basis of these legal provisions did not satisfy the requirement of legality. The Court further found that the applicants had not had access to an independent supervision on the measures imposed on them, due to the fact that at the relevant time such measures based on the grounds of national security were excluded from judicial review (violations of Article 13). The Al-Nashif case finally concerns the fact that the first applicant had, under the applicable law, been given no opportunity to challenge the lawfulness of his detention while awaiting deportation (violation of Article 5§4).

Individual measures:

            1) Case of Al-Nashif: The measures taken against Mr Al-Nashif were of 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 order revoking the residence permit, as well as that ordering the detention and the deportation were quashed by final judgments of the competent courts. The order concerning the ban for Mr Al‑Nashif's re-entry was annulled in 2006 but this decision was quashed by the Supreme Administrative Court on the ground that the first-instance court had wrongly admitted that the possibility of imposing such a measure was not provided in the law in force at the material time.

• Information is expected on measure envisaged to lift the ban for Mr Al-Nashif's re-entry on the Bulgarian territory. Bilateral contacts between the Secretariat and the Delegation are under way on this issue. 

2) Case of Musa: Mr Musa was obliged to leave Bulgaria in 2000, as a result of the measures imposed on him.

• Information is expected on the annulment of the measures taken in his respect.

General measures:

            1) Violations of Articles 8 and 13:  The attention of the Bulgarian authorities was drawn to a number of problems in the legislation and regulations which were the basis of the violations found by the European Court in the present case.

Indeed, Bulgarian law did not provide at the relevant time for judicial review of the lawfulness of aliens' detention in case of their expulsion on the grounds of national security, nor of the decision of expulsion itself when such reasons are evoked (cf. Article 47 of the Aliens Act, in force at the material time).

The Bulgarian authorities have thus been invited to take measures in this respect possibly in the light of the experience of other countries in this matter (e.g. Chahal against the United Kingdom, judgment of 15/11/1996, Resolution ResDH(2001)119).

- 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 have been 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 control 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, which is in contradiction with the Convention requirements in this area. 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.    

            2) Violation of Article 5§4: Clarifications have been requested concerning whether Bulgarian law at present provides for judicial review of the lawfulness of detention in specialised centres in cases of expulsion on the grounds of national security (see 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.

• Bilateral contacts are under way on this issue.    

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

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

The case concerns a violation of the applicant’s freedom of expression due to his being sentenced in 1998 to a fine and to a public reprimand for having insulted a high-ranking official (violation of Article 10). The applicant, who was at that time head of the division in the Ministry of Justice responsible for financial support declared at a working meeting, with regard to a decision entrusting some financial matter to the Deputy Prosecutor-General, that in his opinion the latter was not honest and added that he could prove it. Taking into account the circumstances of the case, the European Court considered that the reaction of the Prosecutor-General who insisted on the applicant’s prosecution ex officio and the ensuing conviction were disproportionate and failed to answer any pressing social need.   

Individual measures: The European Court award just satisfaction including the amount of the fine paid by the applicant. The public reprimand was never enforced because the relevant prescription period expired. Furthermore, the applicant was rehabilitated automatically with the effect of the erasure of the sentence and its consequences (Article 88a of the Criminal Code).

• Confirmation is awaited of the annotation of this rehabilitation in the applicant’s criminal record.

General measures:

• Assessment: as the violation does not appear to reveal any structural problem concerning the protection of the freedom of expression in Bulgaria and having regard to the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, the publication and dissemination of the European Court’s judgment to competent courts appear to be sufficient measures for execution.

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

• Information is expected on its dissemination.

Moreover, it has been noted that following modifications of the Criminal Code introduced in 2000, insult may now only be prosecuted privately (§§30 and 50 of the European Court’s judgment) and imprisonment may not longer be imposed for this kind of offences.

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.

 

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

The case concerns the unfairness of certain proceedings resulting in the compulsory liquidation of the applicant bank in 2005 (violations of Article 6§1). The domestic courts dealing with the case considered themselves to be bound by the National Bank's finding of insolvency, without examining it on its merits. Furthermore, being represented by persons (the special administrators and later the liquidators) dependent on the other party to the proceedings (the National Bank), the applicant bank was unable to properly defend its position and protect its interests.

Finally, the fact that the applicant bank had, under the applicable law, been given no opportunity to challenge the withdrawal of its licence also infringed its right to peaceful enjoyment of its possessions (violation of Article 1 of Protocol No. 1).

Individual measures: The applicant bank has not existed since April 2005. Its entire undertaking was purchased by another bank which contracted to pay certain amounts to the creditors.

Following the judgment of the European Court, three companies, which are shareholders in the Capital Bank (and who represented it before the European Court) initiated several sets of proceedings aimed at quashing the decisions resulting in its liquidation.

They informed the Committee of Ministers of their concerns as regards the refusal of the Supreme Administrative Court and the prosecution authorities to quash these decisions:

- the Supreme Administrative Court refused to quash the decision of the National Bank withdrawing the applicant bank's licence (the decision which triggers liquidation proceedings), on the gound that the claimant, a shareholder, was not directly concerned by this decision and that it had already decided the issue in 2002 (Decisions Nos. 8088/17.07.2006 and 11643/23.11.2006). Furthermore, the Supreme Administrative Court declared inadmissible the shareholders' complaint against the tacit refusal of the National Bank itself to reconsider the withdrawal of the applicant bank's licence, since this decision had been subject to judicial control in 2002 (according to domestic law, tacit refusal by the administration to annul its own decisions may only be appealed before administrative courts if the decision concerned had not been appealed before a court – Decision No. 659/22.01.2007).  

- the Prosecutor General's office refused to request the reopening of the liquidation proceedings, noting that at the time of these proceedings, one of the courts dealing with the case examined the substance of the issue of the applicant bank's insolvency (see §31 of the judgment of the European Court), and that the bank's entire undertaking was purchased by a third party of good faith (decisions of 07/04/2006, 30/05/2006 and 14/07/2006). It should be noted in this respect that Article 231§1, letter “z” of the Code of Civil Procedure provides such a possibility in principle.

- the Supreme Court of Cassation rejected the request for reopening of the liquidation proceedings (decision of 12/04/2007).

The applicants submitted detailed information to complain about the current situation.

• The Secretariat is currently examining the information submitted in order to evaluate the need for further measures. 

General measures:

            1) Violation of Article 6§1 and of Article 1 of Protocol No. 1 (lack of independent review of the withdrawal of the applicant bank's licence): A new law on credit institutions was adopted in July 2006. Unlike the law applicable at the material time (Article 21§5 of the Banks Act), which explicitly excluded from the scope of judicial review a decision of the National Bank revoking a bank's licence on the ground of insolvency, the new legislation provides the possibility of appealing such decisions before the Supreme Administrative Court. The law on credit institutions entered into force on 01/01/2007.

• Assessment: in these circumstances, it appears that no further measure is necessary concerning this issue.

            2) Violation of Article 6§1 (lack of independent representation of the applicant bank during the liquidation proceedings):Following a modification of the Bank Insolvency Act introduced in July 2006, shareholders owning more that 5% of the shares of a bank are entitled to participate in proceedings concerning its liquidation. However, the provision (Article 16§1 of the Bank Insolvency Act) according to which only the special administrators appointed by the National Bank, the prosecutor and the representatives of the National Bank are allowed to appeal against the competent court's decision to initiate liquidation proceedings, remains unchanged.

• Bilateral contacts are under way concerning possible additional measures with regard to this issue.

            3) Publication and dissemination: The judgment of the European Court was published on the website of the Ministry of Justice http://www.mjeli.government.bg.

• Confirmation is awaited of its dissemination to the National Bank and the competent courts.

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: In its judgment on the application of Article 41, the European Court held that the respondent State was to return to the applicants, within three months from the date on which the judgment had become final, the ownership and possession of the land at issue. The Court also held that, failing to such restitution, the respondent State was to pay the applicants, within the same period of three months, 79 200 euros in respect of pecuniary damage. The Court awarded some of the applicants certain amounts in respect of non-pecuniary damage and costs and expenses. 

• Information is awaited on the execution of the judgment on Article 41. The 3-month time-limit set by this judgment will expire on 14/12/2007.

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.

On 12/07/2006, the Secretariat wrote to the Bulgarian authorities inviting them to present, if necessary, a plan of action for the execution of this judgment.

57785/00          Zlínsat, spol. S. r.o., judgment of 15/06/2006, final on 15/09/2006

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 application of Article 41 was reserved by the Court concerning the pecuniary damage, as well as certain costs and expenses.

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.

56891/00          Borisova, judgment of 21/12/2006, final on 21/03/2007[10]

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 about the accusations 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.

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

CM/Inf/DH(2007)33

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

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

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

67353/01          Sirmanov, judgment of 10/05/2007, final on 10/08/2007[11]

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 Bulgarian 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 compulsory execution against state institutions is 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: None. 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 who was detained in the Rahbar-Pagard case died in 2003. The European Court awarded just satisfaction in respect of the non-pecuniary damage the applicants suffered.

General measures:

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

• Information requested: the Secretariat wrote to the Bulgarian authorities in December 2004 with a view to presenting a possible plan of action for the execution of the Angelov judgment. Clarifications were requested in particular concerning 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.

Furthermore, information was requested concerning the introduction into domestic law of an effective remedy against the excessive length of enforcement proceedings against state institutions.

Finally the publication and the dissemination of the judgment of the European Court to the domestic courts drawing their attention in particular to the conclusions in §§ 37-40, have also been requested. 

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 (initial phase letter of 04/04/2005). 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).

• Information provided by the Bulgarian authorities: The draft Code of Civil Procedure submitted to the Bulgarian parliament contained similar formulations of the relevant provisions to those contained in the former version. However, proposals to amend them, related to the execution of judgments ordering the payment of compensation by public institutions, were to be presented anew before the Parliamentary Commission on Judicial Issues.

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 was 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 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.

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. Seminars were also planned for 2007 which were expected to focus on the provisions of the Convention violated by Bulgaria in recent judgments of the European Court.

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.

• Information awaited: on the follow-up to the proposal for legislative reform mentioned above, the time-frame for its examination, as well as on further measures envisaged for the execution of these judgments.

            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 (Section 4.2).

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

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

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

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

The European Court noted with concern that one of the prohibitions was imposed in 2003 on grounds, which had been previously declared contrary to the Convention in the case of Stankov and the United Macedonian Organisation Ilinden against Bulgaria (judgment of 02/10/2001). The European Court also observed that on one occasion the authorities appeared somewhat reluctant to take all appropriate measures to prevent violent acts directed against the participants in Ilinden's rally. The last case also relates to the lack of an effective remedy at the applicants' disposal to complain against the prohibitions of their meetings (violation of Article 13). The European Court noted that the possibility to seek judicial review of such bans before the competent courts in accordance with Article 12§6 of the Meetings and Marches Act could in principle operate effectively. However, it was rendered ineffective in the applicants' case on account of the way it was applied by the competent courts.

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

Individual measures: The Bulgarian authorities informed the Committee that in 2006 only 2 out of 10 requests for organisation of meetings were rejected. One of the refusals concerned a meeting room reserved for another event; the information provided gives no more details concerning the other. The police ensured the security of the participants and the public order at the authorised meetings. However, it should be noted in this respect that two other applications are at present pending before the European Court relating to prohibitions of meetings organised by the applicants, scheduled initially respectively between 2004-2006 and in September 2006. Moreover, the applicants complained before the Committee in April 2007 of the ban by the Governor of a commemorative meeting they organised for 22/04/2007 (see DD(2007)224). During the last examination of these cases (June 2007, 997th meeting) the Committee noted this ban with concern as it  was based on grounds already incriminated by the European Court, but noted in this respect with satisfaction that the meeting in question had nevertheless taken place, in particular following the intervention of the Agent of the Government. The Committee invited the Bulgarian authorities to take all necessary additional measures aimed at guaranteeing effectively the freedom of assembly of UMO Ilinden and the other applicants and to ensure the effectiveness of the domestic remedies in this respect.

In October 2007, the applicants submitted additional information concerning the commemorative meeting planned for 22/04/2007. According to them, in fact the meeting in question did not take place as they claim to have encountered various problems related to the transportation of the participants, the behaviour of the police and the fact that no music, speeches, laying of wreaths or raising of flags had been allowed in practice. The applicants lodged a new application with the European Court with regard to these facts. 

• Information is awaited on the measures envisaged to guarantee the applicants’ freedom of assembly. 

General measures:

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

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

These judgments will also be included in 2007 in the programme of seminars on the Convention and the case-law of the European Court organised by the by the National Institute of Justice (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 3 seminars on Article 11).

• Information is awaited on additional measures which could be envisaged, in particular concerning the awareness raising of the competent local authorities (mayors, governors and police chiefs) on their obligations under the Convention (see also the individual measures above).

• In this context it should be noted that contacts have been taken between the Secretariat and the Bulgarian authorities with regard to the organisation of certain training activities foreseen in 2008.

            2) Effective remedies: A reflection was carried out within the Ministry of Justice on the need to amend the Meetings and Marches Act. In June 2007 the authorities informed the Committee that a draft law amending the Meetings and Marches Act will be examined soon by the Parliament. According to this text, organisers of meetings and demonstrations to take place outdoors must inform the mayor's office of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent district court, which must give its decision, which is final, within in 3 days.

• Evaluation: The grounds on which a meeting may be banned, according to the law currently into force, appear to meet the requirements of the Convention and the case-law of the European Court in this area. These grounds are not changed in the draft law. On the other hand, the Bulgarian authorities have been invited to consider the possibility of better arranging different time-limits provided by the draft law in order to allow that complaints against meeting bans may be examined before the date intended for the meeting (see the decision adopted by the Committee of Ministers at their 1007th meeting (October 2007)).  

• Information is awaited on this issue, as well as on the time frame for the adoption of the draft law amending Meetings and Marches Act.

- Cases concerning the poor conditions of the applicants’ detention

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

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

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

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[12]

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

These cases concern the poor conditions of the applicants' detention between 1996 and 2000, amounting to degrading treatment, in different detention facilities of the Investigation Service (Plovdiv, Shoumen, Pazardjik and Varna) and prisons (Pazardzhik and Varna) (violations of Article 3). The Iovchev case also concerns the lack of an effective remedy in this respect (violation of Articles 13).

The cases also concern different violations of the Convention related to the pre-trial detention (violations of Article 5§§1, 3, 4 and 5).

The Dobrev and Yordanov cases relate to breaches of the right to respect for the applicants' home life in that their homes were searched in 1999, in violation of domestic law (violations of Article 8).

Finally, the Iovchev case also concerns the excessive length of the criminal proceedings instituted against the applicant in 1996 (violations of Article 6§1).

Individual measures: Mr Kehayov is no longer detained under the conditions criticised in this judgment. The other applicants have been released. Subsequently to his release in 1999, the applicant in the Todorov Todor case has been convicted to a term of imprisonment. However, it should be noted that the European Court examined the applicant’s conditions of detention only with respect to the period until 1999. The European Court has granted just satisfaction in respect of the non-pecuniary damage the applicants suffered on account of the violations.

The criminal proceedings in the Iovchev case were closed on 12/02/2003.

General measures:

• The Bulgarian authorities provided additional information (letters of 14/06/07). The Secretariat is examining this information.

            1) Violations of Article 3 (detention conditions):

•Information provided by the Bulgarian authorities: Plans of action concerning the execution of the cases of Kehayov and I.I. were provided in February 2006. They provide for the publication and the dissemination of the European Court's judgments in these cases and indicate that the Committee of Ministers will be informed of any modification or good practice adopted in the investigation services in order to guarantee the detainees' rights.

The Kehayov, I.I., Dobrev and Yordanov judgments were published on the Internet site of the Ministry of Justice www.mjeli.government.bg. Furthermore, the authorities consider that the seminars on the Convention and the European Court's case-law organised by the National Institut 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 2 seminars on Article 3). Seminars are also planned for 2007, focusing on the provisions of the Convention violated by Bulgaria in recent judgments of the European Court.

The Bulgarian have also provided information about certain measures to improve detention conditions in the Pazardjik prison in 1999-2002.

• Information awaited: on the measures planned to improve detention conditions in the investigation services (see also the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its last report concerning this issue - report of 2002, made public in 2004) and the dissemination of the Kehayov and I.I. judgments.

            2) Violation of Article 13 (effective remedy with respect to detention conditions): given that this violation was mainly due to the authorities' unduly formalistic approach to applying the State Responsibility for Damage Act (according to this approach non-pecuniary damage could only be proved through formal evidence, such as witness testimony) and to the excessive length of the proceedings in application of this Act in the applicant's case, the publication and the dissemination of the European Court's judgment in the Iovchev case to the competent courts appear to be sufficient for execution.

• Information required concerning measures related to the violation of Article 13. Examples showing the change in the case-law concerning this legislation in similar cases would be appreciated.

            3) Violation of Article 5§1 (unlawfulness of the applicant's detention due to the fact that it was not based on a written order as required by domestic law): the Dobrev and I.I. cases present similarities to the case of Anguelova (Section 4.1). In this case the authorities have indicated in particular that in a circular letter of 13/03/2002 the Director of the national police force directorate reminded all chiefs of regional police force directorates of their obligation to take all necessary measures to ensure strict compliance with the provisions regulating police detention.

            4) Violations of Article 5§3 (right to be brought before a judge, excessive length of detention pending trial) and of Article 5§4 in the Staykov and I.I. cases (lack of effective judicial review of the lawfulness of the applicant's detention):  these cases present similarities to those 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 01/01/00.

            5) Violation of Article 5§4 in the Kehayov case (denial of access of applicants' lawyers to the case file): the case presents similarities to the Shishkov case (judgment of 09/01/2003), which has been transferred to Section 6.2, following the dissemination of the judgment to the competent authorities with a circular letter drawing their attention to the fact that the practice of refusing access to case files is contrary to the requirements of the Convention.

            6) Violation of Article 5§4 (lack of prompt examination of the requests for release): the Dobrev case presents similarities to that of Kolev (Section 4.2).

            7) Violation of Article 5§4 in the Kehayov case (prevention of the applicant's lawyer from representing him at one of the hearings): the publication and the dissemination of the judgment appear to be sufficient measures to prevent similar violations. The European Court noted that the alleged defect in the authorisation for representation did not justify the decision depriving the applicant of his defence, not only under Article 5 of Convention, but also with regard to the relevant domestic law.

• Information provided: The Kehayov and the I.I. judgments were published on the Internet site of the Ministry of Justice www.mjeli.government.bg.

            8) Violation of Article 5§5 (lack of an enforceable right to compensation for detention in contravention of Article 5): the Dobrev case presents similarities to that of Yankov (Section 4.2).

• Information awaited: on the dissemination of the Kehayov case. 

9) Violations of Article 6§1 (excessive length of criminal proceedings): the Iovchev case presents similarities to that of Kitov (Section 4.2).

            10) Violations of Article 8 in the Dobrev and Yordanov cases (searches of homes in contravention of domestic law): in view of the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, the dissemination of the present judgments to the competent authorities appear to be sufficient measures for execution.

- Cases mainly concerning the length of detention on remand

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

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

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

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

60859/00          Hristova, judgment of 07/12/2006, final on 07/03/2007[13]

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

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

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

These cases, except the Bojinov case, concern the excessive length of the applicants' pre-trial detention between 1994 and 2000, in view of the insufficient reasons to justify it and in view of the fact that “special diligence” was not displayed in the conduct of the proceedings in the Mitev case (violations of Article 5§3).

The Asenov and Hristova cases also concern the lack of judicial review of the lawfulness of the detention, due to refusals by the competent court to examine the applicants’ requests concerning bail, in spite of the fact that they remained in detention (violations of Article 5§4).

The Asenov, Bojilov, Danov, Mitev and the Yosifov cases also concern violations of the applicants' right to be brought before a judge promptly after their arrest (violations of Article 5§3).

The Asenov, Bojilov, Bojinov, Hristova and Mitev cases also relate to the unlawfulness of the applicants' continued detention pending trial following the domestic courts' decisions ordering their release (violations of Article 5§1). In the Hristova case this violation was due in particular to the fact that the applicant remained in detention despite the expiry of the maximal time-limit for detention pending trial provided for in the law.

The Danov case also concerns the failure to justify the continuation of the applicant's house arrest (violation of Article 5§3) and the unfairness of the proceedings in response to the applicant's appeal against his detention (violation of Article 5§4).

The Bojilov, Bojinov, Hristova, Mitev and Yosifov cases also relate to the lack of an enforceable right in Bulgarian law to compensation for detention contrary to Article 5 of the Convention (violations of Article 5§5).

The Asenov, Hristova, Iliev, Mitev and Yosifov cases also concern the excessive length of the criminal proceedings instituted against the applicants (violations of Article 6§1).

The Hristova and Mitev cases also relate to the competent court's failure to examine promptly some of the applicants' requests for release (violations of Article 5§4). Finally, the cases of Mitev and Yosifov relate also to the lack of effective remedies to enforce, at national level, the right to a hearing “within a reasonable time” (violations of Article 13).

Individual measures: The proceedings instituted against the applicants in the cases of Asenov, Hristova and Iliev ended. The applicants in the cases of Asenov, Bojilov, Danov, Hristova, Iliev, Mitev and Yosifov were released. The European Court granted the applicants just satisfaction in respect of the non-pecuniary damage they suffered.

• Information is awaited on the state of domestic proceedings in the Mitev and Yosifov cases and, if appropriate, on their acceleration.

General measures:

            1) Excessive length of the detention pending trial in the Asenov, Bojilov, Danov and Iliev cases (Article 5§3) and the unlawfulness of the applicants' continued detention pending trial in the Asenov, Bojilov, Bojinov and Mitev cases (Article 5§1): In view of the development of the direct effect given by Bulgarian courts to the Convention and to the Court's case-law, a circular to the authorities competent for pre-trial detention would be a relevant measure. This circular should draw their attention in particular to the need to take into consideration the resources of the person concerned when deciding on the amount of the bail (§§60-65 of the Bojilov judgment and Article 61§2 of the new Code of Criminal Procedure), to their obligation to provide sufficient justification of detention, when such detention results from non-payment of the requested guarantee (§§69-71 of the Asenov judgment) and to the requirements of the Convention concerning the reasoning of the decisions on detention pending trial (§§45 and 46 of the Iliev judgment). The attention of the competent authorities should also be drawn to the particular vigilance required in respect of execution of decisions for release (see in particular §§69-75 of the Bojilov judgment, §§35-39 of the Bojinov judgment and §§116-119 of the Mitev judgment).

• Information is awaited on the dissemination of the European Court's judgments in these cases.

            2) Lack of judicial review of the lawfulness of the detention in the Asenov case (Article 5§4): It should be noted that according to the new Code of Criminal Procedure (which entered into force in April 2006), in case of non-payment of bail, the court may order and the prosecutor may request either house arrest or detention of the accused person (article 61§5). Now, such measures must be justified by the competent court (articles 59 and 63 of the new CCP). Furthermore, the accused may now contest the lawfulness of detention resulting from non-payment of bail at each stage of the proceedings (articles 65§11 and 270 of the new CCP), whilst the provisions in force at the relevant time did not provide such a possibility at the stage of the preliminary investigation. In any event the dissemination of the European Court's judgment to criminal courts appears to be necessary, to draw their attention to their obligation to ensure judicial review of the lawfulness of detention, when such detention results from non-payment of the requested guarantee. 

3) Excessive length of detention pending trial in the Mitev case (caused by the fact that “special diligence” was not displayed in the conduct of the proceedings) (Article 5§3): this case presents similarities to the Kuibishev case (Section 5.3).

4) Failure to justify the continuation of the applicant's house arrest (Article 5§3) and the unfairness of the proceedings in response to the applicant's appeal against his detention (violation of Article 5§4) in the Danov case: With respect to the violation of Article 5§3, the case presents similarities to that of Nikolova No. 2 (Section 4.2, Kitov group). Concerning the violation of Article 5§4, the authorities were invited to consider publishing and disseminating this judgment, to draw competent courts' attention to their obligation to inform the defence of any source of information used by the authorities to justify a deprivation of liberty (see in particular §§ 92-93 of the judgment).

5) Right to be brought before a judge (Article 5§3): the Asenov, Bojilov, Danov and Mitev cases present 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.

            6) Lack of prompt examination of the request for release (Article 5§4): the Mitev case presents similarities to the Nikolov case (judgment of 30/01/03) which had been transferred to Section 6.2, following the entry into force of new provisions of the Code of Criminal Procedure providing for more strict time-limits for the examination of requests for release.

            7 Lack of an enforceable right to compensation for detention contrary to Article 5 (Article 5§5): the Bojilov, Bojinov and Mitev cases present similarities to the Yankov case (Section 4.2).

            8) Excessive length of the criminal proceedings (Article 6§1) and the lack of an effective remedy at the applicant's disposal in this respect (Article 13): the Asenov, Iliev and Mitev cases present similarities to the Kitov case (Section 4.2).

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

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 and Georgiev) 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 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). Seminars are also planned for 2007, focusing on the provisions of the Convention violated by Bulgaria in recent judgments of the European Court.

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

            4) Violation of Article 6§1: The Yankov case presents similarities to the Kitov case (see below, 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).

                       - Cases of length of criminal proceedings

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[14]

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[15]

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

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

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

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

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

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

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

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[17]

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[18]

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

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

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

These cases concern the excessive length of the criminal proceedings instituted against the applicants between 1986 and 1999 (violations of Article 6§1). The cases of Dimitrov, Karov, Osmanov, Popov, Sidjimov, Sodadjiev and Yuseinov also relate to the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings (violations of Article 13).

The cases of Al Akidi, Belchev, Dimov, E.M.K., Hamanov, Hristov, Kolev, Nedyalkov, Nikolova No. 2, Pekov, Popov, Toshev, Vachev and Vasilev also concern violations of the Convention related to the applicants’ detention between 1993 and 2003 (violations of Article 5§§1, 3, 4 and 5).

Individual measures: The applicants detained in these cases were released. The European Court awarded just satisfaction in respect of the non-pecuniary damage the applicants suffered on account of the violations.

• Additional information is awaited on the state of the proceedings in the Belchev, Hamanov, Karov, Kitov, Kolev, Nedyalkov, Pekov, Sidjimov, Toshev and Vasilev cases and, where appropriate, on their acceleration.

General measures:

I. Excessive length of criminal proceedings and effective remedies in this respect:

1) Violations of Article 6§1:

• Information requested: concerning the measures envisaged or adopted. The dissemination of the European Court’s judgment in the Kitov case, together with a circular, to criminal courts, prosecutors and preliminary investigation authorities drawing their attention to the conclusions and the concrete suggestions of the Court on the problems found (especially §§ 71, 73 and §§ 81-83) have also been requested.

• Information provided: A new Code of Criminal Procedure entered into force on 29/04/2006. Its adoption is part of a global reform of criminal justice in Bulgaria, aimed in particular at accelerating criminal proceedings. For instance, the code explicitly introduces the obligation for courts and investigation authorities to examine criminal cases within a reasonable time (Art. 22).

Many other new provisions are aimed at accelerating of the proceedings. The most important among them provide for short time limits for the examination of a criminal case and for the postponement of its examination (Articles 252, 271 and 345), as well as for wider use of simplified proceedings (Articles 362-367, 370‑374 and 356-361).

Furthermore, seminars and other training activities on the Convention and the case-law of the European Court (including Art. 6 and 13) are regularly organised by the National Institute of Justice (more that 23 seminars for more than 798 participants – judges, prosecutors and national experts – took place in the period 2001-2006).  

The Bulgarian authorities provided statistical data concerning the average length of criminal proceedings (letter of 19/06/07). The Secretariat is examining this information.

• Additional information awaited: on other measures, apart from the legislative reform, envisaged to reduce the excessive length of criminal proceedings. It should be noted in this respect that the Ministry of Justice’s plan of action for the implementation of the reform of criminal justice provides for the computerisation of the judicial system, the creation of a consistent mechanism for collection and analysis of statistical data concerning the work of courts, as well as, other relevant measures in this field. Information is also awaited on the dissemination of the European Court’s judgment in the Kitov case.

2) Violations of Article 13: Articles 368-369 of the new Code of Criminal Proceedings provide for a defendant to ask for the transfer of his or her case to a competent court once a period of 1 or 2 years has elapsed since the beginning of the preliminary investigation, according to the gravity of the charges. The court to which the case is referred may order the prosecutor to bring the preliminary investigation to an end within two months or put an end to the penal proceedings. The delegation indicated that the Ministry of Justice envisages proposing the introduction of a similar remedy concerning criminal proceedings pending at the trial stage.

• Additional information is awaited in this respect.

II. Violations concerning pre-trial detention:

1) Violation of Article 5§1 in the Popov case (unlawfulness of the applicant's detention after expiry of the time-limit for detention): No specific measure appears to be necessary (prosecutor's decision to transmit the request for release to the court instead of ordering the applicant's release contrary to the domestic law, finding confirmed by the domestic court which received this request – see §§75-76 of the judgment of the European Court).

2) Violations of Article 5§3 in the cases of Nikolova No. 2 and Pekov (excessive length of house arrest): Although as from 01/01/2000 house arrest may only be ordered by a court, and not as formerly by a prosecutor, the Bulgarian authorities are invited to consider sending the judgment in this case to the competent courts with an explanatory note drawing their attention to the requirements of the Convention concerning the length and the justification of such measures (§§61-62 and 67-68 of the judgment of the European Court).

• Information is awaited on the dissemination of the case of Nikolova No. 2.

3) Violations of Article 5§3 (excessive length of the detention on remand, violation of the right to be brought before a judge) and of Article 5§4 (lack of effective judicial review of the lawfulness of the pre-trial detention): The cases of Al Akidi, Belchev, Dimov, E.M.K., Hamanov, Hristov, Kolev, Nedyalkov, Nikolova No. 2, Pekov, Popov, Toshev and Vachev present similarities to the Assenov (judgment of 28/10/1998) and Nikolova (judgment of 25/03/1999) cases closed by Resolutions ResDH(2000)109 and ResDH(2000)110, following a legislative reform of criminal procedure which took effect from 01/01/2000.

4) Violation of Article 5§4 in the Nedyalkov case (due the competent court's refusal to examine an applicant's request for release after expiry of the time-limit provided in domestic law for detention): The European Court observed that the domestic court's decision was contrary to established practice in this field (§79 of the Nedyalkov case). For this reason, the dissemination of this judgment to competent courts appears to be sufficient measure for execution.

• Information is awaited on the dissemination of the Nedyalkov case.

5) Violations of Article 5§4 in the cases of Nikolova No. 2, Pekov and Vachev (lack of effective judicial review of the lawfulness of house arrest): The European Court noted (§55 of the Vachev judgment) that in 2000, after the facts in this case, the Code of Criminal Procedure was modified: Article 151§2 introduced a full initial and subsequent judicial review of this measure (see also Articles 62 and 270 of the new Code of Criminal Procedure).

6) Violations of Article 5§4 (non-adversarial nature of proceedings before an appellate Court and before the Supreme Court): The E.M.K., Hristov and Kolev cases present similarities to that of Ilijkov (judgment of 26/07/2001), which has been transferred to Section 6.2, following the enactment in 2003 of a legislative reform of appeals against pre-trial detention.

            7) Violations of Article 5§4 in the Kolev and Popov cases (lack of prompt examination of the requests for release): It has already been noted that following the amendments of the Code of Criminal Procedure which entered into force on 01/01/2000, courts are required to consider the requests for release within very short time-limits (see also Article 65 of the new Code Code of Criminal Procedure). However, as such time-limits are specified only at the preliminary investigation stage of criminal cases, it would be necessary to inform the competent courts of the requirements of Article 5§4 of the Convention concerning this matter, and more particularly of the obligation also to examine promptly requests for release made at the trial stage.

• Information is awaited in this respect.

8) Lack of judicial review of the lawfulness of the detention in the Toshev case (Article 5§4): The case presents similarities to the Asenov (judgment of 15/07/2005).

9) Violations of Article 5§5 (lack of an enforceable right to compensation for detention in contravention of the provisions of Article 5): The cases of Belchev, Hamanov and Vachev present similarities to the Yankov case (Section 4.2).

III. Publication:

The European Court’s judgments in Belchev, Hamanov, Kitov, Nedyalkov, Nikolova No. 2, S.H.K., Sidjimov and Zhbanov have been published on the Internet site of the Ministry of Justice www.mjeli.government.bg. The Zhbanov judgment was also published in the first issue of the new quarterly journal European Law and Integration, published by the Ministry of Justice in 1000 copies for distribution to magistrates and academic circles.

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

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

62722/00          Gospodinov, judgment of 10/05/2007, final on 10/08/2007[19]

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

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

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[20]

57641/00          Kovacheva and Hadjiilieva, judgment of 29/03/2007, final on 29/06/2007[21]

72855/01          Parashkevanova, judgment of 03/05/2007, final on 03/08/2007[22]

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

58828/00          Stefanova, judgment of 11/01/2007, final on 11/04/2007[23]

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

These cases concern the excessive length of civil proceedings (violations of Article 6§1). Certain cases also relate to the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings (violations of Article 13).

The European Court noted that the delays in the civil proceedings in the Djangozov and Todorov cases were due mainly to the length of two sets of criminal proceedings, itself excessive.

Individual measures: The proceedings in all cases, except from the cases of Kiurkchian and Stefanova, have been closed.

• Further information awaited: on the state of the proceedings in the Kiurkchian and Stefanova cases and on their acceleration, if appropriate.

General measures:

            1) Excessive length of civil proceedings and effective remedies in this respect:

• Information provided by the Bulgarian authorities: According to a report by two Bulgarian NGOs (the Centre for Liberal Strategies and the Agency for sociological and marketing research (Alpha research)) the average length of civil proceedings in Bulgaria is at present 350 days. Official statistical data on this issue will be provided as soon as it becomes available. Furthermore, seminars and other training activities on the Convention and the case-law of the European Court (including Art. 6 and 13) are regularly organised by the National Institute of Justice (more that 23 seminars for more than 798 participants – judges, prosecutors and national experts – took place in the period 2001-2006). Moreover, it was noted that the new provision of Article 217a of the Code of Civil Procedure, adopted in July 1999, allows a party to the proceedings to lodge a complaint against the length of the civil proceedings with the court superior to the court dealing with the merits. The president of the court to which the case is referred may give binding instructions to the competent court. The authorities indicated that they would provide examples on the application of this provision. The judgments in Djangozov, Vachevi and Kiurkchian were published on the website of the Ministry of Justice www.mjeli.government.bg.

• The Bulgarian authorities provided further information on the above issues (letter of 15/06/07). The Secretariat is examining this information.

            2) Excessive length of criminal proceedings and effective remedies in this respect: Measures to be taken are under examination in the framework of the Kitov case (See above).

• Further information awaited: In addition, clarification is necessary concerning the introduction of domestic remedies whereby a party to a stayed civil proceedings may obtain acceleration of criminal proceedings which are blocking their resumption (see § 63 of the Todorov judgment).

- 19 cases against Croatia

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

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

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

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

Individual measures:

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

            2) Development: In May 2006, the applicant's representative complained to the Committee of Ministers that the 2003 decision requiring the applicant's child to be returned to her had not been enforced.

In response, the Croatian delegation, recalling the European Court's findings concerning the termination of the proceedings relating to the enforcement of this decision, indicated that it would be necessary for the applicant to contact the authorities so that, if appropriate, they may consider measures to remedy her situation.

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

            3) Present situation of the applicant's child: In response to the question of who has the child's custody and on what legal basis, the authorities indicated that the child lives with his father on the basis of an agreement between the parents, concluded in February 2005. The social welfare authorities adopted a decision on 15/02/2005 to approve this agreement. The decision indicates furthermore that the mother has access to her son on the basis of an agreement with the father. In addition, a report of the social welfare of July 2006 indicates that the child lives with his father and his new family, regularly attends school, where he has very good marks, is in good health and is normally developed.

General measures:

• Information required: the Croatian authorities were invited to present a plan of action for the execution of this judgment, in particular concerning the necessity of adopting measures to ensure that proceedings in application of the 1980 Hague Convention are carried out speedily and to guarantee the effectiveness of the enforcement mechanisms for decisions requiring the return of a child. The authorities' attention has been drawn to the experience of other member states having encountered similar problems (see the memorandum on the judgments of the European Court of Human Rights raising issues linked to international conflict of jurisdiction in child custody matters - CM/Inf/DH(2005)11).

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

• Information provided: the Government Agent's office initiated a reflexion, in co-operation with the Ministry of Health and Social Welfare on measures which might improve the efficiency of domestic procedures in application of the Hague Convention. According to the conclusions of this reflexion, legislation could be necessary. In the meantime, the authorities recognise the need for immediate training measures on the Hague Convention. Three seminars on the application of the Hague Convention have already been organised by the Judges' Academy, with lecturers from Germany and from the Secretariat of the Hague Conference.

The European Court's judgment was published on the Internet site of the Ministry of Justice http://www.provosudje.hr and in the legal journal Case law of the European Court of Human Rights, No. 2 (June-December 2005). It was sent out to all authorities involved in the application of the Hague Convention.

• Further information awaited: on additional measures to be adopted and the time-frame for their implementation.

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

The case concerns poor conditions under which the applicant was detained in the Lepoglava State Prison from January 2001 to April 2003 (violation of Article 3).

The European Court found that insufficient space coupled with lack of access to a toilet for over twelve hours a day during the period of about two years and three months were in themselves sufficient to cause the applicant hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and amounted to degrading treatment.

The European Court did not exclude that the Act on Enforcement of Prison Terms, of which the relevant provisions entered into force on 01/01/2002, might provide an effective remedy in respect of acts or decisions which allegedly violate an inmate’s rights guaranteed under domestic law (including detention conditions). However, in the case at issue, the applicant had already served one year in the conditions complained of before the new remedy was created and, moreover, lodged his complaint with the European Court before that date. Consequently he was not required to exhaust this remedy.

Individual measures: None: the applicant was released, having served his sentence, on 08/04/2003. The European Court awarded him just satisfaction in respect of non-pecuniary damages.

General measures: Following the Benzan case (friendly settlement, Resolution ResDH(2005)49 of 8 November 2002), the Croatian authorities undertook a number of measures including the renovation of Lepoglava State Prison.

In addition, the Act on Enforcement of Prison Terms contains provisions governing living conditions and standards of hygiene in detention facilities as well as providing the possibility to complain about prison conditions (Article 17).

In a letter of 11/05/2007 the Croatian authorities provided information concerning the application of the Act on Enforcement of Prison Terms.

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

The judgment of the European Court was translated and sent out to the competent authorities. It is also published on the internet site of the Ministry of Justice (www.pravosudje.hr) and in the periodical publication on the case-law of the European Court of Human Rights.

30431/03          Vajagić, judgment of 20/07/2006, final on 11/12/2006

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 complain 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 at national level when the European Court delivered its judgment. The question concerning the application of Article 41 was reserved in whole. 

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 of the judgment). 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).

2) Violation of Article 13: this issue is examined in the framework of the case of Počuča (Section 4.2).

3) Publication: the judgment of the European Court was published on the website of the Ministry of Justice www.pravosudje.hr <http://www.pravosudje.hr>.

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

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

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

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

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

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

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

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

General measures:

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

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

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

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

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

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

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

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

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

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

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

General measures:

            1) Excessive length of land registry proceedings: The Croatian government indicated during the examination of this case before the European Court that this is a systemic problem and that a reform of the system for registration in the land registry was under way (§25 of the judgment).

• Information provided by the Croatian authorities:The reform has followed the following aims: to decrease number of pending land registry cases, to shorten overall duration of proceedings in land registry cases in accordance with the “reasonable time” requirement and to transfer all registry data on mortgage and ownership rights into electronic form.

In the course of the implementation of this reform the number of pending land registry cases has been decreasing continuously. Thus, in the first quarter of 2007 there were 146 085 unsolved registry cases in Croatia, which makes 47 970 less cases than at the relevant time in 2006. Further, the duration of this kind of cases is also decreasing continuously. As regards proceedings for registration of mortgage rights, the overall duration is 7 days. As regards proceedings for registration of ownership rights, the overall duration is 63 days (the authorities presented statistical data concerning the duration of land registry proceedings in particular before municipal courts in Croatia). Finally, the transfer of all registry data into electronic form is in its final stage (in May 2007 99,17% of the data had been transferred into electronic form). It should be also noted that all application forms for initiation of registry proceedings are available in electronic form on Internet.

• Bilateral contacts are under way in order to assess the necessity of any further measures.

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

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

                       - 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

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

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

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

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

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

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

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

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

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

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

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

The domestic proceedings are closed in the Kvartuč and Mahmutović cases but were still pending in the Mačinković, Mužević, Omerović, Šamija and Šoštarić cases when the European Court gave its judgment.

The European Court also awarded just satisfaction in respect of non-pecuniary damage in all those cases.

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

General measures:

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

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

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

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

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

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

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

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

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 in the Počuča case began in August 1998, in the Božić case in July 1999 and in the Smoje case in February 1997. All the proceedings were still pending when the European Court delivered its judgments.

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

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

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

General measures:

            1) Excessive length of administrative proceedings: The violation found in the Počuča case is due to a great extent to a complex situation created following a decision of the Constitutional Court of 1998 declaring the unconstitutionality of certain legislative provisions concerning the adjustment of pensions. According to the Government, following to this decision, more than 427 809 applications have been lodged with the local Pension Fund's regional offices by those seeking adjustment of their pensions (§7 of the judgment of the European Court). The difficulties in the examination of these requests would come in particular from the lack of a special legislation replacing the provisions declared unconstitutional. Such legislation intervened only in 2004 and 2005 (Act on the Implementation of the Constitutional Court's decision of 12 May 1998 and Pensioners Fund Act). It finally established a mechanism for compensation of the reducing of some pensions and thus resolved the legal gap created by the decision of the Constitutional Court of 1998.

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

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

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

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

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

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

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

•Publication and dissemination of the judgment in the Počuča case is also expected, in particular in order to draw the attention of the competent authorities to the special diligence required in the examination of pension disputes.

- 20 cases against Cyprus

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

The case concerns the lack of impartiality of the Limassol Assize Court which in 2001 sentenced the applicant, an advocate, to 5 days' imprisonment for contempt in the face of the court while he was conducting the defence in a murder trial. The European Court found that the Assize Court failed to satisfy the requirements of objective and subjective impartiality: first, it was the judges criticised by the applicant who took the decision to prosecute, tried the issues arising from the applicant's conduct, determined his guilt and imposed the sanction. Secondly the judges' personal conduct demonstrated that they did not succeed in detaching themselves sufficiently from the situation (violation of Article 6§1).

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

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

General measures:

            1) Violation of Article 6§1

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

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

            2) Violation of Article 10

•  Information received: At the same meeting the Cypriot authorities also informed the Committee that the judgment of the European Court, with an explanatory note, had been promptly sent out to the Supreme Court, the Bar Association (also published on its website: www.cyprusbarassociation.org), the Ombudsman and the Justice Ministry. The judgment was also translated and published in the Cyprus Law Tribune of the Cyprus Bar Association, 2005, 1st issue, p 38 ff.

• Information awaited on dissemination of the Court's judgment to lower courts.

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

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

34579/05          A.J. Hadjihanna Bros (tourist enterprises) Ltd and Hadjihannas, judgment of 18/01/2007, final on 18/04/2007[24]

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

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

15940/02          Gavrielides, judgment of 01/06/2006, final on 01/09/2006[25]

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

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[26]

2418/05            Ouzounian Barret, judgment of 18/01/2007, final on 09/07/2007[27]

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[28]

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[29]

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. Some of them also concern the lack of an effective domestic remedy (violations of Articles 6§1, 13).

Individual measures: In all cases except those of Shacolas and A.J. Hadjihanna Bros (tourist enterprises) Ltd and Hadjihannas, proceedings are closed.

• Information is awaited concerning the state of these proceedings.

General measures:

            1) Violations of Article 6§1:

• Measures adopted: In the context of the Gregoriou case (judgment of 25/03/2003), the Cypriot authorities informed the Committee of regulatory measures (in particular a series of circulars issued by the Supreme Court from 1995-2003) adopted for the prevention of similar violations, and that in 2005 the average length of proceedings in the District Courts and in the Supreme Court was 2½ years.

By letter of 19/07/06 the Cypriot authorities informed the Committee that the seven similar judgments of the Cichowicz group (section 2, 970th meeting, July 2006) were promptly disseminated by the Human Rights Sector of the Government Agent to judicial authorities, the Justice Ministry, the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees.

• Information is urgently awaited on further possible legislative or other measures envisaged to accelerate proceedings before civil courts.

            2) Violation of Article 13:

• Measures under way: By letter of 19/07/2006 the Cypriot authorities informed the Committee that the Human Rights Sector of the Government Agent has been preparing legislation, in accordance with the Court's case-law, providing an effective remedy in cases of excessively lengthy proceedings. The draft legislation will be tabled in Parliament by the Justice Ministry once approved by the government.

• More information is awaited as well as a copy of this draft legislation with an indicative timetable for its adoption.

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).

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.

- 9 cases against the Czech Republic

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

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

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

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

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

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

In the Reslová case, the European Court noted that the interim measure ordering the father to bring the children back to the applicant had not been enforced and had even been declared unenforceable by the District Court, as there had been no indication as to whom custody had been granted.

In those circumstances the applicant would not have been successful in applying for a right of access, as there had been no decision, not even a provisional one, granting custody of the children to one of the parents. The Czech courts, by leaving open the question of parental rights and obligations, had allowed the dispute to be settled simply by the passage of time, to the detriment of the applicant.

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

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

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

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

The Reslova, Fiala, Kříž and Mezl cases also concern the excessive length of the civil proceedings The European Court observed that such periods were excessive and did not meet the reasonable time requirement (violation of article 6 § 1).

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

Individual measures:

            1) Reslová case:

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

            2) Koudelka case:

• Information provided by the Czech authorities: The proceedings concerning visiting rights and alimony are currently pending before the Prague 1 District Court. In June 2006 the child welfare authorities offered the applicant the opportunity to contact his daughter via a letter but the daughter refused to accept the letter. It seems that due to the poor health of the applicant and the hostile attitude of the daughter (who is already 17 years old) it is not feasible to establish contact between the applicant and his daughter without the presence of a third party.

            3) Mezl case: The applicant’s daughter attained her majority in 2004. As a consequence, the national court pronounced the issues of the custody and visiting rights extinguished. The proceedings concerning maintenance payments were still pending when the European Court rendered its judgment.

• Information is awaited in the Reslová, Koudelka and Mezl cases on the current state of the proceedings concerning visiting rights. 

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

            4) Kříž case: The proceedings are closed. The applicant’s visiting rights were in force (but not enforced) for more than ten years until his rights were converted in 2004 and 2005 into a right to written contact only.

• Assessment: No further individual measure seems necessary in the Fiala and Kříž cases.

General measures:

            1) Violations of Article 6§1 and Article 13: The Reslová, Fiala, Kříž and Mezl cases present similarities to the Bořánková case (judgment of 07/01/2003, in Section 4.2 for the 1007th meeting, October 2007) in which the Czech authorities have already adopted and are currently adopting measures concerning the excessive length of judicial proceedings and the lack of an effective remedy.

            2) Violation of Article 8:

• The Czech authorities are invited to provide information on the measures taken or envisaged in order to prevent new similar violations, in particular in the light of the experience of the other countries, see the Memorandum CM/Inf/DH(2005)11-rev 3.

The judgments of the European Court have already been translated and published on the website of the Ministry of Justice (http://www.justice.cz) and sent out to the authorities concerned.

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

This case concerns a violation of the applicants' right to respect for their private and family life on account of the fact that their five children had been taken into public residential care on the grounds 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 (violation of Article 8).

The European Court noted that the Czech courts had admitted that the fundamental problem for the applicants was how to find housing suitable for such a large family. Neither the applicants' capacity to bring up their children, nor the affection they bore them had ever been called into question, and the courts had acknowledged the efforts they had made to overcome their difficulties. In the Court's view, therefore, the underlying problem was a lack of resources, which the Czech authorities could have made up for by means other than the total separation of the family, which seemed to be the most drastic measure and could be applied only in the most serious cases. Consequently, the Court considered that although the reasons given by the Czech administrative and judicial authorities had been relevant, they had not been sufficient to justify such a serious interference in the applicants' family life as the placement of their children in public institutions. In addition, it was not evident from the facts of the case that the social protection authorities had made serious efforts to help the applicants overcome their difficulties and get their children back as soon as possible.

Individual measures: In 2003, the eldest child reached the age of majority. The custody of the two youngest children was given to a Mr and Mrs M. in January 2005. The care orders concerning the other two children were annulled in February 2006 and they were able to return to live with their parents, under educational supervision. The two youngest children are apparently still living with the foster family.

• Information provided by the Czech authorities: The applicants have instituted civil proceedings with a view of terminating the foster care of the two youngest children and obtaining their custody again.

• Information is awaited on the current state of these proceedings.

General measures:

• Information is awaited on measures taken or envisaged to ensure that in similar cases less drastic measures are used when interference with the family life is necessary. Moreover, information is awaited on measures taken or envisaged to provide sufficient assistance and guidance to parents in difficulties.

On 23/05/2007 the Secretariat received information on general measures and is currently assessing it.

50073/99          Chadimová, judgment of 18/04/2006, final on 18/07/2006, and of 26/04/2007, final on 24/09/2007

The case concerns the excessive length of criminal proceedings brought against the applicant in 1992 for fraud and forgery of public documents concerning an agreement to return a building in Prague and an adjoining plot of land. Proceedings lasted 11 years and 6 months, ending when the applicant accepted a presidential pardon and reaching no verdict on the merits (violation of Article 6§1).

The case also concerns a violation of the applicant's right to the peaceful enjoyment of her property in that the municipal court forbade her to dispose of the building in question from June 1994 to May 1999, on grounds which were not provided for in Czech law (violation of Article 1 of Protocol No. 1).

Finally, the case concerns the fact that audio cassettes containing recordings of the applicant's conversations with her counsel, made while the applicant's telephone was being tapped during the criminal proceedings, were not destroyed, in disregard of a decision of the Constitutional Court rendered in November 1995 (violation of Article 8).

Individual measures: The European court considered that the question of the application of Article 41 (just satisfaction) was not ready and reserved the question as a whole.

• Information is awaited on the applicant's situation, and in particular as to whether the cassettes have now been destroyed, as ordered by the Constitutional Court in November 1995.

General measures: Judgments of the European Court concerning the Czech Republic are always translated and published on the internet site of the Ministry of Justice (www.justice.cz).

            1) Violation of Article 6§1: This case presents similarities to that of Bořánková (judgment of 07/01/03, Section 4.2, Volume I).

            2) Violations of Article 1 of Protocol No.1 and Article 8:

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

On 21/03/2007, the Secretariat received information on individual and general measures from the Czech authorities. This information is being assessed.

75615/01          Štefanec, judgment of 18/07/2006, final on 18/10/2006

This case concerns a violation of the applicant's freedom of expression, in that he was fined under section 14 of the Right of Assembly Act for having organised a demonstration which took place on 27/05/2000 despite having been banned beforehand (violation of Article 10).

The European court considered that the way the administrative authorities had interpreted Czech law in describing the applicant as the organiser of the demonstration constituted an extension of the scope of the Right of Assembly Act which had been impossible to predict. The Court therefore considered that the application of section 14(1) of that Act did not satisfy the requirements of predictability in the present case.

The case also concerns a violation of the applicant's right of access to a tribunal on account of the limited consideration given to his case by the Constitutional Court under Article 83§1 of Law No. 200/1990 (i.e., solely related to questions of constitutionality) (violation of Article 6§1).

The European Court observed that an accused must be able to submit any decision taken against him to subsequent review by an independent tribunal. Since the procedure in the Czech Constitutional Court was limited to consideration of questions of constitutionality only and did not involve a full, direct assessment of appellants' civil rights, there had not been in the present case a judicial review of sufficient scope for the purposes of Article 6§1.

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

• Assessment: No further individual measure seems to be needed.

General measures:

            1) Violation of Article 6§1: Article 83§1 of Law No. 200/1990, at the origin of the violation, has meanwhile been annulled by the Constitutional Court. Moreover, the Czech Constitutional Court, in a judgment of 27/06/2001, decided to annul the whole administrative section of the Code of Civil Procedure, which subsequently underwent major reform. According to the new rules, which entered into force in 2003, applicants may request annulment of a decision concerning an act of an administrative authority, if this decision prejudices them directly or violates their rights. This principle also applies to administrative decisions extinguishing a case.

• Clarifications are still awaited on the functioning of the new appeal system as well as copies of the laws regulating it.

            2) Violation of Article 10: The judgments of the European Court are systematically published on the website of the Ministry of Justice (www.justice.cz) and sent out to the authorities concerned. Moreover, the Ministry of Justice is currently examining whether a legislative change is needed to the Right of Assembly Act.

• Information is awaited on possible outcomes of these reflections.

On 22/05/2007, the Secretariat received a letter containing information on general measures. This information is being assessed. 

48548/99          Zich and others, judgments of 18/07/2006, final on 18/10/2006 and of 21/12/2006 - Friendly settlement (Article 41)

The case concerns the restoration of a housing co-operative, acquired in good faith, to its previous owners in 1981.

In 1991 the successors in title to the original owners brought an action to recover ownership of the building from the co-operative. On 23/07/1994 the Prague 3 District Court ordered the co-operative to reach an agreement for the return of the building on such terms that the plaintiffs would become co-owners; it held that it had been established that the plaintiffs had been in financial difficulties at the time of the transfer, that they were accordingly entitled to apply for restitution under section 3 of the Extrajudicial Rehabilitation Act and that the co-operative was required to return the property. The judgment was upheld on appeal and the applicants appealed - unsuccessfully - on points of law and before the Constitutional Court. The Ministry of Finance reached an agreement with the co-operative under the terms of which, in August 1999, it was reimbursed the price it had paid to purchase the property in 1981 (53 470 euros). In July 2002 the District Court dismissed a claim by the co-operative against the state for the difference in value between the purchase price and the sum paid, partly by its members and partly by the bank, for the reconstruction and modernisation of the building.

The European Court considered that the applicants had title to a possession and that the return of the property had entailed an interference with their right to the peaceful enjoyment of it. That interference, which had been based on the Extrajudicial Rehabilitation Act, had been in the public interest. The Court nonetheless noted, among other things, that the co-operative had acquired the property in good faith, without knowing that it had been given to the state by its former owners under pressure, and for the price fixed in accordance with the law. It further observed that under the Extrajudicial Rehabilitation Act the co-operative had been entitled to reimbursement of the price it had paid to purchase the property in 1981.

In those conditions, the Court considered that the applicants had had to bear an “individual and excessive burden” and that the Czech authorities, in applying the Extrajudicial Rehabilitation Act, had not taken into consideration the conditions in which the return of the property had been effected, particularly the terms of the compensation intended to lighten the burden they had to bear (violation of Article 1 of Protocol No. 1).

Individual measures: The pecuniary damage suffered was the subject of a friendly settlement concluded before the European Court. Moreover, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage suffered.

General measures:

• The Czech authorities are invited to provide information on measures taken or envisaged to prevent new, similar violations. In any case, publication and dissemination of the European Court's judgment to the authorities concerned seems necessary. The judgment of the European Court has already been translated and published on the website of the Ministry of Justice (www.justice.cz).

- 1 case against Estonia

2192/03            Harkmann, judgment of 11/07/2006, final on 11/10/2006

The case concerns a violation of the applicant's right to be promptly brought before a judge after arrest (violation of Article 5§3) and the absence of an enforceable right to compensation in this respect (violation of Article 5§5).

In 1996 and 2000, criminal proceedings were instituted against the applicant for knowingly making false accusations concerning the commission of a criminal offence by another person. When the applicant failed to appear at the court, the Tartu County Court declared him a fugitive and ordered his arrest. The applicant was arrested on 02/10/2002 and taken into custody, where he was kept until 17/10/2002.

The European Court noted that the applicant had been released after a hearing of his criminal case at which the lawfulness of his detention had been examined. Before that, he had been kept in custody for 15 days. The Court found that this period was incompatible with the requirement of “promptness” in Article 5§3. Since the detention had been lawful under Estonian law but Estonian law did not provide a distinct right to compensation for detention in violation of Article 5, there had also been a violation of Article 5§5.

Individual measures: The applicant was released on 17/12/2002. The European Court has awarded just satisfaction to the applicant in respect of the non-pecuniary damage sustained.

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

General measures:

            1) Violation of Article 5§3: According to the new Code of Criminal Procedure, which entered into force on 01/07/2004, a person may be deprived of his or her liberty for up to forty-eight hours within which time he or she must be brought before a judge for the issue of a detention order.

            2) Violation of Article 5§5: On the basis of the Compensation for Unlawful Detention Act, persons detained unlawfully may receive compensation as determined by law. The provisions of this law may be invoked before the Estonian courts in case of violations of the provisions of the new Code of Criminal Procedure as well as in case of a violation of Article 5§3 of the Convention which is an integral part of Estonian law.

• Examples of cases where these remedies have been used successfully would be useful.  

            3) Publication and dissemination: The judgment of the European Court has been translated into Estonian, placed on the website of the Council of Europe Information Office in Tallinn (http://www.coe.ee) and it has been widely distributed, not least to courts and prosecutors.

- 2 cases against Finland

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

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

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

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

General measures: The Deputy Chancellor of Justice has invited the Ministry of Justice to examine whether there is need to amend the legislation in order to clarify the relationship between the Coercive Measures Act, the Code of Judicial Procedure and the Advocates Act. A working group was expected to be appointed in March 2007 to examine the overall renewal of the Coercive Measures Act. In this context it will also examine what kind of measures should be taken on the basis of the present judgment and on the jurisprudence of the European Court in general. An extensive preliminary report has already been made on this issue also referring to the present judgment.

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

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

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 applicant may apply for reopening of the case (Chapter 31, Article 2, of the Code of Judicial Procedure); it should be noted in this context that the children are now 17 and 19. In addition 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.

• Information provided by the Finnish authorities:

            1) Publication and dissemination: 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.

            2) Additional measures: The Ministry of Justice is 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.

- 30 cases against France

39922/03          Taïs, judgment of 01/06/2006, final on 01/09/2006[30]

This case concerns the death of the applicants’ son in 1993, while he was detained in a police cell in which he had been placed overnight to sober up.

The European Court found that the government had not been able to provide a plausible explanation for the discrepancy, or even contradiction, between the medical report drawn up when discharging the applicants’ son from hospital and the autopsy report, and regarding the cause of the injuries found on his body, given in particular that the injuries could in any event only have occurred during his detention (§ 95); furthermore, the inertia of the police officers confronted with physical and mental distress of the applicant’s son, and the lack of effective police and medical supervision, had constituted a violation of France’s obligation to protect the lives of persons in custody (violations of the substantive aspect of Article 2).

The European Court also found that the French authorities had not conducted an effective – or, a fortiori a quick – investigation into the circumstances surrounding the death of the applicants’ son (procedural violation of Article 2). To reach this conclusion, apart the length of the proceedings which had failed to establish the actual cause of death, the European Court took the following elements into account: no detailed evidence had been taken from the girlfriend of the deceased even though she had been at the police station on the night of the incident ; the fact that the investigating judge had refused to allow a reconstruction of the events ; the making of a post-mortem psychological inquiry, the usefulness of which in establishing the truth was doubtful but which had provided the judicial authorities with a means of minimising or excluding the police officers’ responsibility for their son’s death.

Individual measures:

• Information provided by the French authorities: with regard to a possible reopening of the investigation in this case, the delegation notes that in this case, unlike other judgments, the Court indicated no specific requirements relating to the execution. Furthermore, the delegation underlines that to reopen the investigation would contravene the res judicata status of a final judicial decision (the investigation at issue ended with a decision by the investigating magistrate that it was not necessary to continue with it; this decision was confirmed on 19/06/2003 by the special chamber of the Bordeaux Court of Appeal competent for questions concerning investigations (chambre d’accusation) and the judgment became final). Finally, the delegation adds that reopening of the proceedings also would not be allowed by Art. 626-1 ff., Code of Criminal Procedure as according to these provisions, reopening is possible only for convictions but not where charges have been dropped.

• Information provided by the applicant: the applicant indicates that he had asked for the investigation to be re-opened on the basis of Article 188 ff., Code of Criminal Procedure (reopening of an investigation on the basis of new charges) but his application was rejected by the Public Prosecutor’s Office on 12/01/2007.

• The examination of this information is underway.

General measures:

1) Violation of Article 2 (substantive aspect):

• Information provided by the French authorities: The judgment has been sent out to the police, and will be commented upon during police officers’ training, in order to draw the consequences of this judgment in their work and to avoid new, similar violations.

More generally speaking, the French government has maintained important efforts for several years, taking into account the CPT’s recommendations, to improve conditions of detention on remand. For example, a Circular was issued on 11/3/2003 sets out measures to “modernise professional practice and the means devoted to detention on remand (…) in order to guarantee respect for the dignity of detainees”.

Concerning the absence of a plausible explanation for the origin of the wounds, see below (procedural aspect).

• The examination of these measures is under way.

            2) Violation of Article 2 (procedural aspect):

• Information provided by the French authorities: the judgment of the European Court was sent to the First President of the Court of Cassation and to the Public Prosecutor before the same Court, as well as to the Public Prosecutor before the Court of Appeal of Bordeaux, which was concerned in this case. The French delegation also stated that the judgment would be published and commented on the Intranet site of the Ministry of Justice.

• The examination of these measures is under way.

6253/03            Vincent, judgment of 24/10/2006, final on 26/03/2007[31]

The case concerns degrading treatment suffered by the applicant, a paraplegic, when he was detained from 17/02 to 11/06/2003 in Fresnes prison, where he could not move around or, in particular, leave his cell by himself (violation of Article 3).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. The applicant is now detained in another prison and the complaints he lodged before the European Court regarding his conditions of detention in this prison were rejected as manifestly ill-founded.

• Assessment: no individual measure therefore seems necessary.

General measures:

Information is awaited on the possibility of carrying out alterations in Fresnes prison so that prisoners with disabilities may move around and in particular leave their cells independently.

7508/02            L.L., judgment of 10/10/2006, final on 12/02/2007

The case concerns an infringement of the applicant's right to respect for his private and family life (violation of Article 8) on account of the production and use in divorce proceedings of documents from his medical records. The European Court held that it was only on a subsidiary basis that the courts had referred to the medical report at issue in support of their decisions and that therefore the interference with the applicant's right to respect for his private life was not was not “necessary in a democratic society”.

Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage. Moreover, the Court stated that, under sections 1440 and 1441 of the new Code of Civil Procedure, anyone may ask the registry of the tribunal concerned, without justifying any particular interest, for a copy of any judicial decision in civil, social or commercial matters, and that the registry must deliver a copy or extracts of the decision (§ 33).

• Information is awaited on measures envisaged to ensure that information regarding the applicant's private life is not given if a copy of a judgment concerning the applicant were requested.

General measures:

• Dissemination of this judgment to the Cour de cassation and to civil courts is awaited. Moreover information is awaited on measures envisaged to provide sufficient safeguards as regards the use in divorce proceedings of data concerning the parties' private lives (§47).

62740/00          Matheus, judgment of 31/03/2005, final on 01/07/2005[32]

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

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

• Assessment: No further individual measure seems necessary.

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

The national courts held that such refusal was illegal in the present case (see the case-law of the Conseil d’Etat mentioned in the European Court’s judgment: if refusal by the police to execute a judicial decision is not justified on serious grounds of law and order – as in this case – it is illegal, and the state is liable for a serious offence (faute lourde)).

Hence, the violation does not appear to have its origin in the law itself but in its implementation by the relevant authorities.

• In this context, information has been requested 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 prefects) would seem appropriate.

• Information provided by the French authorities (letter of 6/07/2007): The Ministry of the Interior was to be requested to confirm that the Matheus judgment had been sent out to the authorities concerned.

34043/02          Mattei, judgment of 19/12/2006, final on 19/03/2007

73529/01          Miraux, judgment of 26/09/2006, final on 12/02/2007[33]

These cases concern the unfairness of certain criminal proceedings (closed respectively in 2002 and 1999) against the applicants, because the charges against them were changed at a late stage in the proceedings without the necessary procedural guarantees, respectively before the Court of Appeal (Mattei) and the Court of Assizes (Miraux) (violations of Article 6§1 and 3 a and b). The European Court did not contest that the courts concerned might change the charges but underlined the right of the accused to be informed of such changes “with extreme care”, which was not done in these cases. The Court thus found that the applicants were not in a position to prepare and present their arguments regarding the new charges and their consequences, including the potential sentences.

Individual measures: The applicants may request re-examination of their convictions under Articles L 626-1 ff. of the Code of Criminal Procedure. In both cases, the European Court recalled that in principle, this is an appropriate means to redress the violation. In the Mattei case; the Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage irrespective of the applicant’s claims. In the Miraux case, the Court awarded just satisfaction in respect of all heads of damage taken together.

• Assessment: no further individual measure appears necessary.

General measures: These cases present similarities to that of Pélissier and Sassi against France (judgment of 25/03/1999), in section 6.2 in view of the publication and dissemination of the judgment, so that courts may adapt their practice to the requirements of the Convention on the issue, and in view of the adaptation of the case-law of the Court of Cassation (see below). In the Mattei case, the Court found significant the government's contention that the Court of Cassation has referred since 2001 to Article 6§1 in the part of its judgments concerning “the Law”, and stated that as a rule it is for criminal judges to ensure that the charges truly correspond to the facts, but this implies an obligation to place the accused in a position to defend himself in respect of the new charges envisaged. However, it would appear that this new case-law is not always applied and, in any case, when the Court of Cassation delivered its judgments, in particular in the Mattei case (2002), it did not apply this case-law, although it was subsequent to the Pélissier and Sassi judgment.

• Information is awaited to the effect that the 2001 case-law has been confirmed and that these judgments have been brought to the attention of the Court of Cassation and of criminal Courts. Information is also requested on other measures possibly taken or envisaged by the French authorities.

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

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

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

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

Individual measures: It may be noted that in its (partial) decision on the admissibility of this application, the European Court rejected the applicants' complaint that the criminal proceedings had been unfair on account of the use of the recordings as evidence against them (complaint under Article 6§1) for non exhaustion of internal remedies.

• Information on the fate of the recordings would be useful

General measures: After the events a law was passed containing provisions relating to the recording of conversations in the context of proceedings concerning facts of organised crime (law No.2004-204 of 09/03/204, “adapting justice to the evolutions of crime”). On 14/06/2006, the Secretariat wrote to the French authorities requesting information concerning the exact scope of the new provisions, in order to assess the need to adopt further measures.

• Information is requested as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may be applied to facts similar to those of the Wisse case. If it cannot apply, information would be required as to the measuress the French authorities envisage to avoid the repetition of the violation found in this case.

59842/00          Vetter, judgment of 31/05/2005, final on 31/08/2005[34]

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

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

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

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

Individual measures: The applicant may apply for the re-opening of his appeal on the basis of Articles L 626-1 ff of the Code of Criminal Procedure.

• Information has been awaited since December 2005 concerning the fate of the recordings.

General measures:

            1) Violation of Article 8: On 19/12/2005, the Secretariat wrote to the French authorities drawing their attention to the conclusions of the European Court in this judgment (inter alia § 26) and inviting them to draw up a plan of action for its execution.

Since this letter was sent, the Committee of Ministers has examined the case of Wisse against France (Application No. 71611/01, Section 4.2) in which judgment the Court mentions the Vetter judgment and the entry into force, subsequent to that judgment, of Law No. 2004-204 of 9/04/2004, the intention of which is to adapt the justice system to certain developments in crime. This Act contains provisions concerning the use of sound recordings in proceedings to establish facts relating to organised crime (Article 706-9 of the Coe of Criminal Procedure).

• Information is requested as to whether and to what extent Law (No. 2004-204 of 9/04/2004) may applied to facts similar to those of the Vetter case. If it cannot apply, information would be required as to the measures the French authorities envisage to avoid the repetition of the violation found in this case.

            2) Violation of Article 6: This case presents similarities to those of Reinhardt and Slimane-Kaïd (22921/93, Resolution DH(98)306) and Slimane-Kaïd No. 2 (29507/95, in Section 6.2 following measures taken by the respondent state).

21324/02          Plasse-Bauer, judgment of 28/02/2006, final on 28/05/2006[35]

This case concerns the failure to enforce a court decision awarding the applicant visitation rights in respect of her daughter and laying down the conditions for the exercise of this right (violation of Article 6§1). An appeal court judgment of 1997 required the presence at visits of a third party designated by an association. In point of fact, the association concerned found it materially impossible to fulfil its mission, and accordingly the judgment was not enforced.

The European Court held that the national authorities had not made all sufficient efforts which could reasonably be expected to uphold the terms and conditions of the visiting rights. In particular, they should have checked beforehand whether the association was in a position to carry out the public authorities’ mandate to ensure the conditions for the exercise of visiting rights as laid down in the appeal court judgment, so that it could be enforced.

Individual measures: The applicant’s daughter came of age in 2004. The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant.

• Assessment: in view of these circumstances, no individual measure seems necessary.

General measures:

• Information has been requested as to measures taken or envisaged to ensure that, in the future, the terms and conditions of visiting rights laid down in court decisions are respected. In any event, it appears necessary to publish this judgment and send it out to the competent authorities, so that they may draw all the consequences.

• Information has been provided by the French delegation, which is being assessed.

16846/02          Labergere, judgment of 26/09/2006, final on 26/12/2006

The case concerns a violation of the applicant’s right of access to a court (Article 6§1). In 2001, the applicant’s appeal against an Assize Court judgment convicting him and sentencing him to 18 years’ imprisonment was declared inadmissible by the Cour de cassation on the ground that it had been lodged after the expiry of the deadline (10 days from the delivery of the judgment, for the accused, see Article 380‑1 ff. of the Code of criminal procedure).

But in the particular circumstances of the case and given the importance of the appeal for the applicant, the decision of the Court of cassation was excessively rigorous. In reaching this conclusion, the European Court took into account in particular the fact that for seven out of the 10 days during which the applicant might have appealed, he had been held in a psychiatric hospital, and that doubts existed concerning his lucidity not only while he was hospitalised, but also before and after (see §§ 20 to 25 of the judgment).

Individual measures: The applicant may ask for the reopening of his case in application of Articles L 626-1 ff. of the Code of Criminal Procedure. He made no request for a just satisfaction before the European Court.

• Assessment: no further measure seems necessary.

General measures: Given that the violation in this case was due to the manner in which the law was implemented, it would be appropriate to publish the European Court’s judgment end to bring it to the attention of the Cour de cassation in order to ensure that, in the future, the law will be implemented in accordance with the Convention as interpreted in the present judgment

Furthermore, it is recalled that on a related question (admissibility of an appeal on points of law to the Cour de cassation, lodged out of time, also in very particular circumstances; see the Tricard case, Resolution CM/ResDH(2007)52 adopted at the 992nd meeting, April 2007), the French authorities indicated that the criminal chamber of the Cour de cassation now admits that appeals may be accepted even after the expiry of the time limit if, “due to a case of force majeure or to an insuperable obstacle beyond his/her control, the complainant was unable to conform to the time limit”.

• Information is awaited on the dissemination of the judgment of the Cour de cassation and its publication, as well as on the possibility of applying the general measures adopted in the Tricard case to the legal problem at issue in the Labergere case.

• Information has been provided by the French delegation on the dissemination of this judgment. Furthermore, general information relating to the mechanism of publication and dissemination of the judgments of the European Court of Human Rights was provided by the delegation by letter of 26/10/2007. This information is currently being assessed

39001/97          Maat, judgment of 27/04/2004, final on 27/07/2004[36]

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. According to the latest information at the Secretariat’s disposal, the applicant’s lawyer has 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). At the 948th meeting (December 2005) the French delegation stated orally that, given the direct effect granted to the Convention by the Cour de cassation and the developments in its case-law described above in similar cases further similar violations should not occur.

• Further information has thus been requested, in particular on the publication / dissemination of the judgment to the relevant authorities. In this context, it can be noted that general information relating to the mechanism of publication and dissemination of the judgments of the European Court was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

            2) Violation of Article 6§3c.: This case presents similarities to that of Poitrimol (Section 6.2), in which the examination of general measures has been 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.

58675/00          Martinie, judgment of 12/04/2006 - Grand Chamber

This case concerns the violations of the right to a fair trial of the applicant, a former accountant in the Bayonne Lycée and the French Federation of Basque Pelota (CNEA), a body which had no separate legal personality and was attached to the school's budget. In October 1997, the Aquitaine Regional Audit Office considered that the applicant owed the school a sum corresponding to the payments he had made as the school's public accountant between 1989 and 1993 to the CNEA's director and himself, acting as its secretary general. At appeal, by its judgment of 20/10/1998, the Court of Audit reduced that amount to FRF 191 900 (29 117,76 euros). In October 1999, the applicant's appeal on points of law lodged before the Conseil d'Etat was declared inadmissible.

The European Court found two violations of Article 6§1 as regards the proceedings before the Audit Court, since the applicant could not request a public hearing before this court and there was an imbalance detrimental to him due to the Prosecutor's position in these proceedings.

Moreover, the European Court found a violation of Article 6§1 because of the Government Commissioner's participation in the deliberations of the bench of the Conseil d'Etat, and confirmed its case-law in the Kress judgment (judgment of 07/06/2001, Grand Chamber).

Individual measures: On 17/06/2001, the Minister of Finance granted the applicant partial remission of the surcharge levied by the Court of Audit, in the sum of 21 053,91 euros, with 762,25 euros thus remaining payable by him (§ 12 of the judgment). Before the European Court, the applicant claimed reimbursement of that sum plus statutory interest as well as just satisfaction for non-pecuniary damage.

The European Court considered it could not speculate as to the outcome of the proceedings had there not been a breach and rejected the applicant's claims for compensation for pecuniary damage. As to the non-pecuniary damage, it found it was sufficiently made good by its finding of the violation.

• Assessment: The applicant does not seem to suffer any serious consequence of the violation, therefore no additional individual measure is required.

General measures:

            1) Violations of Article 6§1 during the proceedings before the Court of Audit: As proceedings before regional audit offices are conducted in camera, the European Court considers it essential that public accountants are able to request a public hearing before the Court of Audit in appeals against first-instance judgment levying a surcharge against them.

The European Court was critical of the Prosecutor's position in the impugned proceedings: as a matter of fact, the Prosecutor was present at the hearing, was informed beforehand of the reporting judge's point of view, heard the latter's submissions at the hearing, fully participated in the proceedings and could express his own point of view orally without being contradicted by the accountant. That imbalance was accentuated by the fact that the hearing was not public and therefore conducted in the absence of any scrutiny either by the accountant concerned or by the public.

•Information provided by the French authorities (letters of 29/08/2006 and 25/04/2007): The interim measures taken by the First President of the Court of Audit have been in force with regard to financial courts since 16/05/2006. A public hearing is now organised before any repayment may be ordered, just as it was for any appeal against a repayment order. The reporting judge does not take part in deliberations, nor does the prosecution. The investigation report is no longer confidential; it is placed on file together with the conclusions of the prosecution, and the parties may consult the file, any element of which may be disclosed to them.

A working group has been set up within the financial courts to draft legislative and regulatory texts to give definitive effect to measures required since the European Court’s judgment in Zervudacki (Application No. 73947/01 in Section 4.2 at the 997th meeting and another recent judgment (Siffre, Ecoffet and Bernardini, Application No. 49699/99 in Section 4.2).

A draft text should be transmitted to the competent authorities by mid-year.

• Information is awaited on the state of progress of this draft and a copy of the draft text would be helpful.

2) Violation of Article 6§1 due to the Government Commissioner's participation in the deliberations of the bench of the Conseil d'Etat: General measures were adopted following the judgment in the Kress case (see Resolution CM/ResDH(2007)44 in the case of Kress against France and in 5 other cases concerning the right to a fair trial before the Conseil d'Etat).

3 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[37]

16043/03          Achache, judgment of 03/10/2006, final on 03/01/2007

67847/01          Lecarpentier and other, judgment of 14/02/2006, final on 14/05/2006[38]

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) [39]

66018/01          Vezon, judgment of 18/04/2006, final on 13/09/2006[40]

These cases concern the retroactive application of new legislation during pending judicial proceedings. Each of the applicants, having contracted bank loans between 1987 and 1989 and finding themselves subsequently in financial difficulty, sought annulment of their loan agreements on the ground that a formal requirement (inclusion of an amortisation schedule in the initial loan proposal) had not been respected by their respective banks. The annulment sought would have led to the reimbursement of sums already paid in execution of the contract. The applicants’ claims were rejected because of the courts’ retroactive application of Law No. 96-314 which provides that, except for decisions which have already become final, loan proposals made before 31/12/1994 without amortisation schedules are valid, provided that certain other conditions are respected.

In the cases of Cabourdin, Saint-Adam and Millot and Vezon, the European Court found that the proceedings had been unfair, because Law No. 96-314, which provides for final and retroactive settlement of disputes between private individuals before the national courts, had not been justified by compelling grounds of the general interest (violations of Article 6§1). In the Lecarpentier and Achache cases, the European Court found that the law had placed an “abnormal and excessive burden” on the applicants and had interfered disproportionately with their right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

            1) In the Cabourdin, Lecarpentier, Vezon and Achache cases: The European Court held that it could not speculate as to whether the outcome of the proceedings would have been different had the violation of the Convention not taken place. However, it also said, in the Cabourdin and Vezon cases, that it did not consider it unreasonable to think that the applicant had suffered a genuine opportunity loss and, in the case of Lecarpentier and Achache that the applicants has suffered a breach of their right to the peaceful enjoyment of their property. In these circumstances and deciding on the applicants’ requests for both non-pecuniary and pecuniary damages, the Court granted them just satisfaction in respect of all heads of damage taken together.

            2) In the Saint-Adam and Millot case: The European Court found that the question of the application of Article 41 is not ready for decision (pecuniary damage) and reserved it. The Court delivered its judgment under Article 41 on 26/04/2007. The Court said that the respondent state was to pay the applicants 60 000 euros in respect of pecuniary damage, plus any amount that could be chargeable in respect of taxes.

General measures:

• Information provided by the French authorities: The European Court’s judgment in the Vezon case has been sent to the Principal Public Prosecutor of the Cour de cassation as well as to the Principal Public Prosecutor of the Court of Appeal (letter of 4/01/2007). The French authorities, and in particular the Ministry of Economy and Finance, are holding exchanges of views on the use of laws designed to legalise existing practices (lois de validation) and on measures necessary to avoid new violations (letter of 25/06/2007).

• Information is awaited on the results of these exchanges of views and on the measures envisaged to avoid further violations.

20127/03+        Arnolin and others and 24 other cases, judgment of 09/01/2007, final on 09/04/2007[41]

31501/03+        Aubert and others and 8 other cases, judgment of 09/01/2007, final on 23/05/2007[42]

These cases concern violations of the applicants’ right to a fair trial (violation of Article 6§1 in the case of Arnolin and others) and, in the case of Aubert and others, a violation of the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1) on account of the enactment and the application of a law aiming at solving proceedings that were pending. The applicants, all care staff, brought action before the French labour courts against their employers, specialised institutions run by associations under the aegis of the state, regarding the rate of pay for night duty. While most of their cases were still pending, Law No. 2000-37 of 19/01/2000 entered into force. It was applicable to the pending cases and overruled the Court of Cassation’s case-law which was more favourable to them.

Individual measures: The Court awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damage (1 508 000 euros in total in the case of Arnolin and others, 961 000 euros in the case of Aubert and others). The applicants do not seem to suffer any consequences of the violation not covered by the just satisfaction awarded.

• Assessment: no further measure thus seems necessary.

General measures:

• Information provided by the French authorities in the framework of the examination of the Cabourdin group: The French authorities, and in particular the Ministry of Economy and Finance, are holding exchanges of views on the use of laws designed to legalise existing practices (lois de validation) and on measures necessary to avoid new violations (letter of 25/06/2007)

• Information is awaited on the results of these exchanges of views and on the measures envisaged to avoid further violations.

954/05              Chiesi S.A., judgment of 16/01/2007, final on 16/04/2007[43]

The case concerns a violation of the right to a fair trial (violation of Article 6§1) resulting from the enactment of a law intended to resolve pending disputes and the application of this law to a dispute between the applicant company and public authorities. The applicant company had brought administrative proceedings following a decision by the Minister of Health to reduce the rate of reimbursement in respect of certain pharmaceutical products - in particular a medicament manufactured by the applicant - from 65% to 35%. While the proceedings were in progress, Law No. 2003-1199 on social-security funding for 2004 entered into force. This Law contained a provision applicable to proceedings in progress and opposed the previous case-law of the Conseil d'Etat, which had benefited those in the applicant company's situation.

The Court also found that the public authorities would not have been prevented from achieving the aim pursued in this case if pending proceedings had been excluded from the scope of the Law, but the equality of arms in proceedings in progress would have been respected.

Individual measures: The Court dismissed the applicant's request for pecuniary damage, seeing no link between the violation found and the pecuniary damage claimed, but awarded just satisfaction in respect of non-pecuniary damage.

• Assessment: bilateral contacts are under way to determine whether further measures are required.

General measures: It will be necessary to publish and disseminate the European Court's judgment.

• Information provided by the French authorities in the framework of the examination of the Cabourdin group: The French authorities, and in particular the Ministry of Economy and Finance, are holding exchanges of views on the use of laws designed to legalise existing practices (lois de validation) and on measures necessary to avoid new violations (letter of 25/06/2007).

• Information is awaited on the results of these exchanges of views and on the measures envisaged to avoid further violations.

                       - Cases concerning freedom of expression

54968/00          Paturel, judgment of 22/12/2005, final on 22/03/2006[44]

71343/01          Brasilier, judgment of 11/04/2006, final on 11/07/2006

64016/00          Giniewski, judgment of 31/01/2006, final on 01/05/2006

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

These cases concern breaches of the freedom of expression of the applicants in relation with defamation proceedings carried against them, between 1994 and 2002, under Articles 29, 31 and 32 of Law of 29/07/ 1881 on the freedom of the press (violations of Article 10).

In the Paturel case, the applicant was criminally convicted on the basis of certain extracts of a book he had published in 1996, denouncing the alleged excesses of an anti-sect movement. The European Court held in particular that the French courts exceeded their margin of appreciation by requiring the applicant to prove the truth of the impugned extracts (which in fact constituted value judgments, relying on a sufficient factual basis) whilst at the same time systematically rejecting the numerous documents he provided to this end and constantly insisting on his alleged partiality and personal animosity, deduced mainly from the fact that he belonged to an association alleged by the civil party to be a sect.

In the Brasilier case, the applicant was acquitted by the criminal courts but was found liable in tort, for failing to adduce evidence for his allegations, expressed on banners and in leaflets, against a political opponent.

The European Court found in particular that the value judgments expressed by the applicant were sufficiently grounded in fact, but also that they concerned a politician, as such, and were uttered by an electoral opponent.

In the Giniewski case, the applicant was also acquitted by the criminal courts but held liable by the civil courts for having published an article concerning a Catholic doctrine and its possible ties with the Holocaust. The European Court considered in particular that this was not a text attacking religious convictions as such but rather presented the applicant's reflections as a journalist and a historian. The article had not been “gratuitously offensive” or insulting, the applicant had not sought to incite disrespect or hatred, and did not cast doubt in any way on clearly established historical facts.

In the Mamère case, the applicant, a politician (a member of the ecologist party “Les Verts”), was convicted for statements made during a television broadcast concerning a civil servant, then director of a public body responsible among other things for monitoring radioactivity levels in France following the Chernobyl nuclear accident. The European Court stated that anyone prosecuted for comments on a matter of general concern should be able to absolve themselves of liability by establishing that they had acted in good faith and, in the case of factual allegations, by proving that they were true. In the applicant’s case the comments in question had been value judgments as well as factual allegations. Accordingly, the applicant should have been offered both of these possibilities, but he was not. The Court was not convinced by the national court’s reasoning concerning the applicant’s lack of good faith, seeing that it had been based entirely on the immoderate nature of his comments. But as regards the factual allegations, since the acts criticised by the applicant had occurred more than ten years before, Article 35 of the 1881 Act absolved him from the obligation to prove the truth of his comments.

Individual measures:

            1) Paturel and Mamère cases: the applicants were ordered to pay fines and damages. In the Paturel case, the just satisfaction awarded by the European Court not least covers the fine imposed on the applicant in the proceedings at issue. In the Mamère case, the applicant did not apply for just satisfaction before the European Court.

During the year following the judgment of the European Court of Human Rights (Article L 626-3 of the code of criminal proceedings), the applicants could ask for the decision at issue to be re-examined. The French authorities indicated that on 11/12/2006, Mr. Paturel had not lodged such a request (but there remained time for him to do so).

• Information is awaited on whether the applicants’ convictions appear in their criminal record and whether there are other negative consequences of the violation. 

            2) Brasilier and Giniewski cases: Neither applicant presented any claim in respect of possible damages before the European Court.

• No measure appears to be necessary, given that the applicants were ordered to pay nominal damages of one French franc to the civil party.

General measures:

            1) In all these cases (except point 2 below) the Court criticised the reasons on the basis of which the national courts convicted the applicants for defamation (i.e. the application they made of the relevant provisions).

• Information is awaited as to the measures taken or envisaged to avoid new, similar violations. In any case, the publication and the dissemination of the judgments of the European Court to the authorities concerned appear to be necessary. 

            2) Impossibility of proving the exceptio veritatis for facts which occurred more than ten years before (Mamère case): this resulted from the wording of the law (see above), according to which “it is always possible to prove the truth of defamatory facts, except (…) b) when the imputation concerns facts which occurred more than ten years before” (unofficial translation).

• Information is awaited as to the measures taken or envisaged to ensure that, in similar cases, it is possible to prove the truth of the facts even if the facts referred to occurred more than ten years before (see in particular §24 of the Mamère judgment).

36436/97          Piron, judgment of 14/11/00, final on 14/02/01

42928/02          Epoux Machard, judgment of 25/04/2006, final on 13/09/2006

These cases concern violations of the applicants' right to the peaceful enjoyment of their possessions, due to the particularly lengthy duration (more than thirty years in each case) of certain consolidation proceedings (violations of Article 1 of Protocol No. 1). The European Court recalled that the duration of such proceedings “is material, together with other elements, in determining whether the disputed transfer was compatible with the guarantee of the right of property”.

In the Piron case, the Court also found that the judicial proceedings had been excessively long, before administrative courts, concerning the consolidation proceedings (violation of Article 6§1).

Individual measures:

            1) Piron case: Following the cancellation on 29/03/2002 by the Conseil d’Etat of the decision of 27/06/2000 on the applicant’s compensation by the competent authority (commission nationale de réaménagement foncier), the latter re-examined the case on 16/12/2003 and, in a motivated decision taken in the light of the report of a new expert and the oral observations of the applicant, increased the compensation from 28 730.85 to 93 741 euros. The decision indicates that the new amount takes into consideration “among other things the abnormal delay since the first decision of justice concerning the dispute (…), and the subsequent loss of productivity”. On 10/08/2005, the Conseil d’Etat rejected the applicant’s appeal against the decision of 16/12/2003. Whether or not the applicant has started proceedings before the civil courts is currently being checked.

• Information would be useful on the latter point.

            2) Epoux Machard case: It transpires from the European court's judgment that the proceedings are closed and that no question arises concerning the execution of the internal decisions. The European Court compensated the non-pecuniary damage resulting from the length of the proceedings and dismissed the applicants' claims relating to pecuniary damage, in view of the absence of any causal link with the violation found.

• Assessment: Thus, no individual measure is necessary.

General measures:

• Information provided by the delegation: on 23/02/2005 the law on Promotion of the Development of Rural Areas was adopted. This law simplifies and decentralises land-use development processes, provides for the abolition of the relevant national authority and makes it easier to obtain compensation where it is impossible to alter the division of land. By letter of 06/07/2007, the delegation indicated that the Office of the Government’s Agent would question the Ministry of Agriculture on the concrete improvements brought by this law in order to avoid new, similar violations of the Convention.

• Further information is awaited on this issue.

- Cases of length of proceedings concerning civil rights and obligations before financial (administrative) courts

53929/00          Richard-Dubarry, judgment of 01/06/2004, final on 01/09/2004

49699/99+        Siffre, Ecoffet and Bernardini, judgment of 12/12/2006, final on 12/03/2007, rectified on 27/03/2007[45]

This case concerns the excessive length of certain proceedings concerning civil rights and obligations before financial courts (violations of Article 6§1). In the case of Richard-Dubarry, the four sets of proceedings concerned began in November and December 1994 and were still pending when the European Court delivered its judgment (nearly 9½ years). In the case of Siffre, Ecoffet and Bernardini, the proceedings lasted from 1995 to 2000.

Individual measure:

1) Case of Siffre, Ecoffet and Bernardini: No individual measure is necessary, the proceedings being closed.

2) Case of Richard-Dubarry: the delegation provided detailed information on the progress of the proceedings.

In two of the sets of proceedings (those of the Association du personnel de la commune de Noisy-le-Grand and the Association Noisy communication), the Cour des comptes (the highest court of audit) had acted to accelerate the proceedings.

In particular, after having annulled on 21/12/2006 several early judgments of the Chambre régionale des comptes (regional audit court) in strict application of the European Court’s case-law in the Martinie case (judgment of 12/04/2006), the Cour des Comptes decided to consider itself the merits of the cases, rather that sending them back to the Chambre régionale des comptes, so as to reduce the length of the proceedings.

In the two other sets of proceedings concerned (those of the Association centre culturel Michel Simon and the Association Michel Simon Arts Production), after the European Court’s judgment, the Chambre régionale des comptes delivered judgments in 2005 and 2006. Appeals lodged by the applicant against these judgments are pending before the Cour des comptes.  

• Information would be useful on the progress of these proceedings.

General measures:

1) Excessive length of proceedings:

• Information provided by the French authorities on measures taken recently in this respect:

- Article R 112-2 of the Code of Administrative Justice, as worded following a Decree of 09/12/2005, provides that any party considering that proceedings before an administrative tribunal or court of appeal are excessively lengthy may seise the Head of the Standing Inspectorate of Administrative Courts (mission permanente d’inspection des juridictions administratives), who may make recommendations to redress the situation.

- The Head of the Standing Inspectorate also receives copies of all administrative or judicial decisions allocating compensation for the damage caused by the excessive length of proceedings before the administrative courts. If he considers it appropriate, he may bring any shortcoming in the provision of justice to the attention to the attention of court presidents.

• Information has been requested as to whether or not there is a general problem of excessive length of proceedings before financial courts. In this context it would be helpful to know whether the measures taken regarding the excessive length of proceedings before administrative courts (Final Resolution ResDH(2005)63, adopted on 18/07/2005, SAPL case and other cases) are also valid for financial courts.

In this context, the Secretariat notes that in the Martinie case (section 4.2) the delegation indicated that, upon request of the President of the Cour des comptes, an internal working group of the audit courts has been set up with a view to preparing draft legislative and statutory provisions in order to draw the consequences of the Martinie judgment. This group held that the revision of the judicial procedures of the Cour des comptes and of the Chambres régionales et territoriales des comptes should cover “the entirety of the proceedings before financial courts to determine de facto financial responsibility, of which the judgment in the case of Siffre, Ecoffet and Bernardini against France emphasised the incompatibility with the requirement of “reasonable time”.

• Further information in this respect would appear necessary.

            2) Effective remedy to complain of the excessive length of proceedings:

• Information provided by the French authorities:  The Cour des comptes confirmed the information previously provided by the delegation that the effective remedy for complaints about the excessive length of administrative proceedings – generally speaking – also applies to proceedings before the financial courts.

Since then reminders and details have been provided with regard to this remedy. In the Broca and Texier-Micault judgment of 21/10/2003, the European Court found (on the basis of the established case-law of the national courts) that there exists an effective remedy in respect of the excessive length of proceedings before administrative courts. The delegation added that, since 01/09/2005, this remedy has been included in Code of Administrative Justice (Article R 311-1, paragraph 7) and, since then, falls under the exclusive jurisdiction of the Conseil Etat. The delegation also stated that accordingly, applications lodged on this basis may be settled promptly, avoiding any excessive length of proceedings to engage the state’s responsibility.

• Assessment: No further measure would appear necessary.

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

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

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

This case concerns the excessive length of two sets of proceedings concerning civil rights and obligations before military pensions tribunals of incapacity (violations of Article 6§1). In the Mocie case, the first set of proceedings began in 1988 and was still pending when the European Court delivered its judgment (14 years and 10 months); the second began in 1990 and ended in 1998 (almost 8 years).

The European Court underlined that in view of the applicant’s lack of means and the deterioration of his health, his claims for benefits were vital to him and the authorities should have been particularly diligent in dealing with them.

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

Individual measures: concerning the progress of the first set of proceedings in the Mocie case: on 28/02/2006, the Cour régionale des pensions of Poitiers (appeal court) accepted the applicant’s requests. In July 2007, the Secretariat has been informed that the applicant has appealed on points of law to the Conseil d’Etat.

• Information is awaited on the progress of this set of proceedings and, if they are still pending, on their acceleration, in the light of the particular diligence required.

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

General measures: The proceedings before military pensions tribunals are particular and take place partly before civil courts, and partly before administrative courts. Thus, reference should be made: to the measures taken to avoid excessive length of civil proceedings (see the case of C.R. in Section 6.1 for the 940th meeting - October 2005) and to the measures taken to avoid excessive length of administrative proceedings, including before the Conseil d’Etat (see the Raffi case, in Section 6.1). It should be added that, since Law No. 2002-73 of 17/01/2002 (“Loi de modernisation sociale”), the appeals on points of law against decisions delivered by the Cours régionales des pensions (appeal courts) are made before the Conseil d’Etat, the Commission spéciale de cassation des pensions (Special Pensions Appeals Commission) having been suppressed (compare with Final Resolution ResDH(98)361 in the Sass case).

• Information has been provided by the French delegation on the dissemination of both judgments. Furthermore, general information relating to the mechanism of publication and dissemination of the judgments of the European Court of Human Rights was provided by the delegation by letter of 26/10/2007. This information is currently being assessed.

- 6 cases against Georgia

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

68622/01          Danelia, judgment of 17/10/2006, final on 17/01/2007[46]

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

The Danelia case also concerns the absence of an investigation by the authorities to determine the possible responsibility of agents of the Ministry of the Interior in alleged torture suffered by the applicant while in police custody (violation of Article 13); this case also concerns the fact that it was impossible for the applicant to be examined by independent experts (violation of the procedural aspect of Article 3).

Individual measures: Mr Davtyan was released in September 2005. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained. Mr Danelia is no longer in detention. The European 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 has been requested from the Georgian authorities as to whether a fresh investigation is possible into the events at issue in these two cases.

By letter of 27/03/2007, the Georgian authorities mainly reiterate the arguments relied on before the Court in the framework of the complaint concerning Article 3 and add that the applicant, Mr Davtyan, did not lodge an appeal against the prosecutor's decision of 10/12/1999 refusing an investigation. For that reason they conclude that there is no legal basis to start the investigations in the Davtyan case again. As regards the case of Danelia, no reply has been received to date.

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

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

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

• Fresh information is awaited on individual measures in these cases.

General measures:

• Information provided by the Georgian authorities (letter of 27/03/2007): Several measures have been taken to eliminate torture and ill-treatment during detention.

Article 92 of the Law on Imprisonment provides that every person who enters the prison shall undergo medical examination. Any information regarding injuries is noted in so called “Krebsi” (Daily Notes) of the Penitentiary Department which is automatically transferred to the Unit Supervising the Penitentiary Department and Human Rights Protection Unit of the Prosecution Service of Georgia. In accordance with Article 263 of the Code of Criminal Procedure, this information is enough automatically to start a preliminary investigation. An investigation may also be initiated on the basis information received from physical or legal persons, local government bodies, officials, operative-investigative authorities and mass media.

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

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

• Assessment: A copy of the texts quoted in the letter mentioned above (in particular an English or French version of the articles of the CCP) would be useful in order to finalise the evaluation of this information; information is awaited on the possibility for individuals to have a medical examination by independent experts; lastly the confirmation of publication and dissemination of these two judgments is awaited.

74644/01          Donadze, judgment of 07/03/2006, final on 07/06/2006

The case concerns a violation of the applicant's right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts seized of his case in 2000. His claims against the repeated failure between 1991 and 2000 of his employer, a public administration, to provide him with the office facilities he needed for his work and to pay him the salary supplements he was entitled to, were rejected.

The European Court stressed that the Georgian courts had rejected the applicant's claims on the only basis of the arguments of the defendant administration, without any serious or in-depth examination of the applicant's arguments and evidence, thus placing him at a disadvantage as compared with the defendant administration (violation of Article 6§1).

Individual measures: The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant has expressed no further request for specific individual measures before the Committee of Ministers. Accordingly, such measures do not appear to be needed in this case.

• Nevertheless, as this case raises the issue of unfair proceedings in Georgia for the first time, information would be useful concerning whether, in Georgian law, it is possible to re-examine proceedings that have violated the Convention, in accordance with Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. This request was recalled by letter of 17/04/2007.

General measures: Since the facts at the origin of this case, the judicial system has changed and a comprehensive reform is under way, in co-operation with the Council of Europe, to bring the Georgian judicial system fully in conformity with the requirements of the European Convention. In particular, the judicial reform establishes a sequential order of degrees of instance, modifies jurisdictions, institutes magistrate judges, strengthens the High Council of Justice, modifies the disciplinary administration of justice and mechanisms for fighting against corruption, increases the professionalism of judges by modifying the rules on access and establishing special training programmes, increases judicial budgets and modernises the courts. This reform is planned to be completed in 3-5 years.

Awareness-raising and training activities for Georgian judges and prosecutors are envisaged in cooperation with the competent Council of Europe services and the Donadze judgment should be taken into account during this training.

• Information is awaited in English or in French, about the current state of this reform and the possible provisions under the new system to guarantee the fairness of civil proceedings, specially those involving administrative entities, and concerning, in particular, the assessment of arguments of the parties by courts and the reasoning accompanying decisions.  This request was recalled by letter of 17/04/2007.

• Information is also awaited on additional measures required: Translation and publication of the judgment of the European Court and dissemination to all relevant civil courts.

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

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

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

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

• Information provided by the Georgian authorities (30/10/ 2007): To date the public authorities have been unable to ensure enforcement of the judgment of 21/11/2001 because it is impossible to establish the whereabouts of the debtor and because it seems that the debtor does not possess any goods (neither vehicle, nor immovable property, he is not registered as a private entrepreneur and has no bank account). Nevertheless, the public authorities are continuing their efforts to enforce the judgment of 21/11/2001.

• Assessment: information is awaited on further measures taken to execute the judgment of 21/11/2001.

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

• Publication of the Court's judgment and its dissemination to the ministries involved in this case seem necessary. Moreover, information on other measures envisaged to avoid repetition of the violation found is awaited

The Secretariat is awaiting the reply of the Georgian authorities to its initial-phase letter of 16/07/2007 inviting them to present an action plan for the execution of this judgment.

• Information provided by the Georgian authorities (30/10/ 2007): The European Court’s judgment has been translated into Georgian, published and disseminated to various state bodies. The government is currently working on a draft law concerning enforcement proceedings which will incorporate international standards. Moreover, structural changes are intended, to raise the effectiveness of the Enforcement Department. 

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

2507/03            “Amat-G“ Ltd and Mebaghishvili, judgment of 27/09/2005, final on 15/02/2006[47]

28537/02          “Iza” Ltd and Makrakhidze, judgment of 27/09/2005, final on 27/12/2005[48]

These cases concern violations of the applicant companies' right to a court on account of the administration's failure to enforce final domestic judgments (from May 2001 and December 1999 respectively) ordering the state to pay certain sums to the applicant companies (violations of Article 6§1). They also concern the lack of an effective remedy in this respect (violations of Article 13).

Finally, the cases concern violations of the applicant companies' right to the peaceful enjoyment of their property, as from 7/06/2002 (the date on which Protocol No. 1 entered into force with respect to Georgia) as a result of the failure to enforce the domestic judgments (violations of Article 1 of Protocol No. 1). The European Court noted that the non-enforcement of final judgments by the Georgian state budget institutions, on account of the limited budgetary resources, was a persistent problem, recognised by the domestic authorities.

Individual measures: The just satisfaction awarded by the European Court covers entirely the sums at issue in the unenforced domestic judgments and provides that the payment is tax-free. Given that the domestic judgments are still enforceable, the situation remains to be solved through appropriate procedures so as to avoid continuing violations of Article 6 on account of the failure to execute valid judicial decisions.

The Georgian authorities have stated that they cannot invalidate a domestic judgment, in particular when this judgment is in favour of the applicants (letter of 27/02/07)

A letter was sent to the Georgian authorities on 17/04/2007 recalling that they have the choice of the means to implement the European Court’s judgment and indicating measures adopted by other member states in similar situation.

• Information on measures taken or envisaged are awaited

General measures: In the framework of the examination of the “Iza” case, the Georgian authorities have been invited, by letter of 3/04/2006, to present an action plan for the execution of the judgment and their attention has been drawn in particular to the examples of other countries confronted with similar problems in the past (see, for example, Hornsby against Greece and Burdov against Russia as well in particular as CM/Inf/DH(2006)19-rev 2).

It should be noted that in the “Amat-G” case, the European Court indicated that the provisions enacted on 2/07/2004 by the Georgian government, introducing a mechanism for the gradual payment of outstanding debts of the state, did not satisfy the requirements of precision and predictability implied by the concept of law within the meaning of the Convention (§61 of the judgment).

By letter of 07/08/2006, the Georgian authorities indicated that an action plan was being prepared. They also confirmed that, in order to ensure that these judgments are effectively taken into account as soon as possible, both judgments have been translated into Georgian and published in the Official Gazette (Sakartvelos Sakanonmdeblo Matsne) as well as distributed to the appropriate State agencies, in particular: the Office of the Prosecutor General of Georgia, the Ministries of Interior, of Finances, of Defence, of Education and Sciences, of Economical Development, the Constitutional Court, the Supreme Court, the Parliament and the State Chancellery of Georgia. Furthermore, the judgments are available in Georgian on the website of the Ministry of Justice: http://www.justice.gov.ge/makrakhifze.pdf

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

The letter dated 17/04/ 2007 referred to above recalled that a long-term remedy should be found in order that all domestic judgments are implemented in the future. It gives examples of measures envisaged by other member states in similar situation.

• Information on measures taken or envisaged are awaited

- 121 cases against Greece

27695/03          Serifis, judgment of 02/11/2006, final on 02/02/2007[49]

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

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

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

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

General measures:

1) Violation of Article 3:

• Information is awaited onmeasures taken or envisaged to prevent similar violations.

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

                       - Cases concerning actions of police forces

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

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

1) The Makaratzis case concerns the authorities' failure in the exercise of their positive obligation to protect by law the applicant's right to life, in 1995 (violation of Article 2). The applicant failed to stop at a traffic light and again failed to stop when ordered to do so by the police, receiving gunshot wounds in a hot pursuit which got out of control. The European Court noted that the degeneration of this operation, described by police witnesses as “chaotic”, “was largely due to the fact that at that time neither the individual police officers nor the chase, seen as a collective police operation, had the benefit of the appropriate structure which should have been provided by the domestic law and practice”. At that time, policemen had no clear guidelines or criteria governing the use of force or weapons (§70 of the judgment).

The case also concerns the authorities' failure to investigate effectively the circumstances of the incident which had endangered the applicant's life. The Court particularly noted that “the Government were unable to identify all the officers who were involved in the shooting and wounding of the applicant” (§78 of judgment) (procedural violation of Article 2).

2) The Bekos and Koutropoulos case concerns the inhuman and degrading treatment of the two applicants, both of Roma origin, by policemen following their arrest and detention in custody in 1998 (substantive violation of Article 3) and the lack of an effective administrative or criminal investigation into the applicants' credible allegation of police ill-treatment (procedural violation of Article 3).

The case also concerns the authorities' failure in their duty to take all possible steps to investigate whether or not ethnic discrimination may have played a role in the events (violation of Article 14 in conjunction with Article 3 in its procedural aspect).

Individual measures:

            1) Makaratzis case: The European court awarded the applicant just satisfaction. He did not submit any further claim to the Committee.

• Information provided by the Greek authorities (letter of 10/10/2005): The Greek authorities informed the Committee that it could not be effective, as required by the Court's case-law (see §74 of the judgment), for the police to reopen the administrative investigation after ten years, partly because of the difficulty after such a long time of obtaining any new evidence as to the identity of the unidentified policemen who had taken part in the incident (i.e. apart from the 29 identified at the time) and partly because the relevant disciplinary and criminal offences have in the meantime been subject to prescription.

It is noted that following the administrative investigation, the public prosecutor instituted criminal proceedings against seven police officers. By judgment of 20/05/1999 of the Athens First-Instance Criminal Court the police officers were acquitted.

            2) Bekos and Koutropoulos case: An administrative investigation initiated in 1998 led to the fining by the Greek police of a police officer, who was also prosecuted and tried but acquitted in 2001 for lack of evidence. In 1999 and 2000 the applicants expressed their wish not to proceed with further prosecution of the policemen (§27). The European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage sustained.

General measures:

            1) Substantive violations of Articles 2 and 3: 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) On 24/07/2003 Law 3169/2003 entered into force, repealing earlier legislation on firearm use by the police. The new law contains specific, strict conditions for carrying and use of firearms by policemen who now have to undergo special tests before being issued with firearms and receive ongoing training. Policemen are now criminally liable in cases of unlawful use of firearms. Inter-ministerial decision No. 9008 of 14/07/2004 provided the establishment and conditions of operation of police shooting galleries, in accordance with Article 5§6 of Law 3169/2003. They will be divided into open and closed galleries and are expected to be established in all prefectures within six years. Finally, presidential decree 189/2005, adopted in accordance with Article 5 of Law 3169/2003, 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) On 3/12/2004 the Policemen's Code of Conduct (Presidential Decree 254/2004) entered into force. It contains useful guidelines for policemen's conduct towards all citizens, in accordance with international human rights principles. 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. The operation of police pursuits is regulated by Statutory Order No. 13/14.12.1993 of the Head of Police. In particular, Articles 2 and 4 of this order lay down the conditions and the sequence of these operations.

-           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.

(c) Finally, awareness-raising measures have been taken:

-           In June 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.

-           Circulars issued by the Head of the Greek Police: 1) Circular of 06/07/2005: disseminating the European Court's judgment in Makaratzis to all police units: the circular contained a summary of the Court's main findings and was accompanied by a translation into Greek of the judgment; 2) Circular of 10/12/2005 entitled The protection of human rights during police action: it concerns, inter alia, the presentation of pursued persons to the police and aims at making Greek police the constant guardian of a society of solidarity, coioperation, cohesion and justice, at the same time keeping it modern and efficient; 3) Circular of 24/05/06 making reference to the Bekos and Koutropoulos judgment: it recalled the fundamental domestic and European rules and provided guidelines for fighting racism, xenophobia and intolerance during police operations. The circular finally noted the commitment of the Head of the Greek Police to the continuous training, guidance and control of police forces in this field.

            2) Procedural violations of Articles 2 and 3 and violation of Article 14 in conjunction with Article 3 in its procedural aspect:

a) Presidential Decree 22/1996 was amended by Presidential Decree 3/2004. As a consequence, disciplinary investigations against policemen are now carried out by officers not working in the same unit. Also, a special committee has been established at the office of the Head of Police, mandated with putting forward concrete proposals on a possible amendment of the relevant disciplinary law, following examination of the Ombudsman's report on the issue of disciplinary examination of complaints against policemen.

• More information was requested on the development of the work of this committee.

• The Greek authorities provided information on this issue. This information is currently examined by the Secretariat.

b) The Policemen's Code of Conduct mentioned above (Presidential Decree 254/2004) 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).

c) An extract of the Court's judgment in Bekos and Koutropoulos was reproduced in the Circular of 24/05/06, issued by the Head of Police (see under (c) above). 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.

In this context it is noted that in 2001-2005 there were 86 disciplinary investigations against policemen; 11 of these cases resulted in finding disciplinary violations and penalties were imposed on the policemen responsible.

d) Finally, both judgments (translated into Greek) were promptly notified by the State Legal Council to the Ministry of Justice and subsequently to the President of the Court of Cassation and to the State Prosecutor for further dissemination to all judicial authorities. Both judgments have also been translated and published at the site of the State Legal Council (www.nsk.gr).

32186/02          Agga No. 3, judgment of 13/07/2006, final on 13/10/2006

33331/02          Agga No. 4, judgment of 13/07/2006, final on 13/10/2006

These cases concern the prosecution, convictions and sentencing to imprisonment (subsequently commuted to fines) under Article 175 of the Criminal Code (1997-2002), for having usurped the functions of a minister of a “known religion”, on the ground that in 1996 and in 1997 he had issued and signed messages in the capacity of the Mufti of Xanthi, following his election by Muslims in that area.

In both cases the European Court found that the applicant's convictions constituted an interference with his right, in community with others and in public, to manifest his religion in worship and teaching, which was not necessary in a democratic society (violations of Article 9).

Individual measures: The applicant is entitled to request the reopening of the criminal proceedings, following the European Court's judgments, under Article 525§1.5 of the Code of Criminal Procedure.

It is noted that the Court did not award any pecuniary damages given that the applicant failed to show that he had paid any amount as a fine (§§35 in both judgments).

General measures: These cases present similarities to those of Serif (judgment of 14/12/99, final on 14/03/00) and of Agga No. 2 (judgment of 17/10/02, final on 17/01/03 - it concerns the same applicant and similar facts) in which supervision by the Committee was concluded by Final Resolution ResDH(2005)88 (adopted on 26/10/05). The Committee took particularly into consideration the change of domestic case-law (especially by decisions and judgments of first-instance and appeal courts delivered in 2001 and 2002) interpreting Article 175 of the Criminal Code in the light of the European Court's case law. The Greek government had considered that the measures taken would prevent similar violations.

These positive developments have nonetheless proved insufficient to prevent new, similar violations in the present cases due to the failure of Greek criminal courts in 2000, and especially of the Court of Cassation in 2002, to give direct effect to the European Court's judgments (Serif and Agga No 2). Further general measures therefore appear necessary.

• Information was requested in particular on

(a) The publication and widest possible dissemination (possibly through a detailed circular) of the Court's judgment and its earlier relevant case-law to all competent prosecuting and judicial authorities;

(b) Measures for enhancing prosecutors' and judges' training in the Convention case-law (especially as regards Article 9);

(c) New examples illustrating direct effect granted to the case-law of the European Court by domestic courts, especially by the Court of Cassation, in similar cases.

• The Greek authorities provided information on the general measures. The Secretariat is examining this information. 

21091/04          Papa, judgment of 06/07/2006, final on 06/10/2006

The case concerns a violation of the applicant's right to a fair trial in that the Athens Assize court, in December 2003, decided, without providing a sufficient reasoning, not to award the applicant compensation, following his acquittal, for pre-trial detention lasting 430 days (violation of Article 6§1).

The European Court recalled that it had already criticised this practice of Greek courts (§14 of judgment).

Individual measures: The applicant is entitled to request reopening of the proceeding after the European Court's judgment, in accordance with Article 525A CCrP.

The European Court has awarded the applicant just satisfaction in respect of pecuniary and non‑pecuniary damage.

General measures: The case presents similarities to that of Anastassios Georgiadis, supervision of which by the Committee was concluded following the adoption by Greece (especially in 2001) of a number of legislative and other measures to prevent similar violations (see Final Resolution ResDH(2004)82, adopted on 22/12/04). It is noted in particular that Greek law, especially following the 2001 amendments of the Constitution and of the Code of Criminal Procedure, requires courts to provide detailed reasoning for all their decisions. The Greek authorities considered that those measures would prevent similar violations.

It is noted that the domestic judgment at issue in the present case dates from December 2003.

• Information was thus requested on further possible general measures envisaged or already taken by the Greek authorities (for example, wide dissemination of the Court's judgment to all criminal courts accompanied by a detailed circular; further training of criminal judges in the European Court's case-law especially as regards Article 6§1).

• The Greek authorities provided information on this issue. This information is currently being examined by the Secretariat.

20627/04          Liakopoulou, judgment of 24/05/2006, final on 23/10/2006[50]

36998/02          Efstathiou and others, judgment of 27/07/2006, final on 11/12/2006[51] [52]

77574/01          Zouboulidis, judgment of 14/12/2006, final on 14/03/2007[53] [54]

11801/04          Tsalkitzis, judgment of 16/11/2006, final on 26/03/2007[55]

The case concerns the violation of the applicant's right of access to court in that, in 2004, the Speaker of Parliament rejected a request by the Prosecutor before the Court of Cassation to lift the parliamentary immunity of a member of parliament, elected in 2000, against whom the applicant, a property developer, had lodged a complaint for blackmail, abuse of office and subornation, offences allegedly committed in 1997 when the parliamentarian had been mayor (violation of Article 6§1).

The European Court noted that in such cases the lack of a clear link with a parliamentary activity calls for a narrow interpretation of the notion of proportionality between the aim pursued and the means employed, especially when the restrictions of the right of access to a court emanate from a decision of a political organ (§49 of judgment). Besides, the Court considered that the suspension of every criminal proceeding against a member of parliament during their parliamentary mandate would result in a substantial amount of time elapsing between the commission of the acts complained of and the opening of criminal proceedings that would render the latter uncertain, particularly regarding evidence (§50 of judgment).

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

General measures: It is noted that according to Article 62§1 of the Constitution, during the parliamentary term the members of parliament may not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament.

Pursuant to Article 83 of the Parliament's Regulations requests for leave to prosecute a member of parliament are first examined by the Parliament's professional ethics committee which should take into account, inter alia, whether the act complained of is linked to a political activity of the member of parliament (see §§16-17 of judgment).

• Information is awaited on measures taken or envisaged by the authorities to prevent similar violations. In this context, it is noted that in similar cases against Italy (see Cordova case, judgment of 30/01/03, final on 30/04/03; De Jorio case, judgment of 03/06/04, final on 10/11/04, section 6.2), there has been a change of the case law of the Italian Constitutional Court, according to which it is no longer possible to extend the scope of parliamentary immunity to acts and statements which are not connected with parliamentary duties.

• In particular, information is awaited on the wide dissemination of the Court's judgment to competent judicial authorities, the Parliament's Speaker and professional ethics committee, which were involved in this case.

11919/03          Mohd, judgment of 27/04/2006, final on 27/07/2006[56]

199/05              John, judgment of 10/05/2007, final on 10/08/2007[57] [58]

66725/01          Fotopoulou, judgment of 18/11/2004, final on 18/02/2005[59]

52903/99          Dactylidi, judgment of 27/03/03, final on 09/07/03[60]

35859/02          Housing Association of War Disabled and Victims of War of Attica and others, judgment of 13/07/2006, final on 11/12/2006 and of 27/09/2007, possibly final on 27/12/2007[61]

2898/03            N.T. Giannousis and Kliafas Brothers S.A., judgment of 14/12/2006, final on 23/05/2007[62]

The case concerns the violation of the applicant company's right of access to a court, as in 2002 the State Council (the supreme administrative court) discontinued proceedings pending before it to set aside a prefectoral decision on the ground that it was no longer in a position to rule on the merits. The State Council recalled that the prefectoral decision at issue, revoking the applicant's authorisation to use its factory (which dated from 2000, the authorisation being valid until April 2001) was already no longer in force when the Council was called upon to consider the matter in 2002, having been rescinded in December 2000 (violation of Article 6§1).

The European Court considered that the State Council had relied on a legal device to give effective confirmation of the prohibition on the continued use of the factory without taking a decision on the lawfulness of the administrative acts at issue, thus failing in its obligation to determine the question submitted to it, which is the essential function of a court (§28 of judgment).

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

• Information is awaited as to whether the applicant may have the procedure reopened and considered on the merits

General measures:

• Information is awaited on measures taken or envisaged to prevent new, similar violations and in particular, on the wide dissemination of the European Court's judgment to the judicial authorities involved in this case.

35533/04          Mamidakis, judgment of 11/01/2007, final on 11/04/2007[63]

The case concerns the violation of a company's right to the peaceful enjoyment of its possessions due to the imposition in 1997 of a customs fine exceeding 3 million euros for smuggling petroleum. The applicant, who was the president of the oil company at issue, was also declared jointly responsible for the payment of fines, exceeding 4,9 million euros, imposed on other persons for customs violations.

The European Court, even though it took into account the states' margin of appreciation in this field, found that the imposition of the fine in question dealt such a blow to the applicant's financial situation that it amounted to a disproportionate measure in relation to the legitimate aim pursued (§48) (violation of Article 1 Protocol No 1).

Individual measures: The applicant did not request pecuniary damages from the European Court, which awarded him just satisfaction in respect of the non-pecuniary damage sustained.

• Information is awaited on the applicant's situation and on measures taken or envisaged by the authorities, in compliance with the European Court's judgment.

General measures:

• Information is awaited on measures taken or envisaged by the authorities to prevent similar violations. In particular, information is awaited on the translation and dissemination of the Court's judgment to competent customs authorities and to administrative courts.

- 94 cases of length of proceedings concerning civil rights and obligations before administrative courts and of lack of an effective remedy

(See Appendix for the list of cases in the Manios group) [64]

Interim Resolution CM/ResDH(2007)74

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

Interim Resolution CM/ResDH(2007)74[65]

53401/99          Konti-Arvaniti, judgment of 10/04/03, final on 10/07/03

77198/01          Athanasiou, judgment of 29/09/05, final on 29/12/05

3257/03            Sflomos, judgment of 21/04/05, final on 21/07/05

20898/03          Chatzibyrros and others, judgment of 06/04/06, final on 06/07/06[66]

11720/03          Inexco, judgment of 27/04/06, final on 27/07/06[67]

- Cases of length of proceedings concerning civil rights and obligations before the Court of Audit

73840/01          Papazoglou and others, judgment of 13/11/03, final on 13/02/04

66296/01          Belaousof and others, judgment of 27/05/2004, final on 10/11/2004

12767/02          Hourmidis, judgment of 19/05/2004, final on 19/08/2004

66808/01          Lazarou, judgment of 08/07/2004, final on 08/10/2004

62771/00          Litoselitis, judgment of 05/02/2004, final on 05/05/2004

These cases concern the excessive length of certain proceedings concerning human rights and obligations before the Court of Audit. The European Court indicated in the Lazarou case that the chronic case backlog of a court may not constitute a valid explanation for delays (§21 of the judgment) (violations of Article 6§1).

Individual measures: None (all proceedings are closed).

General measures:

• Information provided by the Greek authorities (letter of 02/01/2006): according to information provided by the President of the Court of Audit to the Justice Ministry in 2005, hearings in this Court are on average fixed within 7-8 months following the lodging of the application and judgments are rendered within 6 months thereafter. Delays may exceptionally occur in cases of influxes of applications by large groups of individuals, such as former servicemen, as in the present cases.

However, the Ministry of Justice has created a committee to examine a possible amendment of the Court of Audit's rules of procedure, taking into account proposals by this Court's President.

• More information is awaited on the progress of this committee's work.

- 67 cases against Hungary

37251/04          Csikós, judgment of 05/12/2006, final on 05/03/2007

This case concerns the violation of the applicant's right to a fair trial and his rights of defence due to a judgment confirming his conviction and increasing his sentence to four years' imprisonment (from 3½ years' handed down on 13/10/2003) by the Heves Country Regional Court in a closed session and in the absence of both the applicant and his lawyer (violations of Articles 6§1 and 6§3(c)).

The European Court found that the applicant's sentence should not have been increased, as a matter of fair trial, without him or his lawyer being present at the appellate court's session.

Individual measures: The European Court recalled its case-law to the effect that where an individual has been convicted by a court in proceedings which did not meet the Convention's requirement of fairness, a retrial, reopening or review of the case, if requested, represents in principle an appropriate way of redressing the violation.

The Secretariat notes that section 406 §1 b) of the new Code of Criminal Procedure, which entered into force in July 2003, provides the possibility of reviewing final court decisions following Strasbourg judgments.

• Information is awaited concerning the applicant's personal situation and as to whether in the specific circumstances he may apply under the provision mentioned above for review of the decision increasing his sentence.

General measures: The European Court noted that on 26/05/2005 the Constitutional Court annulled section 360(1) of the new Code of Criminal Procedure, which contained the impugned legal provision permitting in camera deliberations to be held on appeal. Nevertheless, the Constitutional Court did so without ordering the review of criminal proceedings in cases of successful complainants who were in a position similar to that of the applicant in the present case.

• Information is awaited concerning the publication and dissemination of the European Court's judgment; and as to whether the Hungarian authorities are envisaging the adoption of any other general measures in addition to the annulment of section 360(1) by the Constitutional Court, so as to ensure that in similar situations, a convicted person or his lawyer is present if a sentence is increased at appeal.

• Recent development: by letters of 08/10/07 and 30/10/07 the Hungarian authorities provided information on individual and general measures. The Secretariat is currently assessing it.

41463/02          Földes and Földesné Hajlik, judgment of 31/10/2006, final on 26/03/2007[68]

This case concerns the violation of the freedom of movement of the first applicant, Mr Földes, due to the withdrawal of his passport until the termination of criminal proceedings pending against him for fraudulent bankruptcy. The administrative decision to withdraw his passport was taken on 17/01/1994; that decision was upheld on 09/05/1995. Since 09/05/1995 no other decision has been taken. On 01/05/2004, it became possible for Hungarian citizens to travel to certain member states of the European Union with just their national identity cards.

The European Court found that, as no reassessment of the initial decision has taken place since 09/05/1995, the travel ban was in reality an automatic, blanket measure of indefinite duration. The Court considered that this ran counter to the authorities' duty to take appropriate care to ensure that any interference with the right to leave one's country remains justified and proportionate throughout its duration, in the individual circumstances of the case (violation of Article 2§2 of Protocol No. 4). 

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

• Information is awaited as to whether the decision taken on 17/01/1994 to impose a travel ban (by withdrawal of passport) on the first applicant is still in effect, and if so, whether this decision would prevent the applicant from being issued with a passport. If this is so, it would be useful to have information on the date that the decision was last reassessed.

General measures:

• Bilateral contacts are under way as to whether general measures other than dissemination of the judgment to the Ministry of the Interior, Minister of the Interior and regional courts are required.

In any event, publication of the judgment is required.

75116/01          Karalyos and Huber, judgment of 06/04/2004, final on 06/07/2004

This case concerns the excessive length of civil proceedings involving a claim for damages brought by the applicants against a Greek company before a Hungarian court (violation of Article 6§1). The proceedings began on 25/01/1995 and were still pending when the European Court delivered its judgment (move than 9 years for a single degree of jurisdiction).

The European Court considered that the Hungarian authorities were responsible for the excessive length of the proceedings in that they failed to use all the possibilities available to establish the content of the Greek law relevant to the examination of the case.

Individual measures: On 17/10/2005 the first-instance court delivered its judgment. Proceedings are still pending before the Pest Central District Court.

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

General measures: It should be noted that the general issue concerning the excessive length of civil proceedings and remedies in such cases is being examined in the framework of the Tímár group (Section 4.2).

The judgment of the European Court was published on the website of the Ministry of Justice http://www.im.hu/ and in the human rights quarterly Acta Humana.

• Information is awaited on its dissemination.

                       - 64 cases concerning length of judicial proceedings

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

These cases concern the excessive length of proceedings concerning civil rights and obligations, some before labour courts (violations of Article 6§1). The proceedings began between 1986 and 1998 and most of them ended between 2000 and 2005.

The European Court recalled its case-law according to which industrial conflicts must be resolved particularly promptly.

Individual measures: If they are still pending, acceleration of the proceedings in the cases of Earl, Szilágyi, Tóth, Vass, Magyar (No. 2), Kovać and Kalmár.

• Additional information is awaited on the state of these proceedings and on their acceleration, if still pending.

General measures:

1) Excessive length of civil proceedings: The government has indicated that the workload of the Supreme Court decreased considerably following a reform of the legal system in Hungary in 2002 which transferred appeal competence to the five Courts of Appeal created in 2003 and 2004. Before the end of 2003 the Courts of Appeal adopted final decisions in two thirds of the 5 443 cases which were transferred to them by the Supreme Court. Thus, at the end of 2003, the Supreme Court's roll of civil and criminal cases on appeal had been reduced to 1 180 cases, that is to say 16% of its workload before the reform.

As for the additional measures adopted by the authorities to reduce the length of judicial proceedings, the delegation indicated that several amendments of the 1952 Code of Civil Procedure were adopted after the changes of 1989 with the aims of accelerating civil proceedings and modernising the system of legal remedies. More strict time-limits were provided for the stay of proceedings and the drafting and notification of judgments. As from 01/01/1999, the double degree of jurisdiction for administrative cases was removed and legal competence in this kind of cases was transferred to regional courts. The possibilities of appeal against first-instance decisions in cases concerning small amounts were limited by an amendment of the Code of Civil Procedure which came into force in 1998: appeal proceedings in such cases were simplified. Moreover, the conditions of revision of judgments before the Supreme Court were modernised in 2002 in order to restrict the use of this extraordinary means and to reduce the length of this kind of proceedings. Finally, in 1999 administrators were appointed to courts to ensure better case management. The authorities also indicated that according to the Act of 1997 on the Organisation of Courts, the Office of the National Judicial Council and the presidents of courts are in charge of administrative supervision of the examination of cases and may order that certain civil or criminal cases are examined in priority. Moreover, the Office of the National Judicial Council has regularly requested from courts information on cases pending for more than two years and the respect of legal time-limits.

The authorities indicated furthermore that they are considering the preparation of a new legislation to provide more effective sanctions against court experts responsible for unjustified delays, as well as more strict requirements regarding their work.

Statistics have been provided for the year 2006: less than 1% of the cases before the Supreme Court have been pending before it for over 12 months. At the appeal level, 2% of civil cases and 1.2% of commercial cases have been pending at that level for more than12 months. However, at first-instance, the statistics do show a higher percentage of cases pending for over 12 months.

• Information awaited: on the timetable for the legislative project and on its relevant provisions. Further statistical data regarding the cases pending before the local courts and country courts at the end of June 2007 would be appreciated so as to evaluate of the efficacy of the measures adopted so far.

2) Effective remedy against excessive length of judicial proceedings: The delegation has indicated that Act XIX of 2006, a law allowing parties to ask for such proceedings to be accelerated, entered into effect on 01/04/2006.

One part of the Act supplements the Code of Civil Procedure, while the other part amends the Code of Criminal Procedure. Parties to civil proceedings may complain where:

(i) a time-limit prescribed by law by which a court must end proceedings, perform a procedural act or take a decision has elapsed without result;

(ii) a time-limit set by a court itself, by which a party to proceedings must perform a procedural act has elapsed without result, and the court has failed to impose on that person the measures permitted by law; or where

(iii) a court fails to end the proceedings within a reasonable length of time by failing to perform or order the performance of a procedural act, counting from the last action taken by the court on the merits of the case.

A written complaint is filed with the court before which proceedings are pending, which must examine it within 8 days. If it finds the complaint well-founded, it has 30 days to take or order appropriate measures to put an end to the situation complained of.  The court shall inform the complainant of how the complaint has been determined.

If the court finds the complaint ill-founded, it shall forward the file within 16 days, together with the observations of the opposing party and its own reasons as to why it was impossible to perform the procedural act or take a decision, to the court empowered to determine the complaint, the superior court. The superior court has 15 days upon receipt of the files to determine the complaint. If the superior court finds the complaint ill-founded, it shall dismiss the complaint in a reasoned decision. If it finds the complaint well-founded, it shall set a time-limit and invite the court before which proceedings are pending to take the action required for the proper progress of the case or the most effective action. If the complaint concerns an omission by the lower court to perform an act within a time-limit prescribed by law, the superior court may instruct that court to do so.

• Information awaited: Given the fact that the law has recently entered into force, examples of its application, when available, would be useful.

3) Publication and dissemination: The judgments of the European Court in the cases of Tímár, Simkó, Lévai and Nagy, Nyírő and Takács, Mezötúr-Tiszazugi Vizgazdálkodási Társulat and Szilágyi were published on the website of the Ministry of Justice www.im.hu. The judgments in the cases of Tímár and Simkó and Lévai and Nagy were also published in the human rights quarterly “Acta Humana” and were sent to the Office of the National Judicial Council in order to be disseminated to civil and labour courts.

- 2 cases against Iceland

39731/98          Sigurđsson, judgment of 10/04/03, final on 10/07/03

The case concerns the lack of objective impartiality of the Supreme Court of Iceland which in 1997 rejected the applicant's appeal in compensation proceedings he brought against the National Bank of Iceland, because of the close and important financial relationships between a Supreme Court Judge and her husband on the one hand and the National Bank of Iceland on the other (violation of Article 6§1).

The applicant has 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 can be applied for only once. Before the European Court handed down its judgment, the applicant had already applied twice for re‑opening of the proceedings in his case. 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), the applicant has no prospect of success in lodging a new application. The applicant has, however, not applied for re-opening (see the general measures).

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 the purposes of 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).

            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. The Permanent Committee on Procedural Law is expected to give its opinion on the matter shortly.

• The opinion of the Permanent Committee on Procedural Law is still awaited together with information on possible legislative changes and their timetable.

60669/00          Ásmundsson Kjartan, judgment of 12/10/2004, final on 30/03/2005[69]

- 1 case against Ireland

39474/98          D.G., judgment of 16/05/02, final on 16/08/02[70]

- 25 cases against Italy

30595/02          Bove, judgment of 30/06/2005, final on 30/11/2005[71]

59909/00          Giacomelli, judgment of 02/11/2006, final on 26/03/2007[72] [73]

55764/00          Zečiri, judgment of 04/08/2005, final on 04/11/2005[74]

38805/97          K., judgment of 20/07/2004, final on 15/12/2004[75]

25639/94          F.L., judgment of 20/12/01, final on 20/03/02[76]

76024/01          Rapacciuolo, judgment of 19/05/2005, final on 12/10/2005[77]

64088/00          Pilla, judgment of 02/03/2006, final on 02/06/2006[78] [79]

70148/01          Fodale, judgment of 01/06/2006, final on 23/10/2006[80] [81]

30961/03          Sannino, judgment of 27/04/2006, final on 13/09/2006[82] [83]

                       - Cases concerning in absentia proceedings

12151/86          F.C.B., judgment of 28/08/91, Resolution DH(93)6 and Interim Resolution ResDH(2002)30

56581/00          Sejdovic, judgment of 01/03/2006 - Grand Chamber[84]

24691/04          Ali, judgment of 14/12/2006, final on 14/03/2007

5941/04            Hu, judgment of 28/09/2006, final on 28/12/2006[85]

25701/03          Kollcaku, judgment of 08/02/2007, final on 08/05/2007[86]

14405/05          Zunic, judgment of 21/12/2006, final on 21/03/2007

These cases all concern the unfairness of criminal proceedings by which the applicants were sentenced in absentia to several years’ imprisonment (see “Individual measures”).

The European Court found that there had been denials of justice in these cases, first because it had not been shown that the applicants had been fugitives from justice or had declined to appear or to defend themselves, and secondly in that, having been informed of the judgments against them, they had not been able to go before a court to determine the validity of the accusations against them (violations of Article 6§§1 and 3).

Individual measures:

            1) F.C.B.

• Prosecution of the applicant: the applicant, an Italian national accused of armed robbery, murder and attempted murder, was convicted in absentia in 1984 and sentenced to 24 years’ imprisonment. During his trial, he had been detained in Maastricht, but the judicial authorities considered that he had nonetheless been in a position to take part in the hearings.

• Execution of the sentence: In March 1993, the Committee of Ministers adopted Resolution DH(93)6, putting an end to its examination of the case on the basis of information provided concerning the general measures taken to avoid new, similar violations. However, in 1999, the Committee decided to resume examination, the Italian authorities having requested the extradition of the applicant from Greece with a view to enforcing the conviction of 1984. In September 2000, the Italian authorities dropped this request. In 2004 the applicant, who had meanwhile returned to Italy, was arrested for other offences. The Italian authorities issued an enforcement order in respect of the conviction at issue.

• Reopening of the proceedings: on 22/09/2005, the Court of Cassation, seised by the applicant to contest the legitimacy of this enforcement order, referred the matter back to the Milan Appeal Court, emphasising the need to revise the order in the light of the European Court's finding of a violation. On 30/01/2006, the Milan Appeal Court decided not to revise the enforcement order and the matter was once more brought before the Court of Cassation, which dismissed the appeal on 15/11/2006 (see “General measures”).

            2) Sejdovic

• Prosecution of the applicant: the applicant, at the time a national of the Federal Republic of Yugoslavia who was suspected of murder and could not be traced, was sentenced to 15 years, 8 months' imprisonment. In the absence of an appeal, this judgment became final in 1997. He was deemed by the judicial authorities to have wilfully fled from justice and to be “on the run” (latitante).

• Execution of the sentence: In 1999, the applicant was arrested in Germany under a warrant issued by the Rome Public Prosecutor. Extradition was subsequently denied on the ground that Italian law did not provide sufficient guarantees concerning re-opening of his trial and the applicant was freed. In May 2006, the Italian authorities revoked the international warrant against the applicant and the judgment of the European Court was noted in his criminal record.

• Just satisfaction: opinions diverge as to the formalities needed to authorise the applicant's counsel to receive payment.

            3) Hu

• Prosecution of the applicant: the judicial authorities considered that the applicant, a Chinese national suspected of belonging to a clandestine criminal organisation involved in illegal immigration, had deliberately fled from justice and declared him to be latitante (“on the run”). The applicant was sentenced to 19 years' imprisonment and, in the absence of an appeal, the sentence became final in 1998.

• Execution of the sentence: in 1983, the applicant was arrested at Amsterdam airport under a warrant issued by the Italian authorities. The Netherlands authorities rejected the application for extradition on the ground that the applicant had not had the opportunity to defend himself. On the date of the European Court's judgment, the applicant was living in the Netherlands.

            4) Ay Ali

• Prosecution of the applicant: the applicant, a Swedish national accused of international drug-dealing and who could not be traced, was sentenced to 20 years’ imprisonment and in the absence of an appeal the sentence became final in 1999. The judicial authorities considered that he had wilfully fled from justice, and was “on the run” (latitante).

• Execution of the sentence: in 2000, the applicant was arrested in Lithuania under the terms of an international warrant of arrest issued by the Italian authorities and extradited to Italy.

• Reopening of the proceedings: on 16/11/2000, the applicant applied for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini). This was denied initially by the appeal court on 12/04/2001 and in a final judgment by the Court of Cassation of 4/12/2004.

            5) Zunic

• Prosecution of the applicant: the applicant, a national of Bosnia and Herzegovina suspected of belonging to a clandestine criminal organisation involved in prostitution, was sentenced to 10 years’ imprisonment and a fine. In the absence of an appeal, the sentence became final in 1999. During the proceedings, the judicial authorities declared that he was irreperibile, i.e. he could not be found.

• Execution of the sentence: in 2002, the applicant was arrested in Croatia under the terms of an international warrant of arrest issued by the Italian authorities and extradited to Italy.

• Reopening of the proceedings: the applicant has brought several appeals against his conviction, including, on 13/02/2004, an incidente d’esecuzione (objection to enforcement) and on 13/05/2005, an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini), but these were all denied. At an unspecified date, the applicant issued a further incidente d’esecuzione (objection to enforcement), which was denied by the Florence Appeal Court; the decision of the Court of Cassation, seised of the case, is not known.

            6) Kollcaku

• Prosecution of the applicant: the applicant, an Albanian national accused of wrongful imprisonment, sexual abuse and living on the earnings of prostitutes, became impossible to find and was sentenced to 5 year’s imprisonment. In the absence of an appeal, this judgment became final in 1997. The judicial authorities considered that he had wilfully fled from justice, and was “on the run” (latitante).

• Execution of the sentence: he was arrested in Rome in 2003.

• Reopening of the proceedings: on 10/06/2003, the applicant submitted an incidente d’esecuzione (objection to enforcement), which was denied.

• Information is awaited of the applicants’ various requests to have a fresh judicial determination of the validity of the charges laid against them, both in fact and in law, and of the outcome of these requests. Pending a ruling by the European Court as to the effectiveness of the new remedy (see “General measures”) it would be useful to have instances of case-law indicating that this remedy is in fact available to the applicants in the present cases. In this context, it would also be helpful to have information on progress with the introduction on a more general basis of a right to obtain reopening of criminal proceedings which have violated the Convention.

General measures:

            1) Legislative measures: in 1989, Italy adopted a new Code of Criminal Procedure (CCP) improving the guarantees in case of in absentia proceedings (see Resolution DH(93)6).

In 2004, in its chamber judgment in the Sejdovic case (10/11/2004), the European Court found the improvement brought about by the introduction of 1989 Code was insufficient. Some months later Italy amended Article 175 of the Code of Criminal Procedure (Legislative Decree No. 17 of 21/02/2005, confirmed by Act No. 60 of 22/04/2005), to modify the parameters of the remedy referred to as istanza di rimessione in termini (application for suspension of the time-limit for appeal against sentence). Thus it possible to appeal against judgments rendered in absentia at first instance even if the normal deadlines have expired.

Under the new law, the deadline for appealing against a judgment pronounced in absentia may be re-opened simply at the request of the person concerned. There is one exception to this rule, where the accused has had “effective knowledge” of the proceedings against him or of the judgment but has wilfully decided not to appear or to appeal.

Moreover, the basic deadline has been increased from 10 to 30 days counting from the date upon which the accused is delivered to the Italian authorities.

In its Grand Chamber judgment in the Sejdovic case on 1/03/2005 – after the entry into force of the new law – the European Court considered that it was premature in the absence of any domestic case-law, to pronounce itself on this reform and consequently did not consider it necessary to indicate general measures for execution (§§123-124).

            2) Jurisprudential measures: One problem posed by Act No. 60 of 2005 was that of the retroactive application of the new law so that it could resolve problems raised by older cases, the text of the law providing no transitional measure.

The Court of Cassation intervened on this question in its decision No. 32678 of 3/10/2006 by applying the new rules to an “old” case that of Somogyi (judgment of 18/05/2004, see Section 6.2). In order to achieve this, the Court of Cassation, reaffirmed the direct effect of the Convention and the case-law of the European Court in Italian law, not least in respect of judgments having the status of res judicata.

The Court of Cassation was once more seised of this problem by the introduction of an objection to enforcement (incidente d’esecuzione) by the applicant in the F.C.B. case (see above). This appeal was denied on 15/11/2006 as the Court of Cassation considered that the applicant should first have lodged an istanza di rimessione in termini (application for suspension of the time-limit for appeal against sentence), as provided by the new Article 175 CCP, and in accordance with its case-law in the Somogyi case.

• Information is awaited on the development of this new case-law of the Court of Cassation which relies on the direct effect of the Convention, so that the necessary execution measures may be found (see Individual measures). Any new judgments on the same issue would be helpful in estimating the degree to which this may be considered the established case-law of the Court of Cassation.

            3) Recent legislative initiatives

• Special appeal against in absentia judgments: On 16/05/2007, the government submitted a draft law (AC 2664 – Chamber of Deputies) which provides among other things a further reform of in absentia proceedure. In the preamble to this text it is underlined that “apparently, an in-depth reform of in absentia procedures can be put off no longer” and that “the European Court has, in recent years, pronounced several critical judgments, which impose on the state the obligation to comply in accordance with Article 46 of the Convention (such as Colozza, 1985; Sejdovic, 2004 and Somogyi, 2005)” The Bill proposes several highly detailed modifications to the CPP, not least in the part dealing with communications with the accused, in order to adapt the applicable rules to the requirements of the Convention.

• Reopening of criminal proceedings: Italian law still provides no means of reopening criminal proceedings following violations of the Convention, but: first, the Consitutional Court has been seised in the matter (by the Bologna Appeal Court in the Dorigo case) and secondly, on 18/09/2007 the government submitted a new draft law to introduce such reopening into the Italian judicial system (AS 1797 – Senate). The Secretariat notes nonetheless that this draft would only apply to violations of Article 6§3.

36813/97          Scordino No. 1, judgment of 29/03/2006 - Grand Chamber[87] [88]

52980/99          Stornaiulo and others, judgment of 08/08/2006, final on 08/11/2006[89]

41576/98          Ganci, judgment of 30/10/03, final on 30/01/04[90]

56317/00          Argenti, judgment of 10/11/2005, final on 10/02/2006

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

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

- 5 cases against Latvia

62393/00          Kadiķis No. 2, judgment of 04/05/2006, final on 04/08/2006

The case concerns the conditions of the applicant’s administrative detention in the temporary confinement suite of the Liepaja State Police station from 28/04/2000 to 13/05/2000 (15 days). The European Court noted that the cell in which the applicant was detained, usually with 3 or 4 other people, measured 6m², of which less than half was available for all the co-detainees to move about in.

There was no natural light and the ventilation system did not work properly, stopping often. There was no exercise yard and the only time the applicant could leave the cell was to go to the lavatory or to the washroom. The applicant had no bed, but had to share a wooden platform 2.1m x 1.7m with his cellmates. There was no bed-linen and the prisoners slept fully clothed on bare boards. During the applicant’s detention, only one proper meal per day was served and it was prohibited for the detainees to receive foodstuffs from outside. Finally, there was neither drinking water nor even running water in the cell.

The European Court found that, although there was no evidence of any intention on the part of the Latvian authorities deliberately to humiliate or diminish the applicant, this treatment was nonetheless degrading (violation of Article 3).

The case also concerns the absence of an effective remedy whereby the applicant might complain about the conditions of detention (violation of Article 13).

Individual measures: None: the applicant was freed in May 2003. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained.

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, 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 is 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 (violation of Article  8) as well as on account of the opening and monitoring of the letters addressed to the applicant by the European Court (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.

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 (violation of Article 34) 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 (violation of Art. 34).

Individual measures: The applicant was released in December 2002. He made no application before the European court in respect of just satisfaction.

• Assessment: No further individual measure thus seems necessary.

General measures:

1) Violation of Articles 8 and 34: This case presents similarities to the Kornakovs case (judgment of 15/06/2006, Section 5.3) in which the Latvian authorities have adopted and are adopting measures in this respect.

2)Violation of Article 9:

• Information is awaited on legislative measures taken or envisaged, in addition to those mentioned above, to remedy the lack of provisions concerning the right of detainees on remand to attend religious services (§§79‑80).  

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 sufficient reasons for extending it (violation of Article 5§3);

- the excessive length of the succeeding 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 Art. 34);

- the fact that insufficient food was provided on court hearing days, amounting to “degrading treatment” (violation of Article 3).

Individual measures: The applicant is no longer detained on remand: on 25/09/2001 he was convicted and on 17/01/2003 sentenced to 12 years’ imprisonment. He claimed no just satisfaction before the European Court.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: This case presents similarities to that of Lavents (judgment of 28/11/2002, Section 6.2 at this meeting) and the Kornakovs case (judgment of 15/06/2006, Section 5.3 at this meeting).

• 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.

Moreover, the European Court also found other violations in this case:

• 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.

• Information is thus awaited on these two issues.

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 concerns 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 (violations of Article 8).

The Čistiakov case concerns, in addition, the unlawfulness of prolonged detention on remand without legal basis as he was detaine seven 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 (Section 6.2) and Kornakovs (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 seven 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.

• Publication and dissemination of the European Court’s judgments to the competent authorities is awaited. Information on other possible measures would also be useful.

- 1 case against Lithuania

4902/02            Čiapas, judgment of 16/11/2006, final on 16/02/2007

The case concerns infringement of right of the applicant, a detainee, to respect for his correspondence during two criminal investigations into charges against him between 19/11/2001 and 1/04/2003. In the light of the charges of robbery and blackmail laid against the applicant, all his correspondence with private persons was opened and read in his absence by the prison authorities.

The European Court, while finding that this interference had a legal basis and pursued a legitimate aim, nonetheless considered that the government had not presented sufficient reasons to show why such total supervision of the applicant's correspondence with private persons was “necessary in a democratic society”, particularly with regard to the applicant's correspondence with his wife (violation of Article 8).

Individual measures: The applicant is currently serving his sentence at the Marijampolė Prison.

• Information is awaited as to whether the applicant's correspondence with private persons is still subject to censorship.

General measures: The European Court stressed the need for the national law authorising measures to be drafted with precision and for regular review of censorship orders as to their nature and length.

• Information provided by the Lithuanian authorities (20/07/2007): certain amendments to the Law on Pre-trial Detention are under way as regards, inter alia, the right of correspondence of persons detained on remand. The draft amendments were submitted to the government on 05/07/2007 and were taken under consideration. The legislative process is in progress and the draft has not reached Parliament yet.

• The Lithuanian authorities are invited to keep the Secretariat informed of the progress of the proposed amendments.

- 4 cases against Luxembourg

                       - Cases mainly concerning length of criminal proceedings

63286/00          Schumacher, judgment of 25/11/03, final on 25/02/04

73983/01          Rezette, judgment of 13/07/2004, final on 13/10/2004

40327/02          Casse, judgment of 27/04/2006, final on 27/07/2006

33747/02          Laghouati and others, judgment of 05/04/2007, final on 18/05/2007

These cases concern the excessive length of certain civil and criminal proceedings which began in 1991 and 1996 (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 had never been charged, or summonsed to appear before the investigating magistrate.

Individual measures:  

            1) Schumacher and Laghouati cases: none, the proceedings at issue being now closed.

       2) Rezette and Casse 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, so that the civil proceedings could be resumed.

• Information is awaited on the state of progress of the proceedings in the cases of Rezette and Casse, and on their acceleration, in particular for the Casse case.

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 is 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).

• 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 published in Codex No. 6 of June 2006.

• 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 is only beginning to be perceptible. 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

• Further information are expected, first, concerning the progress of the adoption of the measure consisting in making it optional for judges to apply the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court, and secondly, if more precise data are available in the meantime, on the effects of the measures adopted..

      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 1/09/1988. Whilst taking note of these legislative provisions, it should also be noted that the European Court itself found in the above-mentioned Rezette case (and confirmed since then, see in particular the Dattel and others judgment of 04/08/2005), that the remedy provided by the Law of 1/09/1988 had not acquired a sufficient degree of legal certainty to be used or exhausted by the applicant for the purposes of Article 35§1 of the Convention. However, it may be noted that as recently as 5/04/2007 in its judgment in Laghouati and others against Luxembourg (not yet final at the time of writing), the European Court held that it could not reasonably speculate as to whether, in the future, the remedy advanced by the government (i.e. the remedy based on the law of 1/09/ 1988) will be considered effective with regard to the requirements of Article 13.

The Luxembourg authorities are aware of no case-law concerning the application of the Law of 1/09/1998 to cases of excessive length of judicial proceedings, other than those already presented before the European Court, the problem being that parties prefer to seise the European Court directly rather than using this internal remedy.

• Measures under adoption. The government is considering measures which might help to strengthen the effectiveness of the remedy provided by the Law of 1/09/1988. A preliminary draft amendment to this law is currently being prepared, aiming to set out more clearly the right to compensation for prejudice caused by excessively lengthy proceedings: a right which, as the government contends, already exists.

• Further measures are expected in this respect.

      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.

• Information is awaited on the dissemination of this judgment to investigating magistrates as well as on other measures which might be taken or envisaged to avoid new, similar violations.

- 4 cases against Malta

17209/02          Adami Zarb, judgment of 20/06/2006, final on 20/09/2006[91]

The case concerns sexual discrimination undergone by the applicant in 1997 on account of the practice of enrolling far more men than women on the jurors’ list even though the law in force at the material time (Article. 603 [1] of the Maltese Criminal Code) made no distinction between sexes, both men and women being equally eligible for jury service. The European Court held that the government had not provided an adequate explanation to justify this difference of treatment (violation of Article 14 in conjunction with Article 4§3 d)).

Individual measures: The applicant was exempted from jury service in April 2005 under Article 604 [1] of the Maltese Criminal Code. Thus no individual measures appear necessary.

General measures: All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (http://www.mjha.gov.mt/ministry/links.html) which provides a direct link to the Court's website. According to the European Court’s judgment, since 1997 an administrative process has been set in motion in order to bring the number of women registered as jurors in line with that of men. As a result, in 2004, 6,344 women and 10,195 men were enrolled on the list of jurors.

• In the light of these findings, information is awaited on measures envisaged or taken to ensure the further change of practice of domestic authorities and courts, in particular by giving recent data on the ratio of men and women currently enrolled on the list of jurors.

31122/05          Ghigo, judgment of 26/09/2006, final on 26/12/2006

35349/05          Fleri Soler and Camilleri, judgment of 26/09/2006, final on 26/12/2006

17647/04          Edwards, judgment of 24/10/2006, final on 24/01/2007

The cases concern a violation of the applicants’ right to respect to the peaceful enjoyment of their possessions on account of the requisition of their buildings under section 3(1) of the Maltese Housing Act as in force until 1989, imposing a landlord-tenant relationship on the applicants.

They had been requested to bear most of the social and financial costs of supplying housing accommodation to a third party and his family (Ghigo, Edwards) and to bear most of the financial costs of providing a working environment for government departments and/or for public offices which were performing their duties for the benefit of the community as a whole (Fleri Soler and Camilleri).

Having regard to the extremely low amount of rent, to the fact that the applicants’ premises had been requisitioned for more than 22 years (Ghigo), 30 years (Edwards) and for almost 65 years (Fleri Soler and Camilleri), as well as to the restrictions on the landlord's rights, the European Court found that a disproportionate and excessive burden had been imposed on the applicants. It followed that the Maltese state had failed to strike the requisite fair balance between the general interests of the community and the protection of the applicants' right of property (violations of Article 1 of Protocol. No. 1).

Individual measures: When the European Court delivered its judgments, the applicants were still subject to the imposed landlord-tenant relationship.

The European Court reserved the question of pecuniary and non pecuniary damage in all three cases.

• Information is awaited on the current situation of the applicants and on measures taken or envisaged to erase the consequences of the violation.

General measures: All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (http://www.bmj.de>mjha.gov.mt/ministry/links.html) which provides a direct link to the Court's website.

• Information is awaited on current law and practice as well as on measures envisaged or taken to prevent new similar violations in particular in such cases which fall under the law valid until 1989.

- 36 cases against Moldova

36455/02          Gurov, judgment of 11/07/2006, final on 11/10/2006

The case concerns the violation of the applicant's with the right to a fair hearing before a tribunal established by law in that the appellate court which examined her case in 2002 was presided by a judge whose term of office had expired in 2000 (violation of Article 6§1). The appeal court overturned a verdict on the merits in the applicant's favour.

Individual measures: The applicant may request reopening of the proceedings under section 449 of the new Code of Civil Procedure.

The authorities informed that on 1/11/2006 the Civil and Administrative Chamber of the Supreme Court of Justice granted the applicant’s request for the re-opening according to Articles 449 c) and 453 1b), quashed the decision of the court of appeal of 16/04/2002 and the decision of the first instance court of 27/02/2002 previously delivered in this case and referred the case back to the appeal court.

• Information would be useful on the outcome of these new proceedings.

General measures: The European Court noted that the practice at the material time, which had no base in legislation, was that judges whose term of office had expired were authorised to continue to sit for an undetermined period, until such time as the President decided the question of their appointment.

• The Moldovan authorities have been invited to provide information on the current legislation and practice and on measures taken or envisage to prevent new similar violations.

The European Court's judgment has been translated and published in the Moldovan Official Journal as well as on the website of the Ministry of Justice (www.justice.md) and sent out to the relevant authorities and domestic courts.

• The Moldovan authorities indicated that since the facts described in the judgment the situation has changed and a number of legislative provisions was adopted with a view to preventing new similar violations. This information is being assessed by the Secretariat.

18944/02          Corsacov, judgment of 04/04/2006, final on 04/07/2006

The case concerns the infliction of torture on the applicant, aged seventeen at the material time, following his arrest in July 1998. The European Court noted that he had been subjected to acts of particularly serious violence by the police including in particular beating on the soles of his feet and had sustained a number of wounds (violation of Article 3). The applicant spent approximately 70 days in hospital at various times between July and November 1998. His health deteriorated subsequently to the point that he was categorised as invalid to the second degree (loss of working capacity of 50-75%).

The case also concerns inadequacy of the investigation into the applicant's allegations, which lasted three years. The European Court noted a number of contradictions as well as serious and unexplained omissions and concluded that the conclusions of the investigation had not been established (violation of procedural aspects of Article 3).

The case furthermore concerns the absence of effective remedies in respect of the allegations of ill‑treatment. In fact, as the investigation had concluded that the acts of the policemen had been legal, the applicant had no means of seeking compensation (violation of Article 13).

Individual measures: The European Court awarded the applicant just satisfaction in respect of the non‑pecuniary damage suffered as a result of the torture and of the failure of the authorities properly to investigate the case.

The General Prosecutor's Office conducted an investigation against the alleged perpetrators of the ill‑treatment inflicted on the applicant. The case is currently under examination by the Hânceşti Court of First Instance (a hearing was fixed for 28/11/2006).

• Information is expected on the progress of these proceedings.

General measures: The Moldovan authorities provided extensive information in response to the issues raised, which is currently being assessed by the Secretariat.

            1) Violation of Article 3 (ill-treatment while in police custody):

- Legislative changes

a) On 30/06/2005 the Moldovan Parliament adopted an amendment to the Criminal Code, defining and criminalising torture. Article 309¹ of the Criminal Code provides a prison sentence of 2 to 5 years with suspension of the right to hold certain posts or to engage in certain activities for up to 5 years.

More severe penalties are provided (3 to 8 years' imprisonment with the same suspension of rights) for organising or inciting torture and in respect of certain types or techniques of torture (5 to 10 years). Torture and other forms of cruel, inhuman or degrading treatment are prohibited by a series of special provisions contained in the Criminal Code (Articles 306-309 and 327, 328) and in the Code of Criminal Proceedings.

b) On 19/04/2006 the Moldovan government approved the Code of Police Ethics (published in December 2006) drafted with the Council of Europe's assistance. Among the relevant provisions, Section 13 provides that all police officers are fully responsible for their actions or omissions as well as for orders given to their subordinates. According to Section 16 it is prohibited to apply, to encourage or to tolerate any act of torture under any circumstance to have recourse to force, except in case of absolute necessity and only to the extent necessary to achieve a legitimate aim. Section 30 of the Code provides that any failure to comply with its provisions invokes the disciplinary, civil or criminal responsibility of the police under the conditions prescribed by law.

- Training and awareness raising

- According to Section 11 of the Code of Police Ethics, staff training should be carried out according to the objectives of the police force, while respecting fundamental principles such as rule of law, democratic pluralism and protection of human rights.

- Several training programmes on human rights (torture, inhuman and degrading treatment) and the European Convention have been organised within the Ministry of Interior for the police and their co-workers. Other seminars have been organised with help of the Moldovan Institute of Penal Reform and the UNDP, for the employees of the Ministry of Interior.

- During its visit to Chisinau (29/11/06-01/12/06), the Secretariat delegation was informed that the authorities were envisaging twelve workshops on the implementation of the Code of Police Ethics. It has been also informed of changes already made and to come in the Police training curricula.

• The authorities are invited to provide examples of the application of the laws relating to criminal responsibility and information on the existing disciplinary measures for infliction of torture. Clarifications with respect to professional training are also expected.

            2) Violation of Article 3 (lack of effective investigation):

According to Article 298 of the Code of Criminal Procedure, as amended by the Moldovan Parliament on 28/07/2006, complaints concerning actions of organs conducting criminal investigation may be addressed to the prosecutor who supervises this investigation. If a complaint concerns the prosecutor supervising or directly involved in the investigation, he is obliged to transmit it, together with his explanations, to a superior prosecutor within 24 hours. All declarations, complaints or other circumstance indicating that a person has been tortured or subjected to inhuman or degrading treatment are examined by a public prosecutor under Article 274 of the Code of Criminal Procedure, in a separate procedure.

• Further clarifications are expected with respect to measures related to the effectiveness of such investigations are expected, as are relevant examples of such investigations.

            3) Violation of Article 13 (lack of remedy to claim compensation): At the material time, it was necessary to establish that the act in question was illegal in order to claim compensation for damage sustained.

The authorities have indicated that Articles 1403-1405 of the Civil Code establish responsibility and the possibility of compensation for damage caused by public authorities or by organs of criminal prosecution, public prosecutors and the judiciary. One example related to the application of these provisions has been provided.

The authorities have also indicated that persons whose rights had been violated are entitled to compensation for non-pecuniary and pecuniary damage under the provisions of Law No. 1545 of 25/02/1998 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”. According to this Law, the damage caused shall be fully compensated, irrespective of the degree of culpability of the agents of the criminal investigation organs, prosecution or courts.

• The authorities are invited to provide clarification on the applicability of Law No. 1545 to compensation for infliction of torture (in particular, whether it is necessary to establish the illegality of the acts in question in order to claim compensation for damage sustained) and its relationship to the general provisions contained in the Civil Code. Relevant examples of their application are also expected.

            4) Publication and dissemination of the Court's judgment

The judgment has been translated and published on the internet site of the Ministry of Justice (www.justice.md). It has also been sent for publication in the Official Journal and sent out to the national courts, the Ministry of Interior and all sections of the police.

41088/05          Boicenco, judgment of 11/07/2006, final on 11/10/2006

The case concerns various violations of the applicant's rights which occurred following his arrest on 20/05/2005 by the Centre for Fighting Economic Crime and Corruption (CFECC) and subsequent detention on remand.

- Ill-treatment while in police custody: After leaving the police station in the night of 20/05/2005 the applicant was unconscious for more than four hours. Further, according to the diagnosis of prison hospital doctors, he suffered cranial trauma, had pain in his kidneys and his urine was red. On the basis of all the information at its disposal, the European Court concluded that the authorities had not provided a satisfactory explanation to the effect that the applicant's injuries had been caused other than by ill-treatment while in police custody (violation of Article 3).

- Lack of adequate medical treatment: Given the serious nature of the applicant's injuries following his encounter with the police, the applicant required constant medical case and rigorous supervision. Moreover, according to the medical file submitted by the government in December 2005, by that date the applicant was in a state of stupor most of the time. It appears that on 23 December 2005 the Buicani District Court ordered that he should be held in the Central Psychiatric Hospital for treatment until full recovery. However, the European Court found that between 20/05/2005 and 20/09/2005 he was not provided with proper medical care (violation of Article 3).

- Lack of an effective investigation: On 31/05/2005 a complaint lodged with the Prosecutor General's Office by one of the applicant's lawyers was dismissed. The Rascani District Court confirmed this dismissal on 23/02/2006. In the European Court's view, the independence of the prosecutor who conducted the investigation was open to doubt since it was the same prosecutor who applied for the applicant's remand and for extensions of his detention. Further, he did not undertake any investigative measures after receiving the complaint from the applicant's lawyer and there is no indication that he examined the applicant's medical file (violation of procedural aspects of Article 3).

- Impossibility to be released pending trial: The applicant could not obtain release pending trial since according to section 191 of the Moldovan Code of Criminal Procedure, no release is possible for persons charged with intentional offences punishable by more than 10 years' imprisonment (violation of Article 5§3).

- Lack of sufficient reasons to keep the applicant on remand: In the view of the European court, the reasons advanced by the Buiucani District Court and the Chisinau Court of Appeal for ordering then extending applicant's detention on remand were not “relevant and sufficient” (violation of Article 5§3).

- Unlawful detention: The European Court noted that after 23/07/2005 no detention warrant was issued by a court, authorising or extending the applicant's detention (violation of Article 5§1). None of the provisions of the Code of Criminal Procedure provides detention of an applicant without a detention warrant. Such detention would in any case be contrary to Article 25 of the Constitution and section 177 of the Code of Criminal Procedure.

- Right of individual petition: The applicant's lawyers were not allowed to see the applicant or his medical file for the purpose of defending his rights before the European Court (violation of Article 34). Moreover, they were unable to present their observations in respect of pecuniary damage due to the lack of access to the applicant and to his medical file. In this context, the European Court considered that the continuing denial of access amounted to an aggravated breach of Article 3 and stressed the urgent need for the respondent government to secure to the applicant's lawyers and doctors immediate and unrestricted access to the applicant and his medical file.

Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. It reserved the question of the application of Article 41 in respect of pecuniary damage.

On 06/07/2006, the Buiucani Court of First Instance decided to release the applicant on bail and he was able leave the psychiatric hospital. Subsequently, on 03/11/2006, the same court decided to suspend the criminal proceedings against him until his recovery. He was authorised to go to Bucharest and Kiev for medical examination.

On 27/07/2006, the Buiucani Court of First Instance asked the clinical director of the psychiatric hospital to give the applicant's lawyer immediate, free access to his medical file.

On 17/07/2006, the Deputy General Public Prosecutor quashed the decision of 08/06/2006 of the Catana public prosecutor not to open a criminal investigation against the agents of the CFECC. Subsequently, the case-file was transmitted to the Anti-corruption Prosecution Office. Additional enquiry was ordered into the facts invoked by the applicant's wife and lawyer.

• Information provided by the Moldovan authorities: On 21/02/2007 the Prosecutor of the Anti-corruption Prosecution Office, taking into account the evidence gathered in the course of this enquiry, issued an order closing the proceedings. This order is currently being examined by the Secretariat.

General measures: The Moldovan authorities have provided detailed information in response to the questions raised by the Secretariat, which the Secretariat is now examining.

            1) Violation of Article 3 (ill-treatment and lack of effective investigation): The problem of ill-treatment in police custody and lack of effective investigation is also being examined in the context of the Corsacov case (Section 4.2) in which the Moldovan authorities have been invited to submit an action plan. The present case also concerns the problem of lack of independence of the prosecutor who conducted the investigation.

• The Moldovan authorities are invited to provide information on measures taken or envisaged concerning the lack of the independence of prosecutors. 

            2) Violation of Article 3 (lack of adequate medical treatment): The problem of lack of adequate medical treatment is also being examined in the context of the Ostrovar case (Section 4.2) and the Becciev case (Section 4.2).

            3) Violation of Article 5§3 (insufficient grounds for the detention): The problem of insufficient grounds for the detention is also being examined in the context of the aforementioned Becciev case.

            4) Violation of Article 5§3 (section 191 of the Code of Criminal Procedure): The Moldovan authorities have provided information in this respect.

• Bilateral contacts are under way to clarify whether this information is adequate.

            5) Violation of Article 5§1: The Moldovan authorities have also provided information in this respect.

• Bilateral contacts are under way to clarify whether this information is adequate.

            6) Violation of Article 34:

• The Moldovan authorities are invited to explain the grounds of this violation and provide information about measures taken or envisaged to prevent new, similar violations.

            7) Publication and dissemination: The Court's judgment has been translated and published on the internet site of the Ministry of Justice (www.justice.md) and also sent for publication in the Official Journal. The judgment has been disseminated to all national courts, the Supreme Court of Justice and Supreme Council of the Judiciary. The following authorities were also informed: the Office of the President, the Government, the General Prosecutor, the CFECC, the Department of prison administration of the Ministry of Justice, and the Ministry of Health. The dissemination was accompanied by an explanatory note indicating the necessity to adopt a series of general measures.

The Secretariat has written to the Moldovan authorities inviting them to present an action plan for the execution of this judgment.

                       - Case concerning ill-treatments inflicted in custody

6888/03            Pruneanu, judgment of 16/01/2007, final on 23/05/2007[92] [93]

                       - Cases concerning the poor conditions of detention

9190/03            Becciev, judgment of 04/10/2005, final on 04/01/2006

3456/05            Sarban, judgment of 04/10/2005, final on 04/01/2006

These cases concern the poor conditions in which the applicants were detained on remand (violations of Article 3). In the Becciev case, the European Court noted the poor condition of the cell, the absence of outdoor exercise, the inadequacy of the food and the fact that the applicant had been detained under these conditions for 37 days in 2003. Likewise in the Sarban case, the Court concluded that the failure to provide the applicant with basic medical assistance in 2004-2005 whilst he was obviously in need of medical attention and had indeed requested it, together with the other forms of humiliation practiced on him, such as handcuffing and being placed in a metal cage during hearings, amounted to degrading treatment.

The cases also concern the insufficient grounds for the detention (violation of Article 5§3). Both applicants were civil servants, charged with embezzlement (Becciev) and of abuse of power (Sarban). The European Court found that the domestic courts had justified their decisions in a somewhat abstract and stereotyped way even though the applicants had given a number of undertakings in support of their liberation: neither of them had objected in any way to the investigation; neither had a criminal record and both were prepared to surrender their passports. Furthermore, both had their families in Moldova and third parties were prepared to stand bail for them.

The Sarban case also concerns the failure to ensure a prompt examination of the lawfulness of the applicant's detention (21 days) (violation of Article 5§4). 

Finally, the Becciev case concerns the domestic court's refusal to hear a witness for the defence (violation of Article 5§4).

Individual measures: In the Becciev case, the applicant was released in 2003. Mr. Sarban has now also been released and is not under any legal constraint. Moreover, taking into account that the consequences of the violations found in these cases have been redressed by the Court through the award of just satisfaction in respect of the non-pecuniary damage suffered by the applicants, no further individual measure seems necessary.

General measures:

            1) Violation of Article 3:

• Information provided by the Moldovan authorities:Most of the regulatory framework governing the prison system, including conditions of detention, has been changed by the new Enforcement Code and other new laws.

- Overcrowding:

The new Enforcement Code, which entered into force on 01/07/2005, provides a minimum of 4 m² for each prisoner. In an effort to reduce prison overcrowding, a Bill has been drawn up to amend the Criminal Code, reducing minimum sentences for less serious offences and increasing the number of offences in respect of which alternative penalties may be applied.

- Cell conditions:

In 2005, 1500 blankets, 2000 towels, 2000 sheets, 2000 pillowcases, 1000 mattresses and 1000 pillows were acquired and distributed. Measures were taken to improve conditions in Chisinau No. 3 Penitentiary with the repair of 129 cells. New provisions have been introduced banning smoking in cells and other parts of prisons, detainees being allowed to smoke only in specially equipped rooms.

- Diet, medicines and care:

New minimum daily diet standards have been established to improve the quantity and quality of rations. All prisons also now possess all major types of medicaments, particularly those needed to treat prisoners suffering from tuberculosis. Rules on the provision of medical care in prisons are in the process of being drafted and adopted.

- Prisoners' free time:

Educational, cultural and sports programmes have been drawn up and implemented in prisons as a framework for detainees' free time. Psychologists and social workers are carrying out social integration programmes.

• Detailed information is awaited on the possibility for outdoor exercise, on the current state of adoption of the rules on the provision of medical care and on the practice related thereto.

            2) Violation of Article 5:It would also be appropriate to draw the attention of domestic courts (possibly by a circular) to their obligation under Article 5 to give adequate reasoning for decisions concerning detention on remand and also to consider alternative, less restrictive arrangements. The obligation of prompt examination of the lawfulness of detention could also be stressed.

The Moldovan authorities have indicated that judges’ attention has been drawn to their obligation to give reasons for orders to detain on remand.

• A copy of this and other relevant circulars would be appreciated.

The Moldovan authorities also report that the Advanced Training Centre for Justice Officials run by the Ministry of Justice has held a seminar on the subject. The have provided the Secretariat with a document entitled Strategy for the initial and ongoing training of judges and Prosecutors.

• A copy of the text concerning the rules on pre-trial detention is also awaited.

            3) Publication and dissemination: The judgment of the European Court has been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (http://www.justice.md) and sent out to all appropriate authorities.

35207/03          Ostrovar, judgment of 13/09/2005, final on 15/02/2006

This case concerns the poor conditions in which the applicant was detained on remand, in 2002 and 2003. The European Court found that the overcrowding, the poor conditions of the cell, the inadequacy of the food, the lack of full medical assistance, the exposure to cigarette smoke, the time spent in detention and the specific impact which these conditions could have had on the applicant’s health, amounted to degrading treatment (violation of Article 3). It further noted that there was no effective remedy in this respect (violation of Article 13 taken together with Article 3).

The case also concerns the interception of the applicant’s correspondence with his mother. In this respect, the European Court considered that Article 18 of the Law on Pre-Trial Detention did not indicate with reasonable clarity the scope and manner of the exercise of discretion in respect of restrictions on prisoner’s correspondence (violation of Article 8).

Finally, the case concerns the refusal to authorise visits by applicant’s wife and daughter. Here also, the European Court considered that Article 19 of the same law regulating prisoners’ contacts with their families presented the same shortcomings (violation of Article 8).

Individual measures: The applicant is no longer detained on remand. Moreover, taking into account that the consequences of the violations found in this case have been redressed by the European Court through the award of just satisfaction in respect of the non-pecuniary damage suffered, no further individual measure seems necessary.

General measures:

            1) Violation of Article 3:

• Information provided by the Moldovan authorities: Most of the regulatory framework governing the prison system, including conditions of detention, has been changed by the new Enforcement Code and other new laws.

- Overcrowding: The new Enforcement Code, which entered into force on 01/07/2005, provides a minimum of 4 m² for each prisoner. In an effort to reduce prison overcrowding, a Bill has been drawn p to amend the Criminal Code, reducing minimum sentences for less serious offences and increasing the number of offences in respect of which alternative penalties may be applied.

- Cell conditions: In 2005, 1500 blankets, 2000 towels, 2000 sheets, 2000 pillowcases, 1000 mattresses and 1000 pillows were acquired and distributed. Measures were taken to improve conditions in Chisinau No. 3 Penitentiary with the repair of 129 cells. New provisions have been introduced banning smoking in cells and other parts of prisons, detainees being allowed to smoke only in specially equipped rooms.

- Diet, medicines and care: New minimum daily diet standards have been established to improve the quantity and quality of rations. All prisons also now possess all major types of medicaments, particularly those needed to treat prisoners suffering from tuberculosis. Rules on the provision of medical care in prisons are in the process of being drafted and adopted.

- Prisoners’ free time: Educational, cultural and sports programmes have been drawn up and implemented in prisons s a framework for detainees’ free time. Psychologists and social workers are carrying out social integration programmes.

            2) Violation of Article 13:

• Information provided by the Moldovan authorities: A Supreme Court of Justice decision of 19/06/2000 laid down that where domestic law does not provide a right to an effective remedy against any right safeguarded in the Convention, the competent court shall directly apply the provisions of the Convention, whether in civil or criminal proceedings. Article 53 of the Moldovan Convention provides that the state is responsible for prejudice resulting from errors by prosecutors and courts in criminal proceedings. Article 1405 of the Civil Code contains a similar provision concerning the state’s responsibility for judicial errors. A concrete mechanism for the reparation of judicial errors in provided in Act No. 1545-XIII of 25/02/1998. This mechanism is effective in practice: for example, in the case of Drugalev against the Ministries of the Interior and Finance, the applicant was awarded 15 000 Lei in respect of non-pecuniary damages.

With a view to ensuring respect for the right to an effective remedy, a Complaints Committee has been set up as an independent body with the mandate to deal with prisoners’ complaints at any time during their sentence.

            3) Violations of Article 8:

• Information provided by the Moldovan authorities: Articles 18 and 19 of the Law on Pre-Trial Detention were slightly modified in 2003 and then repealed in 2005 by the new Enforcement Code. Article 229§2 of the Code prohibits the censorship of the correspondence of the convicted persons with their lawyer, the Complaints Committee, the prosecution authorities, courts, the central public administration authorities and international, intergovernmental organisations protecting human rights and fundamental freedoms. The Statute on the Enforcement of Sentences (adopted 26/05/2006) provides that prisoners’ correspondence with relatives or with other physical or legal persons may not be subject to censorship except under the conditions set out in the Code of Criminal Procedure or in Article 6, paragraph 2.2 of the Act on Operational Investigations.

            4) Publication and dissemination: The judgment of the European Court has been translated and published in the Official Journal of the Moldovan Republic (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md) and sent out to all appropriate authorities.

• Bilateral contacts are under way to assess the information received and the need for further measures.

30649/05          Holomiov, judgment of 07/11/2006, final on 07/02/2007

This case concerns several violations related to the applicant's detention on remand and to the subsequent criminal proceedings brought against him on charges of corruption.

Thus the case concerns, first of all, the absence of appropriate medical care for the applicant during his detention. In this respect, all the applicant's requests made between January 2002 and December 2005 for release founded on the fact that he could not obtain appropriate treatment in prison were refused. In December 2005 the District Court accepted the applicant's argument that his detention was incompatible with his medical condition and decided to replace his remand in custody with house arrest.

The European Court noted that the core issue in this case was not the lack of medical care in general but rather the lack of adequate medical care for the applicant's particular conditions. The Court stressed that merely having the applicant seen by doctors and hospitalised in the prison was not enough. The applicant was prescribed urgent surgery on one of his kidneys in 2002 and 2003 but the doctor's recommendations were never followed up. The authorities failed to act, despite the serious state of the applicant's health (violation of Article 3).

The case also concerns the applicant's detention after the expiry of his detention warrant (violation of Article 5§1) and the excessive length of the criminal proceedings (violation of Article 6§1).

Individual measures: When the European Court delivered its judgment, the applicant was still under house arrest and the criminal proceedings were still pending.

• Information is awaited on the current situation of the applicant and on the fact whether he can now benefit from the medical care. Furthermore, information is awaited on the state of the criminal proceedings and on their acceleration, if still pending.

General measures:

            1) Violation of Article 3: The case presents similarities to that of Becciev (judgment of 04/10/2005, in Section 4.2) which also raised the question of failure to provide medical assistance.

            2) Violation of Article 5§1: The violation was due to the fact that after the criminal case file had been sent to a court, according to the rules then in force, the accused could be detained without a warrant until the final resolution of the case. According to the new Code of Criminal Procedure, in force since June 2003, once the bill of indictment has been sent to a court, all requests concerning detention on remand are examined by the court in charge of the criminal case. A prisoner on remand may, at any time during the criminal investigation, request his provisional release. Decisions concerning the extension of the detention on remand lay may be appealed.

• Assessment: no further measure in this respect seems necessary.

            3) Violation of Article 6§1: Excessive length of proceedings does not seem to be a structural problem in Moldova.

• However, information would be helpful concerning the length of proceedings and the effective remedy. In any event, publication and dissemination of the Court's judgment would appear appropriate.

            4) Publication and dissemination of the European Court’s judgment: The judgment has been translated and published on the website of the Ministry of Justice (www.justice.md). It has also been sent for publication to the Official Journal. The judgment has been sent out to all national courts, the Ministry of the Interior and all police departments.

23393/05          Castravet, judgment of 13/03/2007, final on 13/06/2007

8721/05+          Istratii and others, judgment of 27/03/2007, final on 27/06/2007[94]

These cases concern the domestic courts’ failure of to give detailed reasons for extending the applicants’ continuing detention on remand between 2004 and 2005 (violations of Article 5§3). The cases also concern the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Center against Economic Crime and Corruption) at the time of the preparation of the applicants’ action concerning their right to liberty (violations of Article 5§4). The European Court noted in this respect that the applicants’ fear that their conversations with their lawyers were being intercepted appeared reasonable and that the lack of any aperture in the glass partition was a real impediment to confidential discussion or to an exchange of documents between lawyers and their clients. The Court also observed that the entire community of lawyers in Moldova had been seriously concerned about the lack of confidentiality of lawyer-client communications at the CFECC remand centre at the relevant time and that the Bar Association had unsuccessfully sought permission to check whether monitoring devices had been installed in the glass partition. 

The Istratii and others case also concerns the failure of the authorities’ in the CFECC remand centre to provide timely medical assistance to Mr Istratii, his transfer to prison hospital less than four hours after surgery and the fact that he was unnecessarily handcuffed while in hospital (violation of Article 3). Finally this case also concerns to the poor detention conditions in the Ministry of Justice remand center where the applicants were detained in 2005 (violation of Article 3).

Individual measures: The applicants were released in 2005. The Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure appears necessary.

General measures:

1) Violations of Article 5§3: these cases present similarities to the Becciev case (Section 4.2).

2) Violations of Article 5§4:

• Information is expected on the present situation regarding the confidentiality of lawyer-client communications at the CFECC remand centre, including the relevant regulations governing this issue. Where appropriate, information is also expected on the measures envisaged or already taken by the competent authorities to prevent future obstacles to confidential and efficient communication between lawyers and clients in this detention centre. A similar issue was raised in the Oferta Plus SRL case (Section 2).

3) Violations of Article 3:

            - Lack of medical assistance: the case of Istratii and others presents similarities to that of Sarban (Section 4.2).

• In addition, the Moldovan authorities are invited to provide information on the measures envisaged or already adopted to prevent new violations of the Convention due to the lack of immediate medical assistance and to unnecessary security measures in similar situations.

            - Poor detention conditions: the case of Istratii and others presents similarities to that of Ostrovar (Section 4.2).

                       - Case concerning freedom of expression

41827/02          Kommersant Moldovy, judgment of 09/01/2007, final on 09/04/2007

The case concerns a violation of the applicant company's right to freedom of expression due to a decision of the Moldovan Economic Court ordering the closure of its newspaper (violation of Art. 10).

This decision was based on the fact that between June and September 2001 the applicant company published a series of articles criticising the Moldovan authorities for their actions in respect of the break-away Moldovan Republic of Transdniestria (“MRT”) and reproducing harsh criticism of the Moldovan Government by certain leaders of the “MRT” and the Russian Federation.

The European Court observed that in their decisions the domestic courts did not consider the question of whether it was necessary to interfere as they did in the applicant's rights. It noted, in particular, that they did not specify which passages of the articles at issue were objectionable and in what way they endangered national security or the territorial integrity of the country or defamed the President and the country.

The only analysis made was limited to the issue of whether the articles could be considered as reproductions in good faith of public statements for which the applicant could not be held responsible in accordance with domestic law. The Court considered that the domestic courts did not give relevant and sufficient reasons to justify the interference in question and was not satisfied that they “applied standards which were in conformity with the principles embodied in Article 10” or that they “based themselves on an acceptable assessment of the relevant facts”.

Individual measures: The European Court awarded the applicants just satisfaction in respect of the pecuniary and non-pecuniary damages suffered by the applicant company. Moreover, the applicant company was subsequently re-registered under the name “Kommersant-Plus” and has resumed publication of the newspaper after only a brief pause.

Applicant’s submission: The applicant’s representative states that on 29/05/2007, i.e. about 1½ months after the European Court’s judgment became final, the applicant requested a revision procedure on the basis of Article 450 g) of the Moldovan Code of Civil Procedure, which provides the possibility of re-opening after a judgment of the European Court. However, this request was rejected by the Supreme Court of Justice on 4/10/2007 on the sole ground that it was lodged outside the 3-month time-limit provided by the Code. Such decision appears to be in contradiction with the previous decision of 29/11/2006 in which the Supreme Court of Justice indicated that the 3-month period should be calculated as from the date on which the European Court’s judgment became final.

On 13/11/2007 the submission of the applicant’s representative was submitted to the authorities for comments.

• Information in this respect is awaited.

General measures: The violation found in this case seems to arise from the fact that, when deciding on the necessity of the interference to the freedom of expression, the domestic courts did not give sufficient reasons for their decisions. Consequently, a change in domestic courts' practice in this respect appears to be necessary.

• Information is thus awaited on publication and dissemination of the Court's judgment to the national courts, with a cover letter stressing the necessity to give sufficient reasons for their decisions (see paragraphs 36‑37 of the judgment).

28793/02          Christian Democratic People's Party (CDPP), judgment of 14/02/2006, final on 14/05/2006[95]

19960/04          Popov No. 2, judgment of 06/12/2005, final on 06/03/2006

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

These cases concern a violation of the right to a fair hearing and to the peaceful enjoyment of possessions in that final judgments favourable to the applicants were quashed. The European Court found that by extending the time-limit for lodging requests for revision without giving any reasons to it, and by allowing the case to be freshly examined as an appeal rather than as a genuine revision, the Moldovan courts had infringed the principle of legal certainty and constituted a disproportionate interference with the applicants’ right to the peaceful enjoyment of his possessions (violations of Article 6§1 and Article 1 of Protocol No. 1).

The Istrate case also concerns the partial non-enforcement of a domestic judicial decision (violation of Article 6§1).

Individual measures: In the Istrate and Melnic cases, the European Court awarded the applicants just satisfaction in respect of pecuniary damage (equivalent to the sums awarded by the national courts) and non-pecuniary damage.

• information provided by the Moldovan authorities as regards the Popov case: In the reopened proceedings, the first-instance court decided in favour of the applicant, giving him title to the property in question. This decision was appealed and is still pending before the Supreme Court of Justice. The execution of the judgment has been stayed until the Supreme Court of Justice delivers its judgment.   

• Information is awaited on the current state of the proceedings before the Supreme Court of Justice.  

General measures:

• Information provided by the Moldovan authorities: The judgment of the European Court has been translated and published in the Official Journal of the Moldovan Republic(Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md) and sent out to the authorities concerned.

It would appear that the new Code of Civil Procedure entered into force on 12/06/2003. Therefore it remains to be assessed to what extent the new rules are in compliance with the Convention’s requirements.

• Information is thus awaited on the current rules governing the extension of the time-limit for lodging cassation applications. Information is also awaited on the measures taken or envisaged to ensure that judges comply with their obligations under the relevant provisions.

40663/98          Asito, judgment of 08/11/2005, final on 08/02/2006, and judgment of 24/04/2007 (Article 41) - Friendly settlement[96] [97]

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

2916/02            Luntre and others, judgment of 15/06/2004, final on 15/09/2004

29808/02          Avramenko, judgment of 06/02/2007, final on 06/05/2007

31530/03          Baibarac, judgment of 15/11/2005, final on 15/02/2006

18872/02+        Bocancea and others, judgment of 06/07/2004, final on 06/10/2004

39745/02          Cooperativa Agricola Slobozia-Hanesi, judgment of 03/04/2007, final on 03/07/2007[98]

18882/02          Croitoru, judgment of 20/07/2004, final on 20/10/2004

46581/99          Daniliuc, judgment of 18/10/2005, final on 18/01/2006

75975/01          Draguta, judgment of 31/10/2006, final on 31/01/2007

20940/03          Dumbraveanu, judgment of 24/05/2005, final on 24/08/2005

20567/02          Lozan and others, judgment of 10/10/2006, final on 10/01/2007

3021/02            Lungu, judgment of 09/05/2006, final on 09/08/2006

3417/02            Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006

1115/02            Mazepa, judgment of 10/05/2007, final on 10/08/2007[99]

14914/03          Moisei, judgment of 19/12/2006, final on 19/03/2007[100]

9898/02            Pastelli and others, judgment of 15/06/2004, final on 15/09/2004

74153/01          Popov, judgment of 18/01/2005, final on 18/04/2005 and of 17/01/2006, final on 17/04/2006

49806/99          Prodan, judgment of 18/05/2004, final on 10/11/2004 and of 25/04/2006,

                       final on 25/07/2006 - Striking-out

20864/03          Scutari, judgment of 26/07/2005, final on 26/10/2005

73562/01+        Sîrbu and others, judgment of 15/06/2004, final on 10/11/2004

22970/02          ŢÎmbal, judgment of 14/09/2004, final on 14/12/2004

These cases concern violations of the applicants' right to effective judicial protection due to continual failure to enforce final judicial decisions given in their favour between 1995 and 2000 (violations of Article 6§1) and the consequent violations of their right to respect for their property (violations of Article 1 of Protocol No. 1). The European Court indicated that in this respect insufficiency of means was not an adequate reason for a state authority not to comply with a judicial decision.

The Prodan and Popov cases concerned failure to enforce judicial decisions against a private party namely ordering the eviction of the occupants from the houses concerned and restoring ownership to the applicants respectively. In the Prodan case the failure to enforce judicial decision concerned the non-enforcement of a decision ordering the payment to the applicant of the market value of five apartments and the eviction of the occupants from the sixth.

Individual measures: The national judgments at issue, except those in the Prodan and Popov cases, were ultimately enforced after the applications before the European Court had been communicated to the respondent government.

            1) Prodan case: the decisions of 1997 and 2000 were partly enforced after the application before the European Court had been communicated to the respondent government. The European Court reserved the question of compensation for the prejudice resulting from the failure to restore the 6th flat to the applicant. By letter of 22/11/2005, the Moldovan delegation informed the Secretariat that on 06/05/2004 a friendly settlement was reached with the applicant under which she accepted 510 000 MDL in compensation for the 6th flat. The European Court has struck the case out of its list.

            2) Popov case: Upon a request for revision lodged by the occupants of the house at issue, the Court of Appeal quashed on 26/05/2004 the final decision of 05/11/1997 and reopened the proceedings, which were still pending at the time of the judgment of the European Court.

•Information is awaited on the present state of the court proceedings and, if need be, on measures taken or envisaged to accelerate them.

General measures:

            1) Legislative measures:

• Information provided by the Moldovan authorities: The problem of non-enforcement of judicial decisions is being dealt within the framework of the ongoing overall reform of the judiciary. In particular, in 2002 and 2003 four new codes (the Civil Code, the Criminal Code, the Code of Civil Procedure and the Code of Criminal Procedure) were adopted and entered into force. However, these codes are in the process of being modified and a working group has been created to that end. On 24/12/2004, the new Code on Enforcement Proceedings was adopted and it entered into force on 01/07/2005. Articles 243 and 246 of the Code of Civil Procedure have also subsequently been amended.

In particular, applicants who have won their cases before a national court may take judicial action against the persons or authorities responsible for late execution or non-execution of a final judicial decision by directly invoking the provisions of the Convention or Article 20 of the Moldovan Constitution. Moreover, Article 7 of the new Code of Civil Procedure authorises national courts to open civil proceedings on the basis of an application from a person claiming the protection of his fundamental rights and freedoms. In the context of this type of actions, applicants have the right to ask before the court for compensation of pecuniary and/or non-pecuniary damage as well as the reimbursement of costs. Several judgments have already been given in this type of actions against the Ministry of Finance and one against a municipal authority. The sums awarded by the judgment may also be indexed and applicants may ask for compensation for loss of profits.

• Information awaited: Copies and translations of the legislative provisions and judgments mentioned above.

            2) High level Round Table in Strasbourg: Given the importance of the problem and the number of countries affected by it, it was decided to hold a high-level Round Table involving representatives of the authorities concerned by this issue, e.g. in respect of Moldova the representatives from the Ministries of Justice and of Finance, and experts of the Council of Europe to discuss from the comparative perspective the reforms adopted or under way in some countries with a view to allowing the competent authorities to establish priorities and to prepare action plans. The Round Table was thus organised by the Department for the Execution of Judgments in the context of the new programme for assistance to the Committee of Ministers in the supervision of the execution of the European Court’s judgments. The thorough and constructive discussions have identified the main outstanding problems and led to a number of commonly agreed proposals for further reforms to ensure the state's effective compliance with judicial decisions. The conclusions of the Round Table appear on the web site of the Execution Department: http://www.coe.int/t/e/human_rights/execution/ConclusionsRoundTableRussiaJune07.doc.

• Information is awaited on the follow up given by the Moldovan authorities to the Conclusions of the aforementioned Round Table.

            3) Other fora of reflection within the Council of Europe: A Joint Programme has been launched by the European Commission and the Council of Europe for Moldova 2006-2009: Increased independence, transparency and efficiency of the justice system. The first expert assessment visit took place on 6-7/11/2007 to assess the situation concerning the enforcement of court decisions. A set of measures will be subsequently proposed with a view to improving the situation.

• More information in this respect would be useful.

4) Publication and dissemination: The judgments of the European Court have been translated and published in the Monitorul Oficial of 16/11/2004 and 31/01/2005. They are also published in the Bulletin of the Supreme Court of Justice of the Republic of Moldova.

- 1 case against the Netherlands

1948/04            Salah Sheekh, judgment of 11/01/2007, final on 23/05/2007

The case concerns the Netherlands authorities' rejection of the application for asylum made by the applicant, a Somali national and a member of the Ashraf minority. The authorities considered, on the basis of regular country reports drawn up by the Ministry for Foreign Affairs, that the applicant would run no real risk of treatment contrary to Article 3 if he returned to Somalia and that his return would not amount to unduly harsh treatment because he could settle in one of the areas of Somalia identified as “relatively safe”.

The European Court found that there could be no guarantee that the applicant, once in a “relatively safe” area, would be allowed to stay in that territory, and in the absence of any monitoring of deported, rejected asylum seekers, the Netherlands authorities could have no means of verifying whether or not the applicant had succeeded in gaining admittance. In view of the positions taken by the de facto authorities in the “relatively safe” areas, it seemed in the Court's view somewhat unlikely that the applicant would be allowed to settle there. There was a real chance that he would be removed and obliged to go to areas considered unsafe.

The European Court also took the view that the applicant's treatment before he left Somalia could be classified as inhuman within the meaning of Article 3 and that there was no indication that if he returned he would be in a significantly different situation from that from which he had fled.

Lastly, the Court considered that the applicant's treatment in Somalia was not meted out arbitrarily: if the protection offered by Article 3 were not to be rendered illusory, he could not be required to establish any further special distinguishing feature other than his membership of the Ashraf minority to show that he was at risk.

Thus, the Court found that the expulsion of the applicant to Somalia as envisaged by the Netherlands authorities would be in violation of Article 3.

Individual measures: On 10/03/2006, the applicant was granted asylum on the basis of a temporary categorical protection policy adopted by the Minister of Justice on 24/06/2005 in respect of asylum seekers coming from certain parts of Somalia. It would be reviewed when the European Court had reached a decision in this case, or in one of the similar cases pending before it.

• Information is therefore awaited on the individual measures envisaged to remedy the violation in respect of the applicant.

General measures: The judgment was published in numerous legal journals in the Netherlands (among others: NJB 2007/362 (special issue on this judgment), AB 2007/76, NJCM 32(2007) nr. 2 pp 111-113 and 179-194 and EHRC 2007/36).

• Information is awaited on further measures taken or envisaged by the Netherlands authorities to prevent new, similar violations in the future, in particular with regard to the following four points:

-           possible modification of the policy regarding Somali asylum seekers in situations similar to that of the applicant (see also “Individual measures” above);

-           possible modification of the general policy of deporting rejected asylum seekers to “relatively safe” areas of countries otherwise deemed “unsafe” or “relatively unsafe”;

-           any changes envisaged to the policy of requiring asylum seekers to show the existence of special distinguishing features beyond membership of groups whose members are exposed to treatment in breach of Article 3 in their country of origin;

-           dissemination of the judgment of the European Court.

The Secretariat has written to the Netherlands authorities concerning these points.

- 1 case against Norway

18885/04+        Kaste and Mathisen, judgment of 09/11/2006, final on 09/02/2007

This case concerns the violation of the applicants' right to a fair trial in that they could not question directly one of the accomplices whose deposition had been read out at the hearing, since the latter had invoked the right to remain silent (violation of Articles 6§§1 and 3(d)).

The European Court was not convinced that, had the applicants been given the opportunity to question the accomplice directly, this could not have been reconciled with his right to not answer those questions that might have incriminated him. The Court observed that the High Court considered that a co-accused could not be considered as a “witness” for the purposes of the provisions of the Convention. The Court, however, made it clear that, where a deposition served to a material degree as the basis for a conviction then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constituted evidence for the prosecution to which the guarantees provided by Article 6§§1 and 3 (d) applied. The European Court found therefore that the applicants were not given an adequate and proper opportunity to contest the statements on which their conviction was based (violation of Articles 6§§1 and 3(d)).

Individual measures: The applicants were sentenced to imprisonment. At the time of the delivery of the European Court's judgment, Mr. Mathisen had not yet started to serve his prison sentence. Mr. Kaste was released from the prison on the public prosecutor's orders in November 2006. Both applicants' requests for re-opening of the proceedings were accepted in December 2006 and January 2007.

• Assessment: No further individual measure seems to be needed.

General measures:

1) Publication and dissemination:The European Court's judgment has been published with comments at the web site of the police and the prosecuting authority, in the web site of the courts and also in Norwegian version at the judicial database. A letter containing more extensive comments on the judgment has been sent to all offices of the prosecuting authority and to all police districts, and it has also been published in internet. The judgment has been mentioned in several meetings and seminars and its implications has been described in several articles.

2) Possible legislative amendments: The Ministry of Justice is currently considering whether the wording of the relevant provisions of the Criminal Procedure Act should also be amended in order to reflect better the legal situation.

• Information is awaited in this respect.

- 35 cases against Poland

22860/02          Woś, judgment of 08/06/2006, final on 08/09/2006

The case concerns a violation of the applicants right of access to a court (violation of Article 6.1) in the context of his appeal before the Polish-German Reconciliation Foundation under the “first compensation scheme”, set up to compensate victims of nazi persecution.

The “first compensation scheme” was set up under an agreement of 16/10/1991 between Poland and the Federal Republic of Germany.  Under the scheme, in November 1991, the Polish government set up the foundation mentioned above, the remit of which was to compensate victims of nazi persecution from funds paid by the government of the Federal Republic of Germany. The “second compensation scheme” was established under joint statement of 17/07/2000 between a number of countries, including Poland, the Federal Republic of Germany, the United States and Israel.

Under the first compensation scheme, in February 1994, the Foundation's Verification Commission (Komisja Weryfikacyjna) awarded the applicant compensation for forced labour performed between 1941 and 1945.  As that decision did not take account of the fact that he had been deported, the applicant appealed to the Appeal Verification Commission (Odwalawcza Komisja Werfikacyjna), which dismissed his appeal.

In 1999 the Foundation's Management Board (Zarzad Fundacji) adopted Resolution 29/99 laying down that compensation was payable only to forced labourers who had been deported, with the exception of persons who had been subjected to forced labour before the age of 16 (in February 1944).  Subsequently, in March 2000, the applicant obtained additional compensation, but only in respect of forced labour performed before he had reached that age, the Foundation having taken the view that the deportation criteria were not met in his case.  The applicant challenged this decision to no avail before the Appeal Verification Commission and the Supreme Administrative Court.  The Supreme Administrative Court ruled that the administrative courts did not have jurisdiction to review such decisions.  In addition, under the Supreme Court's case-law, which was that the Foundation was not a public authority and that the right to awards by the Foundation was not a civil-law matter, the national courts were not competent to deal with entitlement claims.

The European Court held that, in the particular circumstances of the case, the Foundation's actions in respect of both compensation schemes engaged the responsibility of the Polish state (regard being had in particular to the manner in which the Foundation's management bodies had been set up) and that the right to apply to the Foundation for compensation for nazi persecution was a civil right for purposes of Article 6.1 of the Convention.  It held that the Foundation's decision-making bodies, the Verification Commission and Appeal Verification Commission, could not be regarded as tribunals for purposes of Article 6.1 in view, in particular, of the fact that their members were appointed and dismissed by the Foundation's Management Board and Supervisory Board respectively.  In addition, by ruling out all judicial review of these boards' decisions in individual cases, the domestic courts had left the applicant with no possibility of having them reviewed by a “tribunal”.

Individual measures: In 2001 the applicant unsuccessfully applied to the Foundation for compensation under the scheme dealing with forced or slave labour (the “second compensation scheme”).  He did not appeal to the Appeal Verification Commission and his complaints concerning those proceedings were rejected by the European Court on the ground of non-exhaustion of domestic remedies (admissibility decision of 1/03/2005).

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

Although the Polish authorities have provided information about the general measures taken to guarantee access to a court in cases similar to the applicant's (see above), it has not yet been shown that the applicant's claims might be examined by a tribunal for the time being.

• Information is awaited on the applicant's present circumstances, particularly whether he may have the complaints he made in the proceedings under the first compensation scheme examined by a “tribunal”.

General measures:

• Information provided by the Polish authorities:

            1) Publication and dissemination of the judgment of the European Court: The judgment has been published on the website of the Ministry of Justice www.ms.gov.pl and in the Bulletin of the Warsaw Information Office of the Council of Europe (No. 2006/III), with a commentary. It has been also sent out to the Presidents of courts of appeal.

            2) Cessation of payments: On 7/06/2006 the Foundation ceased paying compensation under the first compensation scheme under its Resolution 29/2002, the funds from the German government having been exhausted. The second compensation scheme ceased operation on 30/09/2006, the last payments under this scheme being exceptionally made until 30/12/2006. It is no longer possible to receive payments from either of the compensation schemes.

            3) Complaints brought under domestic legislation: The Polish Constitutional Court is currently examining a complaint lodged by a certain Stanisław K., supported by the Polish Ombudsman, according to which certain provisions of the laws governing the competence of administrative courts and their rules of procedure are contrary to Article 45§1 of the Polish Constitution, which guarantees the right of access to a court. These provisions exclude decisions of the Polish-German Reconciliation Foundation from the competence of administrative courts, even though they are in general empowered to control the acts of administrative authorities. The Constitutional Court will soon deliver a decision on the admissibility of this complaint.

Secondly, the Polish Ombudsman has referred a question on points of law (zapytanie prawne) to the Supreme Court as to whether final decisions of the authorities of the Polish-German Reconciliation Foundation concerning financial assistance may be subject to judicial review by ordinary courts.

In this respect the Ombudsman invoked the judgment of European Court delivered in this case and the Recommendation Rec(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. On 27/06/2007 the Supreme Court adopted a resolution confirming that such decisions of the Polish-German Reconciliation Foundation may be subject to judicial review by ordinary courts (case No 152/06).

Thirdly, on 12/02/2007 the public prosecutor brought a civil action before the Warsaw Regional Court on behalf of Ms. Walentyna B., contesting a refusal to award financial compensation under the second compensation scheme. These proceedings were instituted on the basis of the provisions of Code of Civil Procedure allowing the public prosecutor to bring action where it is necessary for the protection of the rule of law, citizens' rights and social interest.

• Information is awaited on the follow-up to these actions brought under of domestic law.

54723/00          Brudnicka and others, judgment of 03/03/2005, final on 03/06/2005

This case concerns the lack of independence and impartiality of the Maritime Disputes Appeals Chamber in proceedings brought in 1993 to determine the cause of a shipwreck in which relatives of the applicants had died (violation of Article 6§1). These proceedings resulted on 26/01/99 in a final decision by the Gdańsk Maritime Disputes Appeals Chamber, attributing responsibility to the crew on account its failure to exercise due diligence in that there was no coordination in the conduct of operations.

The European Court found that Polish law provided in principle no form of judicial review of the decisions delivered by maritime disputes chambers and that, as the presidents and vice-presidents of these chambers were appointed and removed from office by the Minister of Justice with the agreement of the Minister for Maritime Affairs, the relationship between them and the ministers was one of hierarchical subordination. It his concluded that a maritime disputes chamber as constituted under Polish law could not be regarded as an impartial court capable of ensuring compliance with the principles of fairness set out in Article 6 of the Convention.

Individual measures:

• Information provided by the Polish authorities: The applicants may bring actions in compensation for pecuniary and non-pecuniary damages before the ordinary courts on the basis of Articles 415 et seq. of the Civil Code. Lodging such application will oblige the judge to examine the question of the crew members' liability. Accordingly, seven cases arising out of this shipwreck, brought by the families of the crew members, are currently pending before the Szczecin Regional Court.

• Information is awaited concerning the state of these proceedings.

General measures: In its judgment, the European Court noted that Polish legislation on maritime disputes chambers has been amended recently, but the new legislation did not provide a right of appeal on points of law against a decision given by a maritime disputes appeal chamber, nor does it alter the procedure for appointing or removing from office the president and vice president of maritime disputes chambers.

• Information provided by the Polish authorities: Legislative modifications are envisaged. According to the Ministry of Transport and Construction, they cannot be adopted until new European Union legislation concerning maritime transport accident investigations has been adopted. These modifications will guarantee Presidents and Vice-Presidents the same security of tenure as that enjoyed by ordinary judges and will introduce the possibility of judicial review (new proceedings or a normal appeal) of all Maritime Chamber decisions. The Ministry of Transport and Construction is currently holding consultations on these matters with the principal actors and experts.

The legislative work entails the adoption of a new law on maritime courts and the amendment of the Sea Code, the Maritime Safety Law and the Law on Ordinary Courts. The new legislation should be adopted before the end of July 2007.

By letter of 18/05/2007 the authorities provided the Secretariat with a copy of the draft law on maritime courts. The Secretariat is currently assessing this information.

• Information is expected on the development of these reforms.

39510/98          A.S., judgment of 20/06/2006, final on 23/10/2006

This case concerns the applicant's detention between 1996 and 1998.

The European Court found that the applicant's detention between 01/05/1997 and 27/05/1997 and between 01/01/1999 and 06/01/1999 was unlawful (violations of Article 5§1), as not based on judicial decisions. During the first period the applicant was kept in detention under a bill of indictment and during the second one, under interim provisions on the entry into force of the amendments to the 1969 Code of Criminal Procedure and on the basis of fax from the Supreme Court stating that it would deal with Regional Court's request for prolongation of the detention.

Concerning the applicant's detention on basis of the prosecutor's decisions between February 1996 and May 1997, the European Court found a breach of applicant's right to be brought “before a judge or other officer authorised by law to exercise judicial power”, as the prosecutor did not offer the necessary guarantees at the material time (violation of Article 5§3).

Moreover, this case concerns also the lack of enforceable right to compensation for a detention contrary to the provisions of the Convention (violation of Article 5§5).

Individual measures: The applicant's detention and the criminal proceedings came to an end. The European Court found that the findings of violations constituted in themselves sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

• Assessment: In the circumstances, no further measure seems necessary.

General measures:

1) Violation of Article 5§1 (unlawful detention between 01/05/1997 and 27/05/1997): This case presents similarities to that of Baranowski (judgment of 28/03/00, Section 6.2), for which measures have been taken in this respect.

2) Violation of Article 5§1 (unlawful detention between 01/01/1999 and 06/01/1999): this violation stemmed from the application of interim provisions on the entry into force of amendments to the previous Code of Criminal Procedure of 1969. Considering the entry into force of the new Code of Criminal Procedure on 01/09/1998, no similar violations are possible in the future.

Moreover, the problem of unlawful prolongation of detention on remand is being examined in the context of the case of D.P. (judgment of 20/01/04, final on 20/04/04) and other similar cases (in 997th meeting, June 2007, Section 4.2), in which general measures have already been taken.

3) Violation of Article 5§3:  this case presents 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.

4) Violation of Article 5§5: The European Court concluded that, as the applicant's detention was effected in accordance with domestic law, no enforceable right to compensation existed in respect of the applicant's complaints under Article 5§1 and 5§3 of the Convention.

• Measures taken: The new Code of Criminal Procedure, which entered into force on 01/09/1998, extended the scope of application of the compensation procedure. According to its Article 552§4, compensation may be awarded for an “undoubtedly unjustified detention” (see the decision of 09/10/2003 on the admissibility in this case, p. 16).

• Recent developments: By letters of 18/05/2007 and 13/08/2007 the Polish authorities provided information on the right to compensation for a detention contrary to the provisions of the Convention under the Polish legislation currently in force. The Secretariat is assessing this information.

52589/99          Skibińscy, judgment of 14/11/2006, final on 26/03/2007[101]

This case concerns an interference with the applicants' right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No 1) in that they were deprived de feacto  of the use of their land from 1994 until 31/12/2003, when the local development covering their land plan expired. This plan was amended in 1994 tp include the construction of a road on part of the land. Moreover, the applicants had no effective entitlement for compensation throughout this period, 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: The Local Development Plan expired at the end of 2003 and in April 2004, the municipal authorities granted her initial planning permission (§27 of the judgment).

The European Court awarded just satisfaction in respect of the costs and expenses of the proceedings before the Court and reserved the question of the application of Article 41 in respect of just satisfaction for pecuniary and non-pecuniary damage.

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).

• Information is awaited on measures envisaged or taken to avoid further similar violations, and especially on those aimed at guaranteeing compensatory measures to persons in a position similar to that of the applicants.

By letter of 27/08/07 the authorities provided information on general measures. The Secretariat is currently assessing this information.

11562/05          Byrzykowski, judgment of 27/06/2006, final on 27/09/2006

This case concerns the violation of the right to life due to the failure to carry out an effective investigation into the death of the applicant's wife and the serious damage to his son's health (violation of Article 2).

In July 1999 the applicant's wife was about to give birth to their child and was admitted to the Wrocław Medical Academy hospital. The physicians decided to perform a caesarean section and gave her an epidural, as a result of which she went into a coma. All resuscitation efforts failed and she died on 31/07/1999. Their son, born by caesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical attention.

At the applicant's request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. Due to the lengthy process of taking evidence, and in particular forensic reports, these proceedings were stayed once, three times discontinued and three times resumed. They are still pending.

In August 1999 the applicant also requested that disciplinary proceedings be brought. Those proceedings were stayed, resumed and then stayed again on 25/04/2005 and are still pending.

Moreover, in July 2002 the applicant also lodged a compensation claim against the hospital before a civil court. On 07/04/2003 those proceedings were stayed, pending the outcome of the two other sets.

The European Court noted that three sets of proceedings had been and were still pending for periods ranging from four to almost seven years and that the applicant had used all the remedies available to him concerning  the alleged medical malpractice. It observed that after almost seven years, there had been no final decision in any of them.

Moreover, it observed that the authorities repeatedly referred to the other sets of pending proceedings as a justification for staying them or the refusals to resume them.

However, having regard to the overall length of the period which had elapsed since the death of the applicant's wife and also to the fact that the procedures instituted seemed rather to have hindered the overall progress in the proceedings, the Court concluded that the procedures applied in order to elucidate the allegations of medical malpractice did not resulted in an effective examination into the cause of the death of the applicant's wife

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

• Information provided by the Polish authorities: Following the police investigation of the alleged manslaughter of the applicant's wife the Wrocław District Prosecutor found on 18/05/2006 that there was insufficient evidence. This finding, which was based on expert medical opinions supplied by the Universities of Krakov, Katowice, Poznań and Bialystock, became final on 7/06/2006. The disciplinary proceedings are still suspended but given the Prosecution's decision not to prosecute, they should be discontinued soon.

The civil proceedings for compensation, pending before the Wrocław Regional court, have been resumed and are subject to administrative supervision. Four hearings have taken place. At the last hearing, held on 17/01/2007 a witness was heard. The applicant had previously been ordered to contribute an advance on the costs of obtaining medical opinions.

The Registry of the District Court contacted the experts within the universities of the other Polish cities and it transpired that opinions would take approximately six months to prepare. This opinion will probably be prepared by the University of Szczecin.

• Information is awaited concerning the progress of the civil proceedings as well as the present state of the disciplinary proceedings and its acceleration.

General measures: The European Court found no indication of any failure on the part of the state in its obligation to provide a procedure to determine the criminal, disciplinary or civil responsibility of persons who might be held answerable (§ 106 of the judgment). The finding of a violation in this case resulted from the Court's assessment of how this procedure had worked in the concrete circumstances.

• Information provided by the Polish authorities: The Polish authorities have undertaken reforms with a view to:

            1) Making judicial experts more efficient: On 27/12/2006 the government laid before Parliament a Bill on experts in judicial proceedings. The text was referred to the Parliament's Committee on Justice and Human Rights which examined it at first reading on 16/02/2007. The Bill lays down guidelines for the preparation of expert opinions for courts and other authorities, aiming in particular to ensure the professional status of experts, their impartiality and their respect for the law. Except in certain specific circumstances - including those laid down by law - experts may not refuse to draw up an opinion in any proceedings led by a prosecutor, a judge or other state authority (section 46, sub-paragraph 1 of the Bill). In addition, where an opinion has been prepared in a defective manner, with insufficient diligence, after the time-limit set or in a manner inconsistent with the terms of reference laid down by the body competent for the proceedings, the latter may reduce or even cancel the expert's fee.

            2) Introducing a remedy in case of excessive length of investigations: On 21/12/2006 the Minister of Justice wrote to the Polish Ombudsman suggesting that certain provisions of the Code of Criminal Procedure were incompatible with the requirements flowing from the European Court's case-law in relation to Article 13 and indicating his intention of taking steps to introduce an effective national remedy in case of excessively lengthy pre-trial investigations.

            3) Changing the disciplinary procedure before the Medical Association: The Minister of Health is currently preparing an amendment to the 1989 Act on the Medical Association, the main effect of which would be to broaden injured parties' rights in disciplinary proceedings. At present, their status is limited to that of witness. It is also proposed to make hearings before the professional body public, to introduce the possibility of appealing its decisions before criminal courts, to increase the range of disciplinary sanctions available and to fix time-limits for each phase of disciplinary proceedings.

By letter 24/08/2007 the authorities provided the Secretariat with the draft amendment to the 1989 Act on the Medical Association. The Secretariat is currently assessing this information.

• Information is awaited concerning the development of these reform proposals.

                       - Cases concerning the monitoring of prisoners’ correspondence

31583/96          Klamecki No. 2, judgment of 03/04/03, final on 03/07/03

20841/02          Drozdowski, judgment of 06/12/2005, final on 06/03/2006

10816/02          Kozimor, judgment of 12/04/2007, final on 12/07/2007[102]

51895/99          Kwiek, judgment of 30/05/2006, final on 30/08/2006

73988/01          Łuczko, judgment of 03/10/2006, final on 03/01/2007

14450/02          Maksym, judgment of 19/12/2006, final on 19/03/2007[103]

37641/97          Matwiejczuk, judgment of 02/12/03, final on 02/03/04

42083/98          Mianowski, judgment of 16/12/03, final on 16/03/04

62323/00          Najdecki, judgment of 06/02/2007, final on 06/05/2007[104]

6390/03            Nowicki, judgment of 27/02/2007, final on 27/05/2007

64284/01          Oleksy, judgment of 28/11/2006, final on 28/02/2007

92/03               Pisk-Piskowski, judgment of 14/06/2005, final on 14/09/2005

64283/01          Tomczyk Prokopyszyn, judgment of 28/03/2006, final on 28/06/2006

63905/00          Wasilewski, judgment of 06/12/2005, final on 06/03/2006

These cases concern, first of all, interferences in the applicants' right to respect for their correspondence while they were in detention on remand (violations of Article 8).

In the first two cases, and also those of Kwiek and Wasilewski, the European Court found that the monitoring of the applicants' correspondence before 01/09/98 (the date of entry into force of the 1997 Code of the Execution of Sanctions) was not “in accordance with the law", as the relevant Polish law in force at that time did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on public authorities in this field. In addition, in the Kwiek case, the European court concluded that the surveillance of the applicant's correspondence with the Constitutional Court and the European Court since that date was “not provided by law” as it was against the law applicable at the material time.

The Kozimor, Łuczko, Maksym, Matwiejczuk, Mianowski, Nowicki, Oleksy, Pisk-Piskowski, Tomczyk Prokopyszyn and Wasilewski cases concern the fact that the correspondence of the applicants with the organs of the Convention, and, in the case of Kozimor – also with the Chancellery of the Senate, was marked with the word "censored". The European Court found that these inscriptions probably meant that the envelopes had been opened by the domestic authorities, despite the fact that the relevant law (the 1997 Code of Execution of Criminal Sentences and the Rules of Detention on remand of 1998) allowed such supervision only in the presence of the detainee. Moreover, the censorship of the applicants’ correspondence with the defence counsel in the Najdecki and Kozimor cases was also “contrary to domestic law”, as contrary to the provisions of the Code of Criminal Procedure of 1997.

In the Maksym and Wasilewski cases, taking account of this latter element and the fact that the applicants’ letters were posted with significant delays, the Court also found a violation of Article 34.

In addition, the Klamecki case concerns the violation of the applicant's right to respect for his family life due to excessive restrictions of his contacts with his wife between August 1996 and August 1997 (violation of Article 8).

Moreover, the European Court found that the applicants' pre-trial detention was excessively long (in the Klamecki, Matwiejczuk, Najdecki and Oleksy cases) and that, in the Klamecki case, the detention was ordered by a public prosecutor in breach of the applicant's right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3).

The Klamecki case also concerns the non-adversarial character of the procedure for reviewing the lawfulness of the applicant's detention, since neither the applicant nor his counsel were given the possibility to participate (violation of Article 5§4).

Finally, the European Court found that the criminal proceedings brought against the applicant (in the Matwiejczuk case), as well as the civil proceedings dealing with the applicant's compensation claims (in the Mianowski case) had lasted unreasonably long (violations of Article 6§1).

Individual measures: The applicants are no longer in pre-trial detention and the European Court granted just satisfaction in respect of non-pecuniary damage in most of these cases.

• Information provided by the Polish authorities (letter of 30/04/2007): Under domestic law, applicants and persons who claim infringement of their right to respect for their correspondence may claim compensation from the State Treasury under Article 448 read in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006).

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

General measures:

            1) Violations of the right to be brought promptly before a judge and to participate in proceedings to challenge the lawfulness of detention (Article 5§3 and 4): These cases present similarities to that of Niedbała (judgment of 04/07/2000), closed by Resolution ResDH(2002)124, following the reform of the Code of Criminal Procedure). 

            2) Excessive length of detention on remand (Article 5§3): They present similarities to that of Trzaska (last examination at the 997th meeting, June 2007, Section 4.2, Interim Resolution CM/ResDH(2007)75).

            3) Excessive length of the civil and criminal proceedings (Article 6§1): The cases present similarities to a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures (see in particular Podbielski and Kudła, Interim Resolution CM/ResDH(2007)28, 992nd meeting, April 2007, Section 4.2).

            4) Failure to respect detainees' correspondence (Article 8) and in the Wasilewski case violation of Article 34:

• Information provided by the Polish authorities (letter of 30/04/2007):

a) Legislation in force: The Code of Execution of Criminal Sanctions of 1997 was amended in September 2003. Under the new law, the correspondence of convicted persons with, inter alia, their lawyers (Article 8§1) or the justice administration and Strasbourg organs (Articles 102§11 Section 11 and Article 103§1) cannot be censored or stopped; but can only form the object of supervision conducted by opening the letters in the presence of the convicted person, where there is a reasonable risk that the letters might contain prohibited objects (Articles 8§3 and 103§2).

As far as detainees are concerned, Article 217a§1 of the Code provides that their correspondence may be supervised by the organ at whose disposal they remain (a public prosecutor or a court). Unless the law provides otherwise, detainees shall enjoy at least the same rights as those guaranteed to convicted persons serving a sentence of imprisonment under the ordinary regime in a closed prison (Article 214§1).

More detailed rules governing the control of the detainees' and convicted persons' correspondence are included in the Rules for Executing Prison Sentences of August 2003 and the Rules of Detention on Remand of 25/08/2003 (both entered into force on 01/09/2003).

2) Draft legislative amendment to the Code of Execution of Criminal Sanctions:  the Ministry of Justice has prepared a draft bill which has been already submitted to the Council of Ministers. This draft amendment aims among other things to

-           Eliminate the differences between the treatment of convicted persons' correspondence with their lawyers on the one hand, and certain institutions, including the judiciary and the Convention organs on the other. Consequently, those issues will be regulated by a new Article 8a, according to which the correspondence of such persons shall not be censored and shall be handed without delay to the addressee. It may be monitored only if there is a suspicion that the letter contains objects which it is forbidden to possess, keep, handle, transmit, send or commercialise. In such a case, the letter may be opened in the presence of the convict and the competent judge of execution of sanctions shall be informed.

-           Introduce a clear provision that the rule concerning convicts also apply to other detainees (a new provision in Article 242 §1).

-           Lay down new, simpler rules concerning the handling of correspondence to detainees (new Article 217b): correspondence is in general transmitted to the detainee through the body responsible for his or her detention. However, correspondence with the Convention organs is to be handled directly to the addressee (new Article 217b§2).

c) Publication, dissemination and awareness measures: Public prosecutors and judges have been instructed to pass on detainees' correspondence, including their correspondence with the organs of the Convention to the addressees.

In a letter dated 28/06/2005, the Polish authorities said that the Minister of Justice had sent a circular to Appeal Court presidents drawing their attention to the European court's conclusions concerning the violation of Article 8 in the Matwiejczuk case and asking them to send it out to the judges under their administrative responsibility and to those responsible for examining detainees' correspondence who should not stamp letters with the word “censored”.

In a further letter dated 22/11/2005, the authorities informed the Secretariat that successively in January and September 2005, the Minister of Justice had again drawn Appeal Court presidents' attention to the need to take measures to guarantee respect for detainees' correspondence, particularly by ensuring that their mail should be sent to them in individually addressed envelopes. Following this request, it transpired that there had been lapses in respect for detainees in some cases.

The judgments of the European Court in the Klamecki No. 2 and Matwiejczuk cases have been published on the Internet site of the Ministry of Justice (http://www.ms.gov.pl)

• Additional information is awaited on:

- the present practice of prison staff when supervising detainees' correspondence, and

- the follow-up of the draft amendment to the Code of Execution of Criminal Sanctions.

            5) violation of the right to respect for his family life in the Klamecki No. 2 case (Article 8)

• Information is awaited concerning the dissemination of the European Court's judgment to the competent courts.

• Recent developments: By letters of 07/06/2007 and 23/10/2007 the Polish authorities provided information on the general measures. The Secretariat is currently assessing it.

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

33870/96          Fuchs, judgment of 11/02/03, final on 11/05/03

51837/99          Beller, judgment of 01/02/2005, final on 06/06/2005

49961/99          Bogucki, judgment of 15/11/2005, final on 15/02/2006

4054/03            Boszko, judgment of 05/12/2006, final on 05/03/2007

43702/02          Grabiński, judgment of 17/10/2006, final on 17/01/2007[105]

40732/98          J.S. and A.S., judgment of 24/05/2005, final on 12/10/2005

38049/02          Kaniewski, judgment of 08/11/2005, final on 08/02/2006

52495/99          Koss, judgment of 28/03/2006, final on 28/06/2006

77420/01          Kryszkiewicz, judgment of 06/03/2007, final on 06/06/2007[106]

77795/01          Orzechowski, judgment of 24/10/2006, final on 24/01/2007

77741/01          Piekara, judgment of 15/06/2004, final on 15/09/2004

19607/03          Sito, judgment of 09/01/2007, final on 09/04/2007[107]

36431/03          Skowroński, judgment of 24/01/06, final on 24/04/06

13568/02          Stevens, judgment of 24/10/2006, final on 24/01/2007

67979/01          Szenk, judgment of 22/03/2005, final on 22/06/2005

33777/96          Urbańczyk, judgment of 01/06/2004, final on 01/09/2004

These cases concern the excessive length of certain proceedings concerning civil rights and obligations before the administrative authorities and the Supreme Administrative Court (violations of Article 6§1).

In all these cases, the European Court indicated that the length of proceedings was due to the inactivity of administrative authorities (particularly local administrative authorities in the Beller, Grabiński, Kaniewski, Koss and Szenk cases) which were examining the applicants' requests and of the Supreme Administrative Court when examining the appeals against the administrative decisions.

Individual measures:

            1) Fuchs case: Both sets of proceedings at issue are now closed.

            2) Beller case:

• Information provided by the Polish authorities (letters of 8/03/2006 and 29/03/2007): On 14/10/2005, following an appeal brought by the applicant, the Warsaw District Administrative Court overturned the wojewoda decision of 23/07/2001 and referred the matter to the Mayor of Warsaw to be reconsidered. This nonetheless requires the wojewoda to consider an application introduced by the Social Security Agency.

            3) Szenk case

• Information provided by the Polish authorities (letter of 29/03/2007): The matter is still pending before the Mayor of Warsaw pending the outcome of court proceedings to remove the communal status of the building at issue, which is a necessary condition for its restitution to the applicant. The municipal authorities are collecting together the documentation needed to launch such proceedings.

            4) J. S. and A. S. case:

• Information provided by the Polish authorities (letters of 05/02/2006 and 30/04/2007): On 24/01/2006 and 21/03/2006 the Ministry of Agriculture and Rural Development issued a decision partially annulling the nationalisation of the land at issue. The decision of 21/03/2006 is enforceable but has been appealed by the opposing party. This appeal is being examined by the Supreme Court.

In the framework of the enforcement of this decision - but only once it becomes final - the applicants may be granted a part of the disputed property and they may obtain compensation for the remaining part.

            5) Skowroński case:

• Information provided by the Polish authorities (letter of 10/10/2006): On 27/02/2007 the starosta issued a partial decision defusing to award compensation to the applicant, who has consequently appealed.

            6) Koss case: By a decision of 12/07/2006, the Mayor of Warsaw assumed ex officio competence for the proceedings concerning the applicant's application for perpetual usufruct, and dismissed the application on 22/12/2006. Upon appeal by the applicant, this decision was overturned and a fresh examination ordered.

• Additional information is awaited on the state of domestic proceedings in the Beller, Szenk, J.S. and A.S., Koss and Skowroński cases. Concerning the Kaniewski, Grabinski and Kryszkiewicz cases, information is awaited on the progress of domestic proceedings and on their acceleration, if needed.

• Recent developments: By letters of 5/06/2007 and 5/09/2007 the Polish authorities provided information on the state of domestic proceedings in the cases of J.S.and A.S., Kaniewski and Skowroński. The Secretariat is currently assessing this information.

General measures:

• Measures taken:

            1) Publication and dissemination

The Fuchs and Piekara judgments have been sent out to the authorities competent for construction matters and published on the internet site of the Ministry of Justice (www.ms.gov.pl). The judgments delivered in the Beller, Fuchs, Piekara, Szenk and Urbańczyk cases have been sent out to the Supreme Administrative Court and to Voivodship Administrative Courts. The J.S and A.S. judgment has been sent out to officials of the Ministry of Agriculture and Rural Development and published on the internet site of the Ministry of Justice.

• Information is awaited onthe publication of the judgments in the cases of Beller and Szenk.

2) Excessive length of proceedings before the Supreme Administrative Court:

- Organisation and functioning of the administrative court system:

The Act on the Organisation of Administrative Courts and of the Act on Proceedings before Administrative Courts entered into force on 1/01/2004. These laws institute a two-instance system of administrative courts (the newly created voivodship administrative courts and the Supreme Administrative Court) and provide solutions to accelerate procedures, such as mediation and summary proceedings.

Before their entry into force, some two years were required for the Supreme Administrative Court or one of its 11 satellites throughout the country to consider an appeal, taking into account the constantly growing backlog of cases (around 70 000 new cases a year) and the insufficient number of judges (300). The reform set up 16 Voivodship Administrative Courts and personnel numbers were increased so that, as of 30/09/2005 there were 424 judges, 125 trainee judges (asesorzy) and 84 judicial assistants (referendarze sądowi).

On 1/01/2004, some 92 600 cases were transmitted to the voivodship administrative courts and during the first year about 59 000 new cases were brought before them. In 2004, these courts examined around 83 000 cases, leaving a backlog of approximately 68 000 cases. At the end of 2004, this figure had been reduced to about 68 000 and to 43 780 cases on 31/12/2005. In 2006, the voivodship administrative courts had been seised of 62 436 new cases with a backlog of 27 556 cases, reduced by 37% as compared to the previous year. The present mean duration of an appeal has been estimated at 5 months (approximately 3 months before the Warsaw voivodship administrative court and 15 months before the Krakow voivodship administrative court).

According to the President of the Supreme Administrative Court (letter of 20/10/2005), the excessive length of some administrative proceedings which took place in the 1990s was also linked to the structural reorganisation of the Polish state which took place at the beginning of the decade.

            - Administrative courts' control over administrative authorities:

The Act of 30/08/2002 on Proceedings before Administrative Courts contains provisions to ensure control of the functioning of administrative authorities.

It allows parties to administrative proceedings to lodge complaints before the court concerning the inactivity of administrative authorities. Article 154 provides that where a court judgment finding such inactivity has not been enforced, or in cases of administrative inactivity following a judgment quashing an administrative decision, parties may lodge a fresh complaint before an administrative court, requesting that the authority in question be fined. Moreover, Article 155 provides that if the administrative court, when examining the case, finds substantial errors in law or circumstances which might give rise to such errors, it may deliver a decision informing the competent authority or its superior authority about such errors. The authority concerned then has to take a position and inform the court within 30 days.

Moreover, the law of 17/06/2004 on complaints against excessive length of judicial proceedings (examined in context of the Kudła case, judgment of 26/10/2000, Interim Resolution ResDH(2007)28, 992nd meeting, April 2007) also concerns proceedings before administrative jurisdictions.

In a letter of 11/09/2006, the President of the Supreme Administrative Court took the view that the measures set out above guarantee an effective domestic remedy against excessive length of proceedings.

            3) Excessive length of proceedings before administrative bodies:

- Construction law:

Following decentralisation, i.e. the administrative reform which entered into force on 01/01/1999, the powers of the central administrative building supervision body were restricted. Proceedings under the Building Act are conducted at first instance before the building supervision inspector of the powiat or the starosta and at second instance before the building supervision inspector of the voivodship or the voivod. An important amendment to the Building Act, aiming at simplifying and accelerating proceedings, entered into force on 11/07/2003 and introduced a disciplinary provision in respect of the administrative authorities. According to this provision, an administrative authority dealing with a building permit issue shall give its decision within 65 days, otherwise the superior authority may impose a financial penalty on it.

- Requests for the right of usufruct in respect of nationalised land in Warsaw:

The Ministerof the Interior and Administration asked the Mayor of Warsaw to send out the judgments in the Beller and Szenk cases to civil servants of the Warsaw-Centre Municipal Office, which deals with such requests.

- Length of proceedings before administrative authorities in general:

In his letter of 11/09/2006 mentioned above, the President of the Supreme Administrative Court stated that he was not in a position to assess whether the excessive length of such proceedings stems from a systemic problem. In his opinion, it is up to the Minister of the Interior and Administration to make an assessment of this issue.

By letter of 25/04/2007, the Minister of the Interior and Administration presented legislative changes which might be envisaged to improve the promptness and efficiency of administrative proceedings, including:

- introduction of “participative proceedings”, namely the obligation to appoint a representative when the number of parties to a case reaches a certain level (20 for example);

- introduction of a legal prohibition of abuses of administrative law, in particular a ban on the repeated extension of the legal time-limit for dealing with a case (Article 36 of the Code of Administrative Procedure);

- shortening legal time-limits for examining cases, or imposing financial penalties on administrative organs which do not respect the legal time-limits (as in construction law, see below);

- introduction of “tacit agreement” by administrative organs: when an administrative body does not deliver its decision within a certain time (for example 30 days), it is assumed, under certain conditions, that a tacit decision in favour of the applicant has been rendered;

According to the Minister of the Interior and Administration, some of these proposals do not fall within his competence and should therefore be accepted by other ministers concerned.

In addition, Parliament is examining legislative texts to enhance the decentralisation and distribution of tasks within the public administration.

▪ Outstanding issues:

• Information is awaited concerning:

-  whether the judgments delivered in the Szenk and Beller cases have been sent out to the civil servants of the Warsaw-Centre Municipal Office

-  the follow-up to the proposals made by the Minister of the Interior and Administration on the reform of administrative procedure.

• Recent developments: By letters of 18/05/2007, 26/10/2007 and 06/11/2007 the Polish authorities provided information on the certain general measures taken and/or envisaged (including the workload of administrative courts). The Secretariat is currently assessing this information.

- 4 cases against Portugal

41537/02          Gregório de Andrade, judgment of 14/11/2006, final on 26/03/2007

The case concerns the fact that the applicant was unable, due to the State Counsel’s lateness in notifying him of a certain judgment, to appeal before the Plenary of the Supreme Administrative Court to resolve a conflict in case-law raised by this judgment, given by that same court, in proceedings concerning him and related to pension rights (violation of Article 6§1).

The State Counsel had initially brought these proceedings on behalf of the applicant.

The European Court considered that the State Counsel, given that he clearly had no intention of pursuing the affair, should have informed the applicant in good time of the content of the judgment at issue so that he might instruct counsel of his own in order to do so. It noted that he had genuine reasons for wishing to bring the matter before the Supreme Administrative Court in the light of the uncertainties which reigned at the material time.

Individual measures: The applicant died in 2004. Subsequently to the facts of this case, the plenary chamber of the Supreme Administrative Court gave a ruling on the issue of the pension rights also at issue in the applicant’s case, rejecting on an appeal for harmonisation of jurisprudence pension claims made by persons in the same situation as the applicant.

• Assessment: Therefore, no individual measure seems necessary.

General measures: The Secretariat wrote to the Portuguese authorities to invite them to present an action plan for the execution of the European Court’s judgment.

• At the outset, information was in particular requested on the Portuguese procedures for the notification of judgments, in particular as regards proceedings of the kind at issue in the judgment. In addition, information is awaited on the publication of the judgment and its dissemination to the relevant authorities, in particular the State Counsel’s office.

• The Portuguese authorities submitted information on notification of judgments on 30/10/2007. This information is currently examined by the Secretariat.

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

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

Individual measures: At the 987th meeting (February 2007), the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child have been identified. According to information recently submitted by the Portuguese authorities, the representative of the applicant and the agent of the Portuguese government to the Court have agreed that the agreement regarding the applicant’s visiting rights should be modified in the light of the interests of the child.

To discuss this, and other issues, a meeting was held before a judge on 20/06/2007 at which both the applicant and the child’s mother, as well as their respective representatives, were present. At this meeting it was agreed between the parties that, before a new regime on visiting rights could be determined, the child in question, as well as both the parents, will undergo psychological examination. The judge moreover ordered that the subject of these examinations was to be determined within 10 days. Finally, the judge ordered that a request be sent to the Forensic Institute, emphasising the urgency of the matter, so that an appropriate institute for conducting these examinations would be designated.

• Information is awaited on the follow-up to this meeting.

General measures: A copy of the judgment has been sent to all national authorities concerned, including to the Instituto de Reinserção Social (the organisation which advises courts on matters related to parental rights). The judgment has also been translated and published on the internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Instituto de Reinserção Social were requested to adopt appropriate measures in order to prevent new, similar violations in the future.

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

15996/02          Magalhães Pereira No. 2, judgment of 20/12/2005, final on 20/03/2006

The case concerns the failure to review promptly the lawfulness of the applicant's detention in a custodial clinic (violation of Article 5§4). The review should, according to domestic law, have taken place on 20/01/2002 at the latest, but only took place on 24/05/2002, because the applicant's medical examination had not been conducted in time on account of the shortage of staff at the clinic in which the he was detained. In addition the Institute for Forensic Medicine, which the domestic court then asked to conduct the investigation, had already exceeded its annual “ceiling”, which had been determined by domestic legislation.

Individual measures: The applicant was released on 24/05/2002.

• Assessment: No individual measure therefore seems necessary.

General measures: The Portuguese authorities have provided extensive information as regards the general measures taken and envisaged in this case. In August 2004 a law was adopted which provides for the possibility that a part of the amount paid by courts to health care institutions, up to a maximum of 50%, is paid directly to the doctors or experts who conduct the forensic medical examination. Until then, the doctors or experts did not receive remuneration for the examinations they conducted, which is why they often refused to do so, especially if they had already reached their annual “ceiling”. The Ministry of Justice intends to propose to the Ministry of Health to encourage the health care institutions to apply this provision.

In addition, the capacity of several regional offices of the National Institute of Forensic Medicine is being increased: the recent renovation of the Lisbon office has allowed the creation of a Department for Forensic Psychiatry, additional psychiatrists have been recruited for the office in Coimbra and for the Porto office (which is the region at issue in the present judgment), the construction of a new building is foreseen, which would allow for the creation of a Department for Forensic Psychiatry.

As regards the legal “ceilings” for the number of examinations which may be conducted per expert per year, the Portuguese authorities state that a legislative change is not necessary. The current law provides that the “ceilings” apply without prejudice to the general obligation to cooperate with the judicial authorities. The Ministry of Justice intends to propose to the Ministry of Health to send a circular letter to all regional health authorities to draw their attention to the latter provision and to the fact that legal “ceilings” need to be approached in a flexible manner, refusals to conduct examinations not being permitted when the liberty of citizens is at issue.

Finally, the Ministry of Justice is in the process of developing institutional cooperation between the National Institute of Forensic Medicine and the Prison Services with a view to avoiding situations in which psychiatrists are asked to conduct forensic examinations of their own patients.

A translation of the European Court's judgment was published on the official website (www.gddc.pt).

• Information is awaited regarding whether the Ministry of Health is now encouraging health care institutions to make alternative arrangements as regards the payment for examinations, a possibility provided in the August 2004 law, and whether such institutions are making use of this possibility. In addition, information is awaited as regards the progress in the enlargement of the capacity of the offices of the National Institute of Forensic Medicine. Information is in particular expected about the circular letter from the Ministry of Health to the regional health authorities as regards the legal “ceilings” referred to above and on the current practice as regards these “ceilings”. Finally, information is awaited as regards the progress in the co-operation between the National Institute of Forensic Medicine and the Prison Services.

                       - Case concerning freedom of expression

43924/02          Almeida Azevedo, judgment of 23/01/2007, final on 23/04/2007

The case concerns an infringement of the applicant's right to freedom of expression (violation of Article 10). The applicant, at the time Chairman of the Arouca section of the Social Democrat Party, wrote an opinion article in a local newspaper in which he criticised the Mayor of Arouca concerning the planning of a road to the town. He was subsequently convicted of criminal libel for certain statements he had made in this article. He was sentenced by the Court of Appeal of Porto to 180 day-fines and was ordered to pay 4 000 euros in damages to the Mayor in question.

The European Court found that the statements at issue could hardly be considered excessive, in particular taking into account the context in which they were made. In addition, the Court found that the domestic courts had failed to examine the exceptio veritatis regarding certain factual circumstances described in the article. Thus, the Court considered that the respondent state failed to strike a correct balance between the need to protect the applicant's right to freedom of expression and the need to protect the rights and the reputation of the person against which the statements were directed.

Individual measures: The European Court awarded just satisfaction, which included a reimbursement of the 4000 euros paid in damages.

• Information is awaited on other measures taken or envisaged by the respondent state to erase the consequences of the violation for the applicant.

General measures:

• Information is awaited on the measures taken or envisaged by the Portuguese authorities to prevent new, similar violations in the future.

- 76 cases against Romania

31679/96          Ignaccolo-Zenide, judgment of 25/01/00

This case concerns the absence of adequate and sufficient measures taken by the Romanian authorities to enforce a court injunction (issued in December 1994 based on the Hague Convention) requiring the applicant's children to be returned to her. In spite of this finding of a violation, court decisions affording visitation rights to the applicant were not enforced due to the fact that the father of the children refused to abide by them and appealed them before the superior courts, obtaining their suspension (violation of Article 8).

Individual Measures: No measure is required since the children have reached their majority (the younger daughter in September 2002). The European Court awarded the applicant just satisfaction for non-pecuniary damage.

General Measures:

            1) Violation of Article 8:

- Law No. 369/2004 on the implementation of the Hague Convention was adopted by the Parliament on 15/09/2004, with a view to enhancing the efficiency of proceedings concerning the return of abducted children. Among the new measures mentioned are the creation of a special court (the Bucharest court for children and family issues) competent to deal with requests for the return of children under the Hague Convention, and the establishment of a procedure through which the court may impose a deterrent fine on a parent who refuses voluntarily to fulfil his or her obligation to return a child or to allow access rights.

Study of the provisions and the application of Law No. 369/2004 is a part of the initial training of legal trainees in family law and “European Convention of Human Rights”. Trainees analyse the Court's judgment in Ignaccolo-Zenide in relation to the provisions of the Hague Convention. The application of Law No. 396/2004 is also a priority in continuous training and is an element of the subjects of the seminars organised by the Institute in the series of training on “Justice for minors” and “The European Convention - civil aspects”.

Nevertheless it seemed that the law did not explicitly provide the possibility for the abducted child to undergo psychological therapy in order to prepare him or her for being reunited with the bereft parent, such a possibility existing only if access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent. In addition, the law does not explicitly provide the possibility for bereft parents to obtain provisional access rights pending the outcome of return proceedings based on the Hague Convention.

However, the Romanian authorities consider that these issues are regulated either indirectly in the new law or in other legal acts:

- Psychological care: A measure of psychological care of the child during the procedure to examine the request for return may be taken by a judicial authority under Law No. 369/2004. As the Law provides, in Article 9, the obligatory presence of a psychologist during the hearing of the child, the legal authority may decide that the same psychologist, or a psychologist of the Directorate General of Social Assistance, assists the child.

- Access right: In response to the requests of the Superior Council of Magistracy, Romanian magistrates expressed a majority opinion in favour of granting an access right to a parent requesting the return of a child abducted on Romanian territory both during the examination of the request and in the event of a refusal to return the child. This right will be granted on request under the terms of the Romanian Family Code, which provides a right of access for the parent who does not usually live with the child. This provision is also interpreted in favour of a parent who asks the Romanian authorities to establish the illicit character of the presence of his child in Romania.

Moreover, under Law No. 272/2004 on the protection and promotion of the rights of the child, the child has a right to maintain personal relations and direct contacts with his parents, the exercise of these rights being established by a judicial authority. This right is also acknowledged for a child whose parents usually live different countries (Articles 16 and 17 of Law No. 272/2004).

• Information is awaited on how the new law is applied by the national authorities.

            2) Publication and dissemination: The European Court's judgment has been published in the Official Journal. In addition, the Romanian authorities indicated that the judgment (accompanied by a circular letter underlining the provisions of the Hague Convention) was sent out to civil courts, the appropriate ministries and the social services.

37284/02          Lafargue, judgment of 13/07/2006, final on 13/10/2006[108]

The case concerns a violation of the applicant's right to respect for his family life due to the failure by the Romanian authorities in their obligation to take adequate and sufficient efforts to ensure respect for the applicant's right of access to and residence with his son, born in 1995, over a period of approximately six years (violation of Article 8).

After the applicant's divorce in 1997, the custody of the child was awarded to his ex-wife. On 16/12/1999 an access and residence order was made (final on 3/05/2000) authorising the applicant to spend one week with his son during the winter holidays and two weeks during his annual holidays. The applicant applied to the court bailiff service of the Bucharest Court of First Instance to obtain enforcement of this decision. However, his attempts remained ineffectual mainly due to the conduct of the mother, who failed to appear or came alone when summoned to attend with the child, or refused her former husband, accompanied by a court bailiff, entry to her flat.

Following a request by the French authorities under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Romanian Ministry of Justice brought an action demanding that a detailed access programme be drawn up for the applicant. In 2005, the Bucharest Court of First Instance drew up a provisional access programme granting the applicant access on alternate weekends, from 4 p.m. on Friday to 5 p.m. on Sunday. Even so, the applicant was only able to meet his child for five months at the beginning of 2005 and after notice of the application had been given to the government. Moreover, the Romanian authorities only imposed a small fine on the ex-wife.

Individual measures: According to the European Court’s judgment the authorities did not pursue the programme of meetings between the applicant and with his child after first five months of 2005, even though psychologists' reports attested to the effectiveness of such meetings.

• Information provided by the Romanian authorities: The applicant spent one week with his son during the winter holidays in 2006.

On 27/03/2007 the Court of First Instance of Bucharest decided that the applicant’s son should undergo two months of psychological treatment.

By a judgment of 22/06/2006 (final in May 2007) the Bucharest Court established a visiting schedule for the applicant. According to this schedule, the applicant may visit his son from Friday (6 p.m.) until Sunday (6 p.m.) during the first and the third week of each month. The stays were also foreseen for the first week of the Easter school holidays, in the period from 15/07 (6 p.m.) to 30/08 (6 p.m.) and during the first week of the Christmas holidays. This decision provides a possibility to send the applicant’s son during those periods to the applicant’s residence in France. By a letter of 4/06/2007 the Ministry of Justice requested a bailiff’s office to undertake all necessary measures to ensure the implementation of this decision.

• Additional information is expected on the effective implementation of those decisions.

General measures:

1) General legislative provisions regulating the exercise of the right of access

• Information is awaited on any appropriate general legislative provisions capable of ensuring the respect of the state's positive obligations under Article 8 with respect to access rights.

Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. enforcement measures, including sanctions, psychological and social assistance, etc.) and their capacity to ensure implementation of the legitimate rights of interested persons and respect for judicial decisions. Furthermore, information would be useful on any measures envisaged by the Romanian authorities in this respect.

2) Specific legislative provisions concerning the implementation of the 1980 Hague Convention with respect of the right of access

a) On 15/09/2004 Romania adopted Law No. 369/2004 on the implementation of the 1980 Convention on the Civil Aspects of International Child Abduction (entered into force on 29/12/2004). Specific provisions of this Law relate to the right of access:

- Enforcement measures

Law 369/2004 provides that the Romanian Central Authority (Ministry of Justice) shall attempt to bring about a friendly resolution concerning the exercise of the right of access. If this attempt fails, and at the explicit request of the person endowed with such right, the Central Authority shall take the necessary measures to ensure the compulsory enforcement of this right. The Law provides an initial, civil fine (approximately 125 to 625 euros) and, if the perpetrator does still not comply, the general rules governing the enforcement of court decisions are applicable. In addition, the court may order a defendant to pay a civil fine of approximately 12 to 25 euros for each day of delay.

- Preparation of the child for the contact with its parent

Law 369/2004 explicitly provides the possibility of psychological therapy for the child for a maximum of three months where access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent (Article 18).

b) On 5/04/2005 the Ministry of Justice, on the basis of Article 24 of Law 369/2004, adopted Order No. 509/C to approve the Regulation on the modalities of exercising the duties of the Ministry of Justice as a Central Authority designated through Law No. 100/1992 on Romania's accession to the 1980 Hague Convention.

• The Romanian authorities are invited to provide relevant examples of the application of Law 369/2004 and Order No. 509/C showing the positive changes in practice of domestic authorities since the relevant facts in this case.

3) Publication and dissemination of the European Court's judgment to relevant authorities:

• Information is awaited in this respect.

- 1 case against Romania and 1 case against Hungary and Romania

71099/01          Monory, judgment of 05/04/2005, final on 05/07/2005

7198/04            Iosub Caras, judgment of 27/07/2006, final on 11/12/2006[109]

These cases concern questions related to the application by the Romanian authorities of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (violations of Article 8).

In the Monory case, the European Court condemned the way in which the Romanian authorities dealt with the applicant's request for the return to Hungary of his daughter (nearly 4 years old), who had been kept in Romania without the applicant's consent by his wife. The request for the return of the child lodged by the applicant in January 1999 under the 1980 Hague Convention was eventually rejected by the Oradea Court of Appeal in February 2000. The Romanian courts found in particular that the retention of the child by her mother was not unlawful since the applicant did not have exclusive custody rights. Furthermore, they noted that the child had already been integrated into her new environment. The European Court found that the Romanian authorities had failed to make adequate and effective efforts to assist the applicant in his attempt to secure the child's return in that

- they wrongly interpreted the Hague Convention as not being applicable to the present case, in spite of its obvious meaning which transpires from its very text, its Explanatory Report and from the recognised common practice of other European states;

- they failed to respond to the urgency of the situation, letting more than twelve months pass before adopting the final decision rejecting the applicant's request while indicating that the child had adapted to her new environment;

- they failed to take all provisional measures, including extra-judicial measures, which might have helped prevent further harm to the child or prejudice to the interested parties in accordance with Article 7 of the Hague Convention.

The Monory case also concerns the excessive length of the divorce and child custody proceedings before the Hungarian courts (violation of Article 6§1). The proceedings were brought by the applicant on 28/04/1999 and ended on 29/10/2003, when the Vác District Court declared the couple's divorce and granted the mother custody of the child.

In the Iosub Caras case, in November 2001 the Romanian Ministry of Justice received a request under the Hague Convention for the return of the applicant's child. The applicant claimed that his wife was wrongfully retaining their daughter in Romania, without his consent. In January 2002, the Ministry of Justice, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the applicant for the return of the child. The request was rejected in a final decision of the Bucharest Court of Appeal in June 2003 on the ground that, since the introduction of the proceedings under the Hague Convention, another Romanian court, in a final decision of 18/09/2002, had ruled the divorce of the parents and had granted sole custody of the child to the mother.

The European Court concluded that the Romanian authorities failed to fulfil their positive obligations under Article 8 on the following grounds:

- that, by failing to inform the divorce courts of the existence of the Hague proceedings, the authorities (in particular the Ministry of Justice) deprived the Hague Convention of its very purpose, i.e. to prevent a decision on the merits of the rights to custody being taken in the state of refuge;

- that the time taken by the courts to decide finally in this case (more than 18 months from the date of lodging the request for the return of the child to the date of final decision) failed to meet the urgency of the situation.

The European Court also expressed its concern that the domestic courts, when ruling on the Hague proceedings, based their judgment, among other arguments, on the fact that the custody rights had been decided on the merits, while the Hague proceedings were still pending.

Individual Measures:

            1) Monory case: As the child is currently living in Romania, the Romanian authorities were asked whether the applicant currently enjoyed visitation rights. By letter of 30/11/2005, the Romanian authorities indicated that the applicant took no step under Romanian law to exercise his visiting rights.

2) Iosub Caras: None: the European Court noted that the national courts' refusal under the Hague Convention to order the return of the child, being also based on arguments which constitute an interpretation of the facts and evidence adduced in the case, did not appear to be arbitrary. The applicant was awarded just satisfaction in respect of non-pecuniary damage.

General Measures:

            1) Violations of Article 8:

- Proper application of the 1980 Hague Convention

Various measures related to the proper application of the 1980 Hague Convention are being examined in the context of the Ignaccolo-Zenide case (Section 4.2). In the context of the present cases it should be underlined that according to Law No. 369/2004 on the implementation of the 1980 Hague Convention a special court (the Bucharest Court for children and family issues) has been created, which is competent to deal with requests for the return of children under the 1980 Hague Convention. Further, study of the provisions and the application of Law No. 369/2004 is a part of the initial training of legal trainees in family law and “European Convention of Human Rights”. The application of Law No. 396/2004 is also a priority in continuous training and is an element of the subjects of the seminars organised by the Institute in the series of training on “Justice for minors” and “The European Convention - civil aspects”.

• Information is awaited on other measures taken or envisaged in order to prevent new, similar violations resulting, in particular, from failure to inform relevant domestic courts of the existence of the Hague proceedings.

- Need to respond to the urgency of the situation

• Statistical information, including relevant examples, is awaited on the length of the proceedings related to the application of the 1980 Hague Convention.

- Need to take appropriate provisional measures

Various information, in particular related to the provisional access right, has been provided in the context of the Ignaccolo-Zenide case (Section 4.2).

            2) Publication and dissemination: The judgment in the Monory case has been translated and published in the Official Journal of Romania and on the Internet site of Supreme Court of Cassation and Justice (<http://www.scj.ro/decizii_strasbourg.asp>). In addition, it was transmitted to the Bucharest court which is provisionally assuring the functions of the special court.

• The publication and dissemination of the European Court's judgment in the Iosub Caras case to relevant domestic courts and institutions are also expected.

            3) Violation of Article 6§1 in the Monory case, this case presents similarities with the Tímár group (judgment of 25/02/03, Section 4.2).

• The confirmation of the publication and dissemination of the judgment by Hungary is awaited particularly in view of the European Court's finding that special diligence is required in child custody disputes.

41124/02          Filip, judgment of 14/12/2006, final on 14/03/2007[110]

This case concerns the compulsory psychiatric hospitalisation of the applicant between November 2002 and January 2003, at the behest of a public prosecutor, with a view to determining his capacity of judgment. The European Court considered that it had not been adequately established that the applicant was deranged, no prior medical opinion having been sought nor any precise indications given as to the elements which led the prosecutor to apply for the applicant's detention. It also noted that the applicant's committal had not been carried out according to law, in that the competent medical commission ought to have been implicated at the moment the committal was enforced. In point of fact, the commission which was seised a month later did not concur with the need for committal (violation of Article 5§1).

The case also concerns the failure to ensure a prompt determination of the lawfulness of the applicant's psychiatric detention (violation of Article 5§4): the relevant domestic court instead of determining the applicant's complaint, submitted in December 2002 under Article 434 of the Code of Criminal Procedure, it referred it to the prosecutor. The prosecutor ordered the withdrawal of the detention order, without examining the complaint on the merits, in January 2003. Thus the authorities took 8 weeks to withdraw the detention order.

Finally the case concerns the inadequacy of investigations carried out into the applicant's allegations of ill-treatment (violation of Article 3). The court noted that the prosecution failed to pronounce upon these complaints and the Romanian authorities provided no information indicating that a criminal investigation had been opened in this respect.

Individual measures: After the lifting of the hospitalisation order and release of the applicant the Romanian courts ordered psychiatric treatment recommended by the medical commission. The applicant did not appeal against this order.

• Information is expected as to whether it is possible to open an investigation concerning the applicant's allegations of ill-treatment during his detention in the psychiatric hospital.

General measures:

• Information is expected on measures taken or envisaged to avoid similar violations. In particular, to assess the necessity and scope of specific measures, the authorities are invited to clarify:

- the legal basis for opening criminal investigations and the reasons for disregarding the applicant's complaints about his alleged ill-treatment in present case;

- the current law governing detention in psychiatric hospitals.

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

The Secretariat will invite the Romanian authorities to present an action plan for the examination of this judgment.

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. 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.

• The following legislative acts related to child protection have been adopted:

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 in difficulty;

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.

• Clarification is expected concerning the provisions of Law No. 272/2004 and the three decrees mentioned above.

• Further information is also expected on the legislation governing the placement of minors in youth shelters as well as summary of the relevant legislative provisions currently in force and the necessity of any improvements in this respect.

41138/98+        Moldovan and others, judgment No.1 of 05/07/2005 - Friendly settlement

41138/98+        Moldovan and others, judgment No. 2, judgment of 12/07/2005, final on 30/11/2005[111]

57884/00          Kalanyos and others, judgment of 26/04/2007, final on 26/07/2007 - Striking-out[112]

57885/00          Gergely, judgment of 26/04/2007, final on 26/07/2007 - Striking-out[113]

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. 2 (judgment on merits): The European Court, under Article 41, awarded the applicants just satisfaction in respect of pecuniary and non-pecuniary damages.

According to the last information submitted (06/02/2006), 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. Moreover, the government is currently assessing the possibility of opening an investigation against the government agents involved in the events of September 1993.

• Information is expected in this respect.

            2) 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.

            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 settment, 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 as a basis for the assessment of general measures taken or envisaged for the execution of the judgment on merits (Moldovan No. 2).

• Information on the measures adopted:

(a) The Romanian authorities have informed the Secretariat that the National Agency for the Roma (http://www.anr.gov.ro/), an organ subordinated to the Romanian government, has drawn up a “General Plan of Action” on the implementation of the Romanian authorities' undertakings in order to fulfil the commitments foreseen in the friendly settlement. According to this plan of action, a team made up of governmental experts and experts belonging to civil society visited Hǎdǎreni on several occasions to present the project to its inhabitants, to identify problems and general attitudes in the local community and to choose the people who could help implement the project locally. The conclusions of these visits have been used to draft a “Community Development Programme”, which addresses issues such as education (including health education and legal education), the fight against discrimination, the prevention of family or community conflicts, professional training, employment and the development of infrastructure, culture, etc. A governmental decision approving the Hadareni Community Development Plan 2006-2008 was adopted and published in the Official Gazette on 4/05/2006.

(b) By Law No. 103/2006, Romania has ratified Protocol No. 12 to the Convention (published in the Official Gazette on 2/05/2006). The Romanian authorities have also indicated that they envisage amending the legislation concerning the fight against discrimination, in order to create a direct and effective possibility to obtain redress for discriminatory acts.

Moreover, the National Agency for the Roma signed an agreement with UNDP (United Nations Development Programme). The parties committed themselves to establish six assistance social centres for Roma to facilitate their socio-economic integration. One of the centres will have its seat at Targu Mures. Further, according to the Memorandum of Understanding signed by the Romanian government and UNDP in September 2005, 11 projects will be financed within the “Partnership for supporting the Roma 2005” Program.

• Information awaited: on the progress achieved in the realisation of the plan of action on the implementation of undertakings foreseen in the friendly settlement and other possible measures.

            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 (1007th meeting, October 2007, Section 4.2).

            3) Publication and dissemination: 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.

60868/00          Vasilescu Grigore, judgment of 08/06/2006, final on 08/09/2006

The case concerns the unfairness of certain proceedings brought by the applicant to obtain the restitution of his property, resulting from the domestic courts' failure to take account of certain key arguments he submitted (violation of Art. 6§1). By decision of 26/06/1998, the Buftea Court of First Instance acknowledged the applicant's claims for restitution of property seized after 1945. This decision was subsequently quashed by the Bucharest Departmental Court (08/02/1999) and finally by the Bucharest Court of Appeal (13/12/1999). Neither of these courts took account of the applicant's argument that the decrees Nos 218/1960 and 712/1966, which were the basis of the seizure of the applicant's property, had been found unconstitutional by the Supreme Court of Justice in 1993.

Individual measures:

• Developments: In other proceedings, initiated under Law No. 10/2001, the applicant recovered part of his property (a plot of land of 5,425 m² out of 15,000 m² and the buildings on it). Administrative proceedings concerning the restitution of the remaining land were pending when the European Court rendered its judgment.

• Information is expected on the present situation of the applicant.

General measures: As it does not appear that the violation in this case has a structural character, publication and dissemination of the European Court's judgment to the relevant courts and authorities would seem to be sufficient general measures to prevent new, similar violations.

• Information is expected in this respect.

28871/95          Constantinescu, judgment of 27/06/00[114]

77364/01          Ilişescu and Chiforec, judgment of 01/12/2005, final on 01/03/2006[115]

53897/00          Dănilă, judgment of 08/03/2007, final on 08/06/2007[116]

41250/02          Mircea, judgment of 29/03/2007, final on 29/06/2007[117]

1434/02+          Lupaş and others, judgment of 14/12/2006, final on 14/03/2007[118]

The case concerns the violation of the applicants' right of access to a court due to the application of a rule requiring unanimity amongst joint owners in order to bring an action for recovery of a property held in common which had been nationalised under the former regime (violation of Article 6§1).

The 19 applicants are the descendants of certain joint owners of a 50-hectare plot on the Black Sea coast, which was expropriated in 1950 for the construction of a military base. In 1998 and 1999 three actions for recovery of the property were brought by some of the applicants, without the agreement of the heirs of two of the former co-owners. Between 2001 and 2002 all three actions were dismissed at final instance by the Supreme Court of Cassation pursuant to the unanimity rule, on account of the refusal of one of the heirs and the difficulty of identifying all the heirs of one of the former owners.

The European Court noted that the unanimity rule had satisfied the criteria of accessibility and predictability and it had pursued the legitimate aim of protecting the rights of all the heirs of the former joint owners of the property. On the other hand, given the circumstances of the case, the strict application of the rule erects an insurmountable obstacle to any future attempt to establish the applicants' title, and imposes a disproportionate burden on them by denying them any clear and concrete possibility of having their request determined by a court.

Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening of civil proceedings in cases in which the European Court found a violation of the European Convention. As the Convention and the case-law of the Court have direct effect under Romanian Law, courts will without doubt adapt the jurisprudence criticised in this case.

In addition, all applicants were awarded just satisfaction for non-pecuniary damage.

• Assessment: Consequently, it seems that no other individual measure is necessary.

General measures: Although the unanimity rule applied in the present case had no base in domestic legislation, it was adhered to by most of the domestic courts. In its judgment, the European Court noted with interest a draft law amending the civil code, which eliminates the unanimity rule.

• Information is expected on measures taken or envisaged to avoid future violations, in particular, the draft law setting aside the unanimity rule in this context and the possible time frame for its adoption.

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

10337/04          Lupsa, judgment of 08/06/2006, final on 08/09/2006[119]

33970/05          Kaya, judgment of 12/10/2006, final on 12/01/2007[120]

These cases concern a violation of the applicants' right to respect for their private and family life on account of their expulsion for security reasons in August 2003 and April 2005 (violations of Article 8).

The European Court found that these measures were not provided by a law responding to the requirements of the Convention. In this respect it noted that the applicants, Serbian and Turkish nationals respectively, were declared to be undesirable aliens, expelled and denied access to Romanian territory. These measures were ordered by the public prosecutor's office on the ground that the Romanian Intelligence Service had received sufficient and serious intelligence that they were engaged in activities capable of endangering national security. No proceedings were brought against the applicants for participating in the commission of any offence in Romania or any other country and they were not provided with any details as to the allegations against them. Furthermore, in the Lupsa case, in breach of domestic law, the applicant was not served with the order declaring his presence to be undesirable until after he had been expelled. Finally, the Bucharest Court of Appeal confined itself to a purely formal examination of the public prosecutor's orders.

These cases also concern the failure to respect procedural guarantees in the procedure whereby the applicants were expelled (violations of Article 1 of Protocol 7). The European Court recalled that Emergency Ordinance no. 194/2002, the legal basis for the expulsion, did not afford them the minimum guarantees against the arbitrary action by the authorities. Thus, although the applicants' expulsions were carried out pursuant to a lawfully taken decision, the relevant law did not comply with the requirements of the Convention. In addition, the authorities had failed to comply with the requirements of Article 1 a) and b) of Protocol 7.

Individual measures: The Romanian authorities have indicated that the applicants may request the re-examination of the decisions in question under Article 322 (9) of the Code of Civil Procedure. The European Court awarded them just satisfaction in respect of non-pecuniary damage.

• Assessment: no further individual measure seems necessary.

General measures:

• Information provided by the Romanian authorities (letter of 08/05/2007): Emergency Ordinance No. 194/2002 was amended on 26/03/2007. According to the new wording of Article 83, declarations of undesirability of aliens shall henceforth be made by the Bucharest Court of Appeal, seised by a public prosecutor at the request of the authorities having jurisdiction in the field of public order and national security. The data and information at the basis of such declarations shall be placed at the disposal of the judicial authority in accordance with the conditions provided by the law regulating national security activities and the protection of classified information. The public prosecutor's submission is examined by a court chamber sitting in private, the parties being notified. The judicial authority shall inform the alien of the facts at the basis of the submission. A reasoned judgment should be given within 10 days of the prosecutor's submission. It is final and shall be communicated to the alien concerned and, if the alien is declared undesirable, to the Aliens Authority for enforcement.

• While the Secretariat is currently examining this information, clarification is expected as to whether the amendments also guarantee adversarial proceedings in which the alien concerned may present his or her point of view and refute the arguments of the authorities (§38 of the Lupsa judgment). In this context the Romanian authorities should note that, according to the European Court's case-law, persons subject to measures based on considerations of national security must not be deprived of all guarantees against arbitrariness.

Both judgments, after being translated, have been published in the Official Journal and on the internet site of the Supreme Court of Cassation and Justice.

62276/00          Nichifor No. 1, judgment of 13/07/2006, final on 13/10/2006[121] [122]

- Cases concerning the failure to restore or compensate for nationalised property sold by the state to third parties[123]

57001/00          Străin and others, judgment of 21/07/2005, final on 30/11/2005[124]

70639/01          Barbu, judgment of 12/10/2006, final on 12/01/2007[125]

75261/01          Barcanescu, judgment of 12/10/2006, final on 12/01/2007[126]

70890/01          Danulescu, judgment of 12/10/2006, final on 12/01/2007[127]

2252/02            Davidescu, judgment of 16/11/2006, final on 16/02/2007[128]

9292/05            Enciu and Lega, judgment of 08/02/2007, final on 08/05/2007[129]

24959/02          Erbiceanu, judgment of 26/04/2007, final on 26/07/2007[130]

41857/02          Florescu, judgment of 08/03/2007, final on 08/06/2007[131]

16891/02          Funke, judgment of 26/04/2007, final on 26/07/2007[132]

35951/02          Gabriel, judgment of 08/03/2007, final on 08/06/2007[133]

2608/02            Ionescu Ruxanda, judgment of 12/10/2006, final on 12/01/2007[134]

12728/03          Jujescu, judgment of 29/06/2006, final on 29/09/2006[135]

9862/04            Negoita, judgment of 25/01/2007, final on 25/04/2007[136]

63252/00          Păduraru, judgment of 01/12/2005, final on 01/03/2006 and of 15/03/2006, final on 24/09/2007, rectified on 31/05/2007

4738/04            Pais, judgment of 21/12/2006, final on 21/03/2007[137]

1597/02            Patrichi, judgment of 12/10/2006, final on 12/01/2007[138]

13075/03          Penescu, judgment of 05/10/2006, final on 05/01/2007[139]

73969/01          Petrescu, judgment of 15/03/2007, final on 15/06/2007[140]

21397/02          Popescu Dimitrie Dan, judgment of 14/12/2006, final on 14/03/2007[141]

4596/03            Porteanu, judgment of 16/02/2006, final on 16/05/2006

38467/03          Rabinovici, judgment of 27/07/2006, final on 27/10/2006[142]

13309/03          Radu, judgment of 20/07/2006, final on 20/10/2006[143]

29683/02          Rotaru and Cristian, judgment of 30/11/2006, final on 28/02/2007[144]

58612/00          Sebastian Taub, judgment of 12/10/2006, final on 12/01/2007[145]

26449/04          Stroia, judgment of 08/02/2007, final on 08/05/2007[146]

25603/02          Suciu Arama, judgment of 09/11/2006, final on 09/02/2007[147]

2122/04            Tarbuc, judgment of 14/12/2006, final on 14/03/2007[148]

5691/03            Toganel and Gradinaru, judgment of 29/06/2006, final on 29/09/2006[149]

77048/01          Tovaru, judgment of 12/10/2006, final on 12/01/2007[150]

23354/02          Ungureanu, judgment of 09/11/2006, final on 09/02/2007[151]

23576/04          Vidrascu, judgment of 14/12/2006, final on 14/03/2007[152]

6350/02            Vlăduţ, judgment of 30/11/2006, final on 28/02/2007[153]

35303/03          Weigel, judgment of 08/03/2007, final on 08/06/2007

Cases concerning the failure or substantial delay

by the administration in enforcing final judicial decisions:

- Cases concerning the failure to enforce final judicial decisions ordering the restitution of property nationalised or lost during the communist period

48102/99          Popescu Sabin, judgment of 02/03/04, final on 02/06/04, rectified on 05/07/2004

77195/01          Abăluţă, judgment of 15/06/2006, final on 15/09/2006[154]

7114/02            Acatrinei, judgment of 26/10/2006, final on 26/03/2007[155]

57810/00          Costin, judgment of 26/05/2005, final on 26/08/2005

54400/00          Croitoriu, judgment of 09/11/2004, final on 30/03/2005

2239/02            Dobre, judgment of 15/03/2007, final on 15/06/2007[156]

78047/01          Dragne and others, judgment of 07/04/2005, final on 07/07/2005 and of 16/11/2006, final on 16/02/2007[157]

18037/02          Gavrileanu, judgment of 22/02/2007, final on 09/07/2007[158]

58318/00          Georgi, judgment of 24/05/2006, final on 13/09/2006[159]

18013/03          Ioachimescu and Ion, judgment of 12/10/2006, final on 12/01/2007[160]

38113/02          Matache and others, judgment of 19/10/2006, final on 19/01/2007[161]

2726/02            Nerumberg, judgment of 01/02/2007, final on 09/07/2007[162]

8402/03            Pietro and others, judgment of 20/07/2006, final on 20/10/2006[163]

7234/03            Pop, judgment of 21/12/2006, final on 21/03/2007[164]

2911/02            Popescu Mihai-Iulian, judgment of 29/09/2005, final on 29/12/2005

67289/01          Sandor, judgment of 24/03/2005, final on 24/06/2005

746/02              Tacea, judgment of 29/09/2005, final on 29/12/2005[165]

                       CM/Inf/DH(2007)33

All these cases concern delays in enforcing or failure to enforce by the administrative authorities of judicial decisions, delivered between 1992 and 1999, ordering the restitution of property lost during the communist period (Popescu Sabin, Costin, Croitoriu, Dobre, Dragne, Gavrileanu, Nerumberg, Popescu Mihai-Iulian, Tacea, Abǎluţǎ, Georgi, Acatrinei, Ioachimescu and Ion, Pop) and/or the payment of compensation in the absence of such restitution (Dragne, Sandor, Pietro and Others, Matache and others).

The European Court found violations of Article 6§1 in all the cases, except that of Pop, and violations of Article 1 of Protocol No. 1 in all the cases, except that of Costin.

Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damage (Popescu Sabin, Dragne), non-pecuniary damage (Costin, Abǎluţǎ, Georgi, Pietro, Acatrinei, Ioachimescu and Ion, Pop) or both pecuniary and non-pecuniary damage (Croitoriu, Popescu Mihai-Iulian, Sandor, Tacea).

In some cases (Abǎluţǎ, Dobre, Ioachimescu and Ion, Nerumberg, Pop) the European Court ordered the enforcement of the domestic decision concerning the restitution of property or payment of just satisfaction for pecuniary damage.

The domestic decisions have been enforced in the cases of Popescu Sabin, Costin, Dragne, Sandor, Tacea, Georgi, Pietro and others, Acatrinei. In the Abǎluţǎ case the authorities decided to pay the amount in question.

In the Matache case the European Court considered that the question of just satisfaction was not ready for decision and reserved it accordingly. In the Gavrileanu case the European Court ordered the enforcement of the domestic decision at issue and decided to reserve the question of just satisfaction with regard to compensation for the loss of earnings arising from the failure to execute this judgment and in respect of non-pecuniary damage.

• Information is awaited on the current situation of the applicants in the Croitoriu, Dobre, Gavrileanu, Nerumberg, Mihai-Iulian Popescu, Ioachimescu and Ion, Pop cases.

General measures:

            1) Legislative reform: On 19/07/2005 Parliament adopted Law No. 247 on the reform of property and justice. This law modified Law No. 18/1991 and the subsequent Acts concerning the restitution of land. According to the government, it contributes to improving and accelerating proceedings. Moreover, it imposes sanctions on local authority representatives who do not respect its provisions.

According to additional information submitted by the Romanian authorities by letter of 9/09/2006, the statistical reports of March and August 2006 and a preliminary analysis concerning the application of Law No. 247/2005 show a significant increase in cases resolved by local commissions, either by admitting or dismissing requests.

Moreover, departmental commissions accepted an increasing number of proposals made by the local commissions. It should also be underlined that there is a preference for the restoration of plots of land (increase of area approved by departmental commissions). Finally, the reform also provides the verification of the validity of property titles.

In addition, in order to ensure the respect of legal provisions by the administration, a “Control Body” was created within the “Department for co-ordination and control of the application of the legislation in the field of the restitution of the land property”; in first eight months of 2006, this body carried out more than 300 controls and sanctioned approximately 6% of all acting mayors in Romania. The value of the imposed fines amounted to 1 330 000 RON (380 000 euros).

On 21 and 22 June 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. In this context the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Additional clarifications are expected in the context of the application of the laws mentioned above to the cases in which the local public authorities refuse the execution of the final judicial decisions ordering the restitution of property (see the conclusions of the above mentioned Round table CM/Inf/DH(2007)33). Copies of the relevant provisions would be useful.

            2) Publication and dissemination of the judgments of the European Court: The judgment in the case of Popescu Sabin was translated and published in the Official Journal in August 2005. In addition, a summary was published in the first issue of Themis, a journal of the National Institute of Magistrate, and later distributed free to all courts. Finally, the administrative authorities have received a copy of the judgment.

The Costin judgment was translated and is to be published in the Official Journal (letter from the Romanian authorities of 27/03/2006).

In addition, the Ministry of Public Finance addressed a circular letter to all Local Finance Administrations presenting the Sandor case to them in order to avoid similar situations. The text of the judgment was translated and is to be published in the Official Journal.

Finally, by a circular letter of 18/11/2005 addressed to the prefects of all departments, the Romanian authorities explained the principles of the European Court's case-law regarding the execution of judicial decision concerning land. They also underlined the need to execute judicial decisions ordering the setting of the ownership and/or the issue of the title deed and the importance of a transparent dialogue with the beneficiaries of the judicial decisions concerning land.

Prefects were invited, in their capacity as presidents of the departmental commissions for the application of land law, to transmit this circular letter to local commissions.

- Case concerning the failure to enforce final judicial decisions ordering the registration of the applicants’ ownership in the land registry

5050/02            Pântea Elisabeta, judgment of 15/06/2006, final on 15/09/2006[166]

                       CM/Inf/DH(2007)33

The case concerns a violation of the applicant's right to a court, due to the failure to enforce a final court decision of 02/04/2001 ordering the municipality of Grivita to record her ownership of a certain property on the agricultural land register and to remove the title of a third person to the same property. The municipal authorities refused to enforce the second limb of this decision (violation of Article 6§1).

Individual measures: The European Court ordered the full execution of the domestic court's decision of 02/04/2001 and awarded the just satisfaction for non-pecuniary damage.

• Information is awaited on measures taken with the view to executing the judgment in question, in particular with respect to the removal of the title of a third party to the same property.

General measures: The problem of the administration's failure or substantial delay in abiding by final domestic judgments has already been dealt with in the context of the restitution of property by domestic administration (Popescu Sabin, Section 4.2). This case concerns another aspect of the activities of the administration.

On 21 and 22 June 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. In this context the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Information is awaited on the authorities’ assessment whether the violation found by the European Court in this case has a structural character and on specific measures taken or envisaged to ensure the proper execution of judicial decisions in similar situations, bearing in mind that any practice consisting in refusing or delaying the execution of decisions should be accordingly sanctioned. In the execution of this judgment, the Romanian authorities may consider the experiences of other countries confronted with similar problem of failure or late execution of judgments (see the conclusions of the above mentioned Round table CM/Inf/DH(2007)33 ).

The judgment of the European Court was translated and published in the Official Gazette and on the Internet site of the Supreme Court of Justice and Cassation (http://www.scj.ro/decizii_strasbourg.asp).

• Confirmation of its dissemination to the relevant authorities and courts is expected.

                       - 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[167]

22626/02          Schrepler, judgment of 15/03/2007, final on 15/06/2007[168]

                       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).

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 Schrepler case concerns the non-enforcement of a domestic court decision of 1998 ordering payment of a certain sum to the applicant.

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) Schrepler: The decision of 1998 had still not been executed when the European Court rendered its judgment.

• Information is expected on the current situation of the applicant.

General measures:

• Information provided by the Romanian authorities in the context of Ruianu case (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 other criminal sanctions.

Although this information is relevant, the Secretariat notes that the legal means invoked by the government could not avoid the violation in the present case. Therefore, given the domestic authorities' responsibility for the enforcement stage (see in particular paragraphs 59, 72 and 73 of the judgment), additional information was requested concerning the means available in domestic law to ensure the execution of domestic courts' decisions in similar situations.

By letter of 27/03/2006, the Romanian authorities indicated that a draft Law concerning the enforcement of civil court decisions, modifying the Code of Civil Procedure had been approved by the government and was currently before Parliament.

On 21 and 22 June 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. In this context the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Information is awaited on the authorities' assessment whether the violations found by the European Court in these cases have a structural character and on specific measures taken or envisaged to ensure the proper execution of judicial decisions in similar situations (in this context see the conclusions of the Round Table mentioned above CM/Inf/DH(2007)33). Information is also expected on the relevant provisions of this the draft mentioned above and progress in its adoption.

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.

- Cases concerning late enforcement of final judicial decisions ordering payment of certain sums of money by a public institution

73970/01          Sacaleanu, judgment of 06/09/2005, final on 06/12/2005[169]

1486/02            Orha, judgment of 12/10/2006, final on 12/01/2007

                       CM/Inf/DH(2007)33

These cases concern late enforcement of final judicial decisions ordering payment of certain sums of money by public institutions (violations of Article 6§1).

In the Sacaleanu case the applicant's employer (the State Inspectorate for People with Disabilities) was ordered to pay her wages and penalties until her reinstatement in her former post (which eventually occurred in 2000), as well as costs and expenses. These sums were paid to the applicant with significant delays and in several instalments, almost twenty months having sometimes elapsed between them. The applicant only received the total sum on 22/02/2002. The European Court noted that the employer, as a state-funded public institution, could only pay its debts with specific sums assigned for the purpose by the Ministry of Finance. The European Court noted that delays in paying sums due to the applicant were sometimes caused by the fact that the Ministry had not made over the necessary sums in time. It therefore concluded that the state, through its own acts, had made it impossible for the applicant promptly to recover the sums which were due to her by virtue of final court decisions.

In the Orha case, the municipal authorities were ordered to pay to the applicants certain sums for expropriation of their property. The European Court noted that the decision given in October 1999 was neither executed nor annulled or modified following the application of recourses provided by law. Further, it also noted that the Law No. 33/1994 on expropriation did not provide any procedure to bring a judicial action in order to fix the modalities and time-limits for payments.

In the Orha case the European Court also considered that, by refusing to enforce the judgment the authorities had deprived the applicants of the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).

Individual measures:

            1) Sacaleanu: None: the sums at issue were paid to the applicant on 22/02/2002. The non-pecuniary damage suffered by the applicant has been compensated by the European Court under Article 41 of the Convention.

            2) Orha: The European Court found that the question of just satisfaction was not ready for decision and therefore reserved it.

General measures:

On 21 and 22 June 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. In this context the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Information is awaited on the measures envisaged or already adopted by the Romanian authorities to establish a system allowing the prompt payment by the public institutions of the debts owed by them by virtue of final court decisions (see the conclusions of the above mentioned Round table CM/Inf/DH(2007)33).

In the context of the Orha case the European Court also raised the question of certain shortcomings of Law No. 33/1994 on expropriation (§25 of the judgment).

• Information is expected on the authorities' assessment whether the violation found by the European Court in this case has a structural character and on measures taken or envisaged to prevent similar violations.

• Are also expected: publication and dissemination of the European Court’s judgments to relevant domestic courts and institutions.

- Cases concerning late enforcement of final judicial decisions ordering the applicants’ reinstatement in their posts within public bodies and payment of salary arrears for the period they were unemployed

23878/02          Strungariu, judgment of 29/09/2005, final on 29/12/2005

5060/02            Mihaescu, judgment of 02/11/2006, final on 26/03/2007[170]

                       CM/Inf/DH(2007)33

These cases concern the late enforcement of court decisions ordering the applicants' reinstatement in their posts in state agencies and the payment of salary arrears for the period during which they were unemployed (violations of article 6§1).

In the Strungariu case the decision (October 2001) ordering the applicant's reinstatement in his post in the Agency for Privatisations and Administration of State Shareholdings and the payment of the salary arrears was executed in January 2003

In the Mihaescu case, the decisions for his reinstatement in his post in Iaşi University of Medicine and Pharmacology (March 2000) and the payment of the salary arrears (June 2003) were executed in 2006.

Individual measures: None. The European Court found that the applicants had been reinstated in their posts according to the requirements of the court decisions at issue and noted that the salary arrears had been paid to them.

In addition, the European Court also awarded them just satisfaction in respect of non-pecuniary damage.

General measures: In the Strungariu case the judgment of the European Court was to be translated and published in the Official Journal. The government also expressed the intention to address the National Agency for Public Servants in order to identify other relevant institutions and to inform them on the context and the implications of this judgment.

On 21 and 22 June 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. In this context, the representatives of the Romanian authorities exchanged their experiences on the measures taken or under way to prevent similar violations and examined possible further reforms to be adopted.

• Information is awaited on the authorities’ assessment whether the violations found by the European Court in these cases have a structural character and on specific measures taken or envisaged to ensure the proper execution of judicial decisions in similar situations, bearing in mind that any practice consisting in refusing or delaying the execution of decisions should be accordingly sanctioned. In the execution of these judgments, the Romanian authorities may consider the experiences of other countries confronted with similar problem of failure or late execution of judgments (see the conclusions of the above mentioned Round table CM/Inf/DH(2007)33 ).

Moreover, the dissemination measures could usefully be accompanied by a reminder of the relevant principles established in the case-law of the European Court.

- 63 cases against the Russian Federation

14139/03          Bolat, judgment of 05/10/2006, final on 05/01/2007[171]

The case concerns two violations of the Convention relating to unlawful actions by executive authorities.

The first violation relates to the freedom of movement of the applicant, a Turkish national. At the material time he was living in the Russian Federation with a valid residence permit. The Police fined him in December 2002, in violation of domestic law, for not having respected the residence regulations in the Republic of Kabardino-Balkaria (he was accused of having resided with a friend and not at the address where he was registered and of failing to report this change to the police within the 3 days required) (violation of Article 2 of Protocol No. 4).

The second violation relates to the applicant's subsequent expulsion on 7/08/2003 by the police and the Federal Security Service. The expulsion took place pursuant to a decision taken by the Ministry of the Interior in May of that year, revoking the applicant's residence permit because of the fine mentioned above, and ordering the applicant to leave the territory. The European Court found that at the time of expulsion, the applicant was still lawfully residing in Russia, the expulsion having been stayed by a court order issued in the context of the proceedings challenging the lawfulness of the fine. No judicial decision ordering the applicant's expulsion was delivered. The applicant was thus expelled in violation of Russian law, which provides that any expulsion of a foreign national must be ordered by a valid judicial decision (violation of Article 1 of Protocol No. 7).

Individual measures: The European Court noted that the authorities had acknowledged the violation of the applicant's right to freedom of movement both under the Russian Law and the Convention but had failed to remedy the negative consequences stemming from this violation due to the ban subsequently imposed by the Federal Security Service, pursuant to the Law on the Procedure for Entering and Leaving the Russian Federation, on the applicant's re-entry in Russia. The Court found it probable that this ban was also based on the unlawful fine at issue.

At the 1007th meeting (October 2007), the Russian authorities stated, in response to the issue raised by the Secretariat, that the applicant is still forbidden to enter the Russian Federation due to the ban imposed by the Federal Security Service. This ban is still in force notwithstanding the decision of the Nalchik Town Court of 28/10/2003 which ordered the Passport and Visas Department to extend the applicant’s residence permit for five years, starting from 4/08/2003. It would appear that this judgment is also still in force.

In this connection it is noted that in its judgment the European Court indicated that the Federal Security Service was examining the issue of annulment of the applicant's residence permit in accordance with section 9 (1) of the Law on Legal Status of Foreign Nationals in the Russian Federation (§40 of the judgment).

• Information is awaited on the outcome of any such proceedings, together with copies of the relevant decisions.

General measures: At the 1007th meeting (October 2007), the Russian authorities provided extensive information in response to questions raised by the Secretariat. This information is currently being assessed by the Secretariat.

            1) Sanctions for not reporting changes of residence to the police within 3 days

• Information is awaited on measures envisaged to clarify the procedures applicable in case of alleged contraventions of the residence regulations. In this context, information on training and other awareness-raising measures would be welcome. Information on the responsibility of police or other officers violating existing procedures would also be useful. Even if the judgment does not directly refer to the requirement of 3 days' notice, it nevertheless seems to have been an important element of the violation committed and information would be helpful on any ongoing reflection to extend it.

            2) Entry bans imposed by the Russian Federal Security Service: It may be noted that the ban on the applicant's entry to the Russian Federation imposed in December 2002 by the Federal Security Service was disclosed neither to the domestic authorities and courts involved in the granting of the new residence permit nor to the applicant.

• Information is therefore requested on the procedure applicable when rendering decisions revoking residence permits or banning entry under the new powers granted to authorities in charge, such as the Ministry of Foreign Affairs or the Federal Security Service in the Law on the Procedure for Entering and Leaving the Russian Federation so as to ensure that other authorities and courts are adequately informed

Information is also requested on the procedure applicable under these new powers vis-à-vis the individual concerned, to ensure that his right to an effective remedy is safeguarded, in particular the existence of judicial and/or administrative remedies to claim revocation of allegedly unjustified decisions.

In addition, information would be helpful on measures taken or envisaged to ensure that the power to impose such bans is exercised in line with the Russian Federation's obligations under the Convention. In particular, it would be helpful to envisage measures in respect of the members of the Russian Federal Security Service and other authorities concerned to ensure full respect for domestic constitutional principles and binding court orders. Such measures could include changes in the internal regulations of these authorities and the training of the personnel concerning the requirements at issue.

            3) Respect for expulsion procedure established by Russian Law: Russian law requires administrative expulsion of a foreign national to be ordered by a judge (Article 3.10 and 23.1§3 of the Administrative Offences Code). However, in the present case the applicant was expelled without any judicial order (§§81 and 82 of the judgment). On the other hand, the Law on the Procedure for Entering and Leaving the Russian Federation as amended on 10/01/2003 provided certain executive authorities, such as the Ministry of Foreign Affairs or the Federal Security Service, with the power to decide that a foreign national's presence was undesirable although lawful on the territory of the Russian Federation (§ 49 of the judgment).

• The authorities are therefore invited to provide clarification as to the interplay and possible conflict between the relevant provisions of the Administrative Offences Code and amended Law on the Procedure for Entering and Leaving the Russian Federation. Further clarification is awaited as to how Russian procedure has been organised to avoid situations in which a valid residence permit is issued to a foreign national subject to an expulsion order, as well as and situations where a foreigner is being deported, notwithstanding the existence of a binding court order staying execution of the deportation order.

In addition to dissemination of the judgment (see below), other measures may be envisaged, such as changes in internal instructions within the competent authorities and stricter supervision of their compliance with the law, particularly by prosecutors, with appropriate sanctions in case of violation.

• Information is awaited in this respect.

In addition, it is noted that the prosecutor's office issued orders to discontinue criminal proceedings arising from the charges brought by applicant against the officials who had unlawfully expelled him by force in 2003 even though the expulsion proceedings had been stayed (§31 of the judgment).

• Further information is thus required, in the light of these proceedings, on the scope of criminal and disciplinary responsibility of state agents acting in clear violation of judicial orders staying expulsion procedures or otherwise proceeding to expulsions without valid court orders. In this context, information is also awaited on the criminal proceedings and sanctions against the officials responsible for the applicant's unlawful deportation.

            4) Publication and dissemination of the European Court's judgment: Given the implications of this judgment on domestic practice at different levels, it appears necessary to publish it and sent it out to all authorities concerned (immigration authorities, police, prosecutors, courts and the Federal Security Service) with an explanatory letter, drawing their attention in particular to their obligations to align their practice with the requirements of Russian Law and of the Convention as they arise from the judgment.

68443/01          Baklanov, judgment of 09/06/2005, final on 30/11/2005[172]

4353/03            Tarariyeva, judgment of 14/12/2006, final on 14/03/2007[173]

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.

            1) Criminal investigations

• 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 (1007th meeting): 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.

• Secretariat’ assessment: In its judgment the European Court found a number of shortcomings in the domestic investigations (see in particular §§ 92 and 94-95). It would appear that the most recent proceedings, resulting in the adoption of the Deputy Prosecutor’s decision of 6/07/2007 did not take these findings into account.

• Information is therefore awaited on measures envisaged or being taken to remedy the shortcomings in the investigations identified by the European Court with a view to establishing the responsibilities of all persons involved, in particular under other possible counts of indictment.

            2) Possible disciplinary measures

• Information provided by the Russian authorities. The Russian authorities have indicated that under Article 193 of the Labour Code a disciplinary sanction may be imposed not later than a month from the date of the discovery of the offence. A disciplinary sanction may not be imposed later than six months after the offence has been committed. This deadline does not run during the investigation. The Russian authorities therefore consider that in this particular case no disciplinary measure appears to be possible.

• Further information is awaited on how the 6-months period is calculated when there is a criminal investigation open and on what is considered to be the “date of discovery of the offence”.

            3) Civil action

• Finally, information is expected on the measures taken or envisaged in order to provide redress to the applicant for the consequences of the violations found.

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 (Section 4.2)

            2) Procedural violation of Article 2 in relation to the civil claim for compensation: see the Khashiyev and other cases (1007th meeting, October 2007, Section 4.3; CM/Inf/DH(2006)32-rev 2, CM/Inf/DH(2007)42 and Addendum).

            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”.

This information is currently being assessed by the Secretariat.

In this respect, 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.

26853/04          Popov, judgment of 13/07/2006, final on 11/12/2006

The case concerns the domestic courts' refusal to examine defence witnesses in the proceedings which resulted in the applicant's conviction and sentencing to ten years' imprisonment. The European Court found that such refusal constituted a limitation of defence rights incompatible with the guarantees of a fair trial since his conviction was based on conflicting evidence (violation of Article 6§3 (d) in conjunction with Article 6§1).

The case also concerns the poor conditions of the applicant's detention on remand in pre-trial detention facility SIZO 77/1 in Moscow between 2002 and 2004.

The European Court further considered that the applicant's detention in overpopulated cells (0.9 to 2.34 m² per inmate), combined with the length of the detention in such conditions, amounted to inhuman and degrading treatment. This situation was exacerbated by the lack of medical assistance required by the risk of a relapse of the applicant's cancer (violation of Article 3).

The European Court also found that the conditions of detention in the disciplinary cells of the YaCh-91/5 prison in Sarapul, combined with the time he spent therein, his physical condition and the lack of adequate medical care, amounted to inhuman and degrading treatment.

Moreover, despite the need for regular medical examination indicated in the applicant's medical file, the prison authorities failed to carry out such examination for 1½ years, i.e. until the European Court ordered them to do so (violation of Article 3).

Finally, the European Court found that the interrogation of the applicant by the prison administration in relation to the allegations he made before the European Court constituted undue interference with his right of individual petition in the absence of any transcripts of the meetings between the applicants and the state officials and outside of any investigation into his allegations (violation of Article 34).

Individual measures: The European Court awarded the applicant just satisfaction in respect of non‑pecuniary damage sustained as a result of the poor conditions under which he had been detained both in remand centres and in prison disciplinary cells.

1) Re-opening of proceedings: Given the procedural violation found, the European Court considered that the most appropriate form of redress would be the reopening of proceedings. This possibility is provided by Article 413 of the Code of Criminal Procedure (§ 263 of the judgment).

The applicant's representative has lodged numerous submissions requesting the reopening and subsequent annulment of the applicant's conviction. They were transmitted for comments to the Russian authorities.

• Proceedings initiated by the applicant's lawyer: He stated that on 22/01/2007 he lodged a supervisory‑review application in respect of the applicant's conviction before the Supreme Court of the Russian Federation (Article 408 §1 2) of the Russian Code of Criminal Procedure). He requested the annulment of his client's conviction on the ground that the charges against him were trumped up by the police with a view to concealing the identity of those who actually committed the offence.

It would appear that following the decision to re-open the proceedings in the applicant’s case taken by the Supreme Court on its President’s request, there was no longer any point to the supervisory-review application lodged by the applicant’s lawyer, which was accordingly returned to him.

• Proceedings re-opened at the authorities' request: In the meantime, on 29/08/2007, the Supreme Court, at the request of its President, granted reopening of proceedings in the applicant's case on the basis of newly discovered circumstances, i.e. the judgment of the European Court (Article 413 of the Russian Code of Criminal Procedure) and referred the case back to the first-instance court.

However the applicant's representative expressed doubts as to the effectiveness or advisability of this fresh examination of the case by the first-instance court, considering that it would be useless and cause further suffering to his client.

• Information is thus awaited on the progress of the new proceedings in the applicant's case and on the scope of this re-examination.

• Applicant’s detention after the re-opening of proceedings. By its decision of 29/08/2007, the Supreme Court quashed all judgments previously delivered in the applicant’s case, re-opened the proceedings and confirmed the applicant’s detention pending the new trial without however giving any reason. On 24/09/2007 the Preobragenskiy district court extended the applicant’s detention until 24/12/2007 on the ground of the gravity of charges, i.e. he is suspected of having committed an offence punishable by more then 2 years’ imprisonment.

On 28/09/2007 the applicant’s lawyer lodged a cassation application challenging the aforementioned decision confirming the applicant’s detention.

• Information is urgently awaited on the outcome of these cassation proceedings and on any other measure taken or envisaged in order to ensure the compliance with the requirements of Article 5 of the Convention.

2) The applicant's access to the requisite medical assistance: The European Court noted in its judgment that the applicant’s condition required regular examinations by an uro-oncologist and cytoscopy at least once a year (§211 of the judgment). It results from the judgment that on 16/09/2005 the applicant was examined at the oncological dispensary in Izhevsk by an uro-oncologist and underwent a cytoscopy. As a result of this examination, he was recommended dispensary supervision and a cystoscopy once a year (§233 of the judgment).

• Information provided by the Russian authorities. The applicant repeatedly refused to undergo a medical examination and hospitalisation. The authorities provided the Secretariat with the relevant documents signed by the applicant.

On 15/09/2007 the applicant was transferred to the pre-trial detention facility IZ-77/1 in Moscow. After his transfer the applicant was subject to medical examination; he did not complain of his state of health, which was considered as satisfactory.

On 4/10/2007 the applicant was taken for a required medical examination to the therapeutics department of the hospital of IZ-77/1. He will see the oncologist from the dispensary no 3 in Moscow, by whom he was followed before his arrest, and later undergo a cystoscopy provided he agrees to do so.

• Information is awaited on the results of this examination.

General measures:

            1) Refusal to examine witnesses for the defence

• Information is awaited on dissemination of the European Court's judgment to all courts, together with an explanatory note from the Supreme Court of the Russian Federation drawing their attention to the Convention's requirements regarding fair trial.

            2) Violation of Article 3 in relation to the applicant's detention on remand

- Poor conditions of detention on remand: The case presents similarities to that of Kalashnikov (1007th meeting, October 2007, Section 4.2, Interim Resolution ResDH(2002)123).

- Lack of requisite medical care: It results from the judgment that the applicant, who was seriously ill, did not receive the medical care he needed from the medical unit of the pre-trial detention centre (§§ 211-212 of the judgment). The general standards in this area are reflected in the Committee of Ministers' Recommendation Rec(2006)13 on detention on remand, including the conditions of its use and the establishment of guarantees against abuse - in particular § 37 concerning continuing medical treatment.

• Information submitted by the Russian authorities: According to Article 29 of the Fundamental principles of the health legislation of the Russian Federation, persons detained on remand or serving their sentences have the right to medical assistance, if need be, in state or municipal health institutions.

The Rules on providing medical assistance to these persons are established by the joint Order of the Ministry of Health and of the Ministry of Justice of 17/10/2005 No. 640/190. According to these Rules, detainees may be placed in state or municipal health institutions or consult outside specialists if necessary. The Russian authorities also indicate that they are currently focusing their efforts on ensuring the implementation of these Rules.

• Information is awaited on the concrete measures taken or envisaged to ensure the proper implementation of these Rules in order to provide persons in the applicant's situation with the requisite medical assistance, in particular on the possibility for detainees to make outside tests and consult outside specialists and the arrangements taken in this respect.

            3) Violation of Article 3 in relation to the applicant's imprisonment

Poor conditions of detention in prison punishment cells

• An action plan is awaited with a view to improving the conditions of detention in punishment cells, especially for persons with particular ailments.

- Lack of adequate medical care in prison: The question of lack of requisite medical care in prisons has to be addressed by the authorities to prevent new, similar violations. In this respect, the authorities' attention is drawn in particular to Committee of Ministers' Recommendation Rec(2006)2 on the European Prison Rules, especially part III concerning health.

• Information is awaited on the measures taken with a view to improving the medical care in prison for persons whose physical condition requires special supervision and follow up.

            4) Interference with the right of individual petition: The case presents similarities to that of Poleshuk in which a number of important measures (instructions, circular letters, etc…) have been taken to prevent similar violations on account of detention centres. The authorities are invited to adopt the similar measures in respect of the prisons.

• Information is awaited in this respect as well as 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 possibly by the General Prosecutor's office, to all authorities concerned.

            5) Publication: The judgment was published in the law journal Human Rights. Case-law of the European Court of Human Rights Nos. 1 and 2, 2007 and extracts were published in the Bulletin of the European Court (Russian version) No. 2, 2007.

59261/00          Menesheva, judgment of 09/03/2006; final on 09/06/2006[174]

55565/00          Bartik, judgment of 21/12/2006, final on 21/03/2007[175]

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: None. 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.

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 is therefore awaited on the measures taken or planned with a view to modifying the provisions impugned by the judgment.

                       - Cases concerning unlawful detention and its excessive length as well as insufficient grounds for detention[176]

                       CM/Inf/DH(2007)4

46082/99          Klyakhin, judgment of 30/11/05, final on 06/06/05

21153/02          Bednov, judgment of 01/06/2006, final on 01/09/2006

72967/01          Belevitskiy, judgment of 01/03/2007, final on 01/06/2007[177]

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

70276/01          Gusinskiy, judgment of 19/05/2004, final on 10/11/2004

19126/02          Komarova, judgment of 02/11/2006, final on 02/02/2007[178]

59696/00          Khudobin, judgment of 26/10/2006, final on 26/01/2007

75039/01          Korchuganova, judgment of 08/06/2006, final on 08/09/2006

7064/05            Mamedova, judgment of 01/06/2006, final on 23/10/2006

55669/00          Nakhmanovitch, arrêt du 02/03/2006, final on 02/06/2006

45100/98          Panchenko, judgment of 08/02/2005, final on 08/05/2005

54071/00          Rokhlina, judgment of 07/04/2005, final on 12/10/2005

7649/02            Shcheglyuk, judgment of 14/12/2006, final on 14/03/2007[179]

4459/03 Sidorenko, judgment of 08/03/2007, final on 08/06/2007

46133/99+        Smirnova, judgment of 24/07/2003, final on 24/10/2003

72881/01          Moscow Branch of the Salvation Army, judgment of 05/10/2006, final on 05/01/2007[180]

The case concerns the dissolution of the applicant organisation (a religious charity) after the refusal of its request for re-registration before the time-limit set in the Religions Act 1997. This law required all the religious organisations that had been previously granted legal-entity status to amend their articles of association in conformity with the new Act and to have them “re-registered”.

The European Court observed that the grounds for refusing re-registration of the applicant branch were not consistent throughout the domestic proceedings. As to the first reason adduced for refusing the applicant's re-registration request, namely the applicant's “foreign origin”, the Court found that this was neither “relevant and sufficient”, nor “prescribed by law”.

As to the second reason, namely the applicant's omission to set out its religious affiliation and practices in a precise manner, the Court observed that the Religions Act did not lay down any guidelines as to the manner in which the religious affiliation or denomination of an organisation should be described in its founding documents. Regarding the arguments that the applicant should be denied registration as a “paramilitary organisation” because of the use of the word “army” in its name and the fact that its members wore uniform, the Court found that there was no evidence to suggest that the applicant advocated violence, contravened any Russian law or pursued objectives other than those listed in its articles of associations. The Court concluded that in denying registration, the Moscow authorities did not act in good faith and neglected their duty of neutrality and impartiality (violation of Article 11 read in the light of Article 9).

Individual measures:

• Information provided by the Russian authorities (1007th meeting, October 2007): The Federal Registration Service of the Russian Federation has invited the representatives of the religious organisation “Moscow Branch of the Salvation Army” to submit, in accordance with the procedure provided by law, the documents required to registrar the modifications in its statute. No document has been presented by the representatives of this organisation.

General measures:

            Publication and dissemination: The Representative of the Russian Federation at the European Court has informed the Federal Registration Service and the Supreme Court of the Russian Federation of the European court’s judgment so that they may adopt individual and general measures and take the findings of the European Court into account in their daily practice.

The Federal Registration Service has summarised the implementation practice of its territorial departments with regard to the refusal of documents submitted by the religious organisations. This information was notified to all territorial departments for use in their daily practice, with a view to preventing new, similar violations.

These issues, including the judgment of the European Court, were also discussed at a seminar of all heads of territorial departments on 27-28 September 2007.

• More details would be useful on concrete measures (instructions, circular letters, etc) taken as a result of the judgment and in particular as to whether the judgment was sent out  to all domestic courts with a circular letter of the Supreme Court..

184/02              Kuznetsov and others, judgment of 11/01/2007, final on 11/04/2007[181]

The case concerns the interference by the Russian authorities with a religious event organised by the applicants who are members of the Chelyabinsk community of Jehovah's Witnesses. On 16/04/2000 the Chairwoman of the regional Human Rights Commission (“Commissioner”), accompanied by two police officers, interrupted a Bible study meeting with the aim of investigating a complaint about the unauthorised presence of children at a religious event. The applicants' subsequent civil complaint against state officials was rejected on the ground that they failed to show that the religious meeting had been terminated ahead of time on the orders of the Commissioner.

The European Court considered that the Commissioner had acted without any legal basis and that there was no ongoing inquiry of any kind, nor had there been any complaint of disturbance of the public order or any other indication of an offence warranting police involvement. Consequently, the Court found that the interference was not prescribed by law (violation of Article 9).

As to the applicants' unsuccessful civil complaint, the Court found that the domestic courts failed in their duty to state the reasons on which their decisions were based and to demonstrate that the parties had been heard in a fair and equitable manner (violation of Article 6).

Individual measures: The applicants informed the Secretariat on 04/05/2007 that the premises of Jehovah's Witnesses were raided by the police in April 2006 in Moscow and in April 2007 in Satka (Chelyabinsk region). They also submitted that the judgment of the European Court had been disregarded by the domestic courts in Moscow seised by members of Jehovah's Witnesses.

The Russian authorities have indicated that following the applicants’ submission to the Committee of Ministers the local department of the Ministry of the Interior in Satka carried out an internal inquiry into the facts which took place on 2/04/2007 in Satka (Chelyabinsk region).

As a result of this inquiry, disciplinary sanctions were imposed on the First Deputy to the Head of the Local Department, the Chief of the Criminal Police Tsivilev, and the District Police Officer Spiridonov.

General measures: The Ministry of the Interior has taken measures to reinforce its control over the activities of its officers and to prevent new, similar violations: in particular, additional training was organised with the officers of the Satka local department, during which they studied material concerning freedom of thought and of religion as well as the legislation governing demonstrations and meetings.

Moreover, the Ministry of the Interior has notified all local departments of their obligation to comply unconditionally with the judgment of the European Court.

The judgment of the European Court has been sent out to all domestic courts by letter of the Deputy President of the Supreme Court of the Russian Federation.

The need for further measures is being assessed by the Secretariat.

• Information is awaited on publication of the judgment of the European Court.

55066/00+        Russian Conservative Party of Entrepreneurs and others, judgment of 11/01/2007, final on 11/04/2007[182] [183]

- 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 proceedings

23377/02          Mokrushina, judgment of 05/10/2006, final on 12/02/2007[184]

3354/02            Gorbachev, judgment of 15/02/2007, final on 15/05/2007[185]

8630/03            Prokopenko, judgment of 03/05/2007, final on 03/08/2007[186]

These cases concern the violation of the applicants’ right to a fair trial due to the belated issue of a summons, in breach of domestic law, denying her the possibility of being present. The European Court noted that the domestic courts had failed to examine whether the applicants had been duly summonsed with a view to adjourning the case if appropriate (violations of Article 6§1).

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

As regards the Mokrushina case, the supervisory review proceedings initiated by the applicant following the European Court’s judgment are currently pending before the Moscow City Court.

• Information is awaited on the outcome of these proceedings.

• Information is awaited as to whether the other applicants requested reopening following the European Court’s judgments.

General measures: These cases present similarities, for example, to those of Groshev (judgment of 20/10/2005) and Yakovlev (judgment of 15/03/2005), in Section 6.2 following diffusion measures and the issue of circular letters drawing court's attention to these cases. A similar issue concerning criminal proceedings is examined in the Metelitsa case (987th meeting, February 2007, Section 2).

The European Court found that the relevant provisions of domestic law were not, in themselves, incompatible with the fair trial guarantees set out in Article 6§1, but that the courts had not applied them properly in these cases. In view of the constantly increasing number of similar cases, additional measures appear to be necessary.

The Mokrushina judgment was sent out to all courts by a letter of a Deputy President of the Supreme Court of the Russian Federation. A general discussion on the issues raised by this judgment was planned on 11/10/2007 within the Supreme Court.

• Information is awaited on practical arrangements made to ensure that parties to proceedings are summonsed in due time and on how the traceability of summonses is ensured.

• Information is also awaited on whether judges are under any obligation to examine the reasons for parties' failure to appear and the procedural steps to be taken in such cases.

- Cases concerning the failure to summons the accused in criminal supervisory-review proceedings

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

These cases concern a breach of the principle of equality of arms in that the Presidia of the Supreme Court and of Moscow City Court determined the applicants' cases in the absence of the applicants and their counsels on the ground that applications for supervisory review lodged in 1999 and in 2000 respectively by the Deputy President of the Supreme Court were not to the applicants' detriment. According to the Code of Criminal Procedure of 1960 then in force, the question of whether to summons the applicant and his counsel was left to the court's discretion (violation of Article 6§1 or in conjuction with Article 6§3c).

The Vanyan case also concerns the unfairness of the criminal proceedings against the applicant in that he was convicted of drug-dealing whilst the commission of the offence had been procured by undercover agents of the state and in the absence of any other element suggesting the applicant's guilt (violation of Article 6§1).

Individual measures: The applicants are entitled under Article 413 of the Code of Criminal Procedure to apply for re-opening of proceedings in their cases on the ground of the violations of the Convention found by the European Court. No further claim has been lodged by the applicants since then.

General measures:

            1) Gathering of evidence through undercover agents: Section 8 of the Operational-Search Activities Act provides that the techniques listed in its Section 6, including the use of undercover agents for “test purchase”, must be authorised by the head of the relevant organ without specifying any precondition to meet for a test purchase. In 1999 this Law was amended so that some investigation techniques (e.g. telephone tapping) could only be conducted upon a court order and with some preconditions.

• Information awaited: The authorities may thus wish to envisage the introduction of additional guarantees with regard to other techniques listed in the Law, including the use of undercover agents. In so doing, they might take into account the experience of other countries that solved such problems to comply with the Court's judgments (see Resolution ResDH(2001)12 in the case Teixeira de Castro against Portugal).

            2) Supervisory review procedure: The Code of Criminal Procedure of 2001 permits requests for supervisory review of criminal convictions only with a view to reducing the sentence. The convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court and may attend them provided they have made a specific request to that effect. However the Constitutional Court has declared this provision unconstitutional.

• Clarification is awaited as to the current rules applicable to the supervisory review procedure in criminal cases, in particular on whether applicants' appearance in person before the court is guaranteed where necessary, irrespective of whether or not they request it.

- 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

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

10929/03          Glazkov, judgment of 12/10/2006, final on 12/01/2007[187]

76964/01          Kirsanova, judgment of 22/06/2006, final on 22/09/2006

76835/01          Kolomiyets, judgment of 22/02/2007, final on 22/05/2007

44374/04          Kudinova, judgment of 02/11/2006, final on 02/02/2007

12049/02          Kutsenko, judgment of 1/06/2006, final on 1/09/2006

22118/02          Kuzin, judgment of 09/06/05, final on 09/09/05

63527/00          Levshiny, judgment of 09/11/2004, final on 30/03/2005

29510/04          Marchenko, judgment of 05/10/2006, final on 05/01/2007

15969/02          Nikitin Vladimir, judgment of 02/11/2006, final on 02/02/2007[188]

77089/01          Olshannikova, judgment of 29/06/2006, final on 29/09/2006

14949/02          Plaksin, judgment of 29/04/2004, final on 10/11/2004

28954/02          Rash, judgment of 13/01/2005, final on 13/04/2005

19457/02          Romanenko and Romanenko, judgment of 19/10/2006, final on 19/01/2007[189]

14983/04          Rybakov, judgment of 22/12/05, final on 22/03/06

38015/03          Salamatina, judgment of 01/03/2007, final on 01/06/2007

36219/02          Shelomkov, judgment of 05/10/2006, final on 12/02/2007[190]

36045/02          Shneyderman, judgment of 11/01/2007, final on 11/04/2007[191]

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[192]

75475/01          Vasyagin, judgment of 22/09/2005, final on 22/12/2005

26384/02          Vokhmina, judgment of 09/06/05, final on 09/09/05

10374/02          Volovich, judgment of 05/10/2006, final on 12/02/2007

42138/02          Yaroslavtsev, judgment of 02/12/2004, final on 02/03/2005

60408/00          Yemanakova, judgment of 23/09/2004, final on 02/02/2005

70190/01          Zimenko, judgment of 23/06/2005, final on 23/09/2005

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:

• Information provided by the Russian authorities:

As regards the Baburin case, the proceedings were closed by the decision of the Kuybyshevskiy District Court of 27/05/2005 delivered in the applicant's favour. This decision was confirmed by the Saint Petersbourg City Court on 10/08/2005 and became final.

As regards the Chevkin case, the proceedings pending since April 1998 have been ended by a new judgment of the Tula Regional Court of 21/03/2006 delivered in the applicant's favour and enforced in full on 20/12/2006.

As regards the Plaksin case, the proceedings were closed by the decision of the Stavropol Regional Court of 7/04/2004 delivered in the applicant's favour.

As regards the Sokolov case, the judgment delivered in the applicant's favour was enforced on 9/04/2004with regard to the payment of the sums granted and on 11/01/2005 with regard to the reinstatement of the applicant in his previous position.

• However, information is expected in the following cases:

As regards the Avakova case, confirmation is expected as to whether the judgment of 27/05/2005 upheld on 10/08/2005 has become final.

As regards the Kutsenko case, confirmation as to whether the judgment of 1/02/2005 upheld on 13/04/2005 has become final.

As regards the Olshannikova case, information is awaited on the measures taken to accelerate the proceedings, if still pending.

As regards the Kolomiyets case, information is awaited on whether the proceedings are still pending.

General measures:

            1) Disciplinary liability of judges: 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).

            2) 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.

In addition, on 02/03/2005, the Russian authorities were invited to present an action plan with respect to the possible measures taken or envisaged to ensure that the requirement of reasonable length of court proceedings is respected and to set up adequate domestic remedies allowing victims to obtain compensation before domestic courts and/or acceleration of the pending proceedings.

Apparently the Supreme Court of the Russian Federation is preparing a draft law setting up a domestic remedy before the Supreme Court in case of excessive length of proceedings.

• More information in this respect would be useful.

            3) 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.

            4) 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.

            5) 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.

with a circular letter by the Deputy President of the Supreme Court of the Russian Federation.

6) Federal programme on Development of the judicial system of the Russian Federation for 2007‑2011: The European Court has also pointed at the poor material conditions of functioning of Russian courts as a frequent cause of the excessive length of proceedings. A Federal programme on Development of the judicial system of the Russian Federation for 2007-2011, which in particular provides for a number of measures aiming in particular at improving the material conditions of functioning of Russian courts, was adopted on 4/08/2006.

• More details are awaited on measures taken or envisaged in the framework of this programme, in particular on measures aiming at recruitment of new judges, assessors and judicial assistants, better administrative organisation of courts and case-management, improvement of the efficiency of the activity of court experts and implementation of information technology resources, increase of the courts' budget, etc.

It would appear that a similar Federal programme was already implemented in 2002-2006.

• Thus, information is also awaited on comparative statistical data on average length of proceedings in different regions of the Russian Federation as well as on statistical data on the practical impact of all measures taken in the framework of the aforementioned program for 2002-2006 on the length of judicial proceedings.

Information would finally be useful on whether there is a monitoring mechanism, either within the Ministry of Justice or within the Supreme Court of the Russian Federation, supervising the length of judicial proceedings throughout the country.

- 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[193]

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 concerning Article 41 issues. Being satisfied with the terms of this agreement, the Court decided in its judgments of 3/05/2007 to strike out the case.

The Secretariat is currently examining whether further individual measures are needed.

General measures:

            1) Length of proceedings: This case presents similarities to the Vanessa Tierce case (Section 4.2).

            2) Peaceful enjoyment of property:

• Information is awaited concerning the measures envisaged 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. In its reply to this letter, the delegation indicated that the judgment of the European Court has been made public ad valvas palatii (the traditional means of formally publicising a document in San Marino) and sent out to various authorities concerned.

• The Secretariat is currently assessing whether further general measures are needed.

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.

Individual measures: None. The proceedings are closed.

General measures:

• Information provided by the authorities of San Marino: 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.

- 1 case against Serbia

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 Art. 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:

By letters received on 19/06/2007, 25/07/2007, 31/07/2007, 08/10/2007 and 12/10/2007 from the Serbian authorities and communications on 12/07/2007, 16/07/2007, 14/09/2007, 01/10/2007, 05/10/2007, 08/11/2007 and 09/11/2007 from the applicant's lawyer, the Committee was informed that hearings were held on 12/03/2007, 16/04/2007, 4/06/2007, 28/06/2007, 12/07/2007, 31/08/2007, 26/09/2007, 4/10/2007, 16/10/2007, 19/10/2007 and 8/11/2007, while the next hearings were scheduled for 19 and 22/11/2007. It appears that the interim access order has not yet been enforced.

 Moreover, on 19/10/2007 the child’s father was fined by the court for failure to produce the child for the purpose of enforcing the interim access order. Further, it appears from information provided by the applicant’s lawyer that these proceedings were thereby closed.

At the hearing on 12/07/2007 the competent court, noting that the child had been told by her father that her mother was dead, that she has not seen her mother for 9 years and that she suffered from certain psychological problems after learning that her step-mother is not her real mother, ordered the social care authorities to inform her that her mother is alive. The child accidentally learned the truth from her peers during the summer vacations.

• Information is awaited urgently on measures to enforce the interim access order and to conclude the pending proceedings.

Finally it is noted that the European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

General measures:

The Serbian authorities provided the following information on 19/06/2007 with respect to the general measures taken:

1) Violation of Article 6§1

The Serbian Constitution provides the right to a fair trial within reasonable time (Art. 32). Similarly, the 2005 Civil Procedure Act prescribes that a court should decide on claims and motions of the parties within reasonable time (Art. 10).

• Information is awaited on the implementation in practice of this legislation as well as the 2005 Civil Procedure Act (§60, 61 and 62 of the judgment) and the 2005 Family Law (§57 and 58 of the judgment) to avoid the excessive length of proceedings.

2) Violation of Article 8

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.

• Information is awaited on the application of the 2004 Enforcement Procedure Act and Criminal Code (see §74 of the judgment) to ensure enforcement of court decisions in situations similar to the present case and in others.

3) Violation of Article 13

• Information provided by the Serbian authorities (letters dated 19/06/2007 and 31/07/2007): a draft amendment to the Court Organisation Law has been prepared, providing a special appeal regarding excessive length of proceedings. The appeal would be filed with the court directly superior to the court at issue, which could order the lower court to conclude proceedings within a specific period.

In addition, a draft Constitutional Court Act has been prepared which 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. It further provides that the decision upholding the constitutional complaint shall be a legal ground to file a claim for compensation for damages or removal of other detrimental consequences before the competent authority.

• Information is thus awaited on the text of the draft amendment and timetable for the adoption of both draft laws and on any other measures possibly taken or envisaged, including an action plan with a clearly defined timetable with a view to introducing an effective remedy under domestic law for this kind of complaints, including a possibility to accelerate the pending proceedings and to provide compensation for such complaints.

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 (992nd meeting, April 2007, 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.sr.gov.yu). A commentary on the judgment by the State Agent was published on the Internet site of the Paragraf magazine and in the journal Selected Case- Law (Izbor sudske prakse) no. 5/2007.

- 2 cases against the Slovak Republic

74400/01           Berecová, judgment of 24/04/2007, final on 24/07/2007

This case concerns a violation of the applicant's right to respect for her private and family life due to the placement of her children in an institution on the basis of administrative injunctions (violation of Article 8).  Following her divorce from her husband in 1995, the applicant was granted custody of their two children. In May 2000, the District Office in Košice issued injunctions ordering urgent placement of the children in institutional care. The District Office found, in particular, that the applicant had grossly neglected her children's education and was suspected of ill-treatment, and that the father was unable to take care of them. The applicant appealed, but the injunctions were upheld by the Košice Regional Office. In June 2000 the children were placed in an institution. In the meantime, the District Office had informed the Košice District Court of the case. The District Court consequently initiated proceedings to place the applicant's children in institutional care in September 2000.

The European Court found that the placement of the applicant's children in an institution amounted to an interference, which was not “in accordance with the law”. The applicant had been unable to challenge the placement orders before a court, whilst the Slovak Constitution provides that under-age children may only be separated from their parents against the latter's will pursuant to a judicial decision.

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

On 08/01/2002 the Košice District Court delivered a judgment ordering that the applicant's children should not be placed in an institution. It became final on 13/09/2002.On 17/04/2002 the Košice District Office informed the applicant that the injunctions had ceased to have effect following the District Court's decision of 08/01/2002.

• Information provided by the Slovak authorities: On 31/01/2002 both children were returned to the applicant.

• Assessment: no further measure appears to be necessary.

General measures: The European Court noted that the relevant provisions of the Family Act of 1963 and the Social Assistance Act of 1998 then in force prevented the applicant from seeking a judicial review of the administrative injunctions and were contrary to Article 41(1) of the Constitution The application of these provisions had moreover led to a situation which was incompatible with Article 152(4) of the Constitution which provides that ordinary laws must be interpreted and applied in conformity with the Constitution (§52 of the judgment).

The disputed provisions enabling the administration to take urgent interim measures were struck down for reasons of unconstitutionality in 2002 and 2004 (§§ 45-46).

• Information is awaited on the provisions currently in force governing the placement of children in institutional care.

By letter of 24/10/2007 the Slovak authorities provided information on general measures. The Secretariat is currently assessing them.

57986/00          Turek, judgment of 14/02/2006, final on 13/09/2006

The case concerns a violation of the applicant's right to respect for his private life due to the unfairness of proceedings in which the applicant unsuccessfully challenged his registration by the former State Security Agency (StB) as one of their “agents” (violation of Article 8).

The European Court stated 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 these guarantees inasmuch as the burden of proof was laid upon him to show that he had been registered in breach of the rules applicable et 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.

The case also concerns the excessive length of certain civil proceedings (violation of Art. 6§1). The period to be taken into consideration began in May 1995 and ended in October 1999 with the decision of the Supreme Court (seven years and five months for two levels of jurisdiction).

Individual measures:

• Information provided by the Slovak authorities: The proceedings ended in 1999. The amendment to the Code of Civil Procedure providing the possibility to reopen domestic proceedings on the basis of a judgment of the European Court entered into force on 01/09/2005. Under Article 228§1(d), a party to the proceedings may apply for reopening if the European Court has found a violation and if the consequences of this violation have not been sufficiently redressed by just satisfaction. According to Article 230§1, reopening is subject to a time limit of three months fromthe date on which the person concerned learned the reason for reopening; or from the date upon which he or she might have requested it. In this case the applicant might request reopening until 14/12/2006, i.e. within three months following the day on which the European Court's judgment became final.

The European Court awarded just satisfaction for non-pecuniary damage and costs and expenses.

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

General measures:

            1) Violation of Article 8: 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 proving the truth, was repealed as of 20/12/1997 following a judgment of the Consitutional 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.

            2) Violation of Article 6§1: The problem of the excessive length of the proceedings is examined in the context of the Jakub (judgment of 28/02/2006) group of cases (1007th meeting, October 2007, Section 4.2).

- 6 cases against Spain

423/03              Díaz Ochoa, judgment of 22/06/2006, final on 22/09/2006

41745/02          Lacárcel Menéndez, judgment of 15/06/2006, final on 11/12/2006

These cases concern violations of the applicants' right of access to a court (violations of Article 6§1).

In the Díaz Ochoa case, the applicant was not informed in 1992 of proceedings brought against him as co‑defendant before a labour tribunal, which resulted in his being ordered to pay certain sums.

The applicant did not become aware of the proceedings until October 1998, when his wages were first attached in payment of the sums owed. He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seised to set aside the original order or at appeal had failed to remedy the situation caused by the applicant's absence from the main proceedings because of their unduly narrow construction of the law.

In the Lacarcel Menendez case, the applicant was owner of the flat in which she lived in Murcia, situated in an apartment block in multiple ownership. As she had not paid the joint maintenance costs, her co-owners took proceedings against her to obtain payment of a sum equivalent to 877 euros. In December 1995 the applicant was ordered to pay the amount due. In enforcement of this judgment, and at the co-owners' request, the applicant's apartment was seized and sold at auction.

In the intervening period, namely since 27/11/1995, two judges in Murcia, holding that the applicant was “presumed lacking in legal capacity”, authorised her detention in a psychiatric hospital and subsequently renewed that authorisation. In January 2000 the applicant was declared lacking in legal capacity and one of her sisters was appointed as her guardian. The sister applied for annulment of the proceedings which had resulted in the sale of the applicant's apartment. Her action was dismissed at first instance on the ground that, at the material time, the applicant had not been declared lacking in legal capacity by a final judgment. In addition, the Constitutional Court dismissed the amparo appeal submitted by the applicant's sister.

The European Court noted that, on account of her psychiatric state as “presumed lacking in legal capacity”, the applicant had been unable to suspect that proceedings were being brought against her. The manner in which the courts had examined her case had resulted in denying her effective access to a court. In addition, the courts which examined the action to have those proceedings declared void had failed to remedy this lack of participation in the main proceedings. The reasoning based on the non-retrospective nature of a declaration of incapacity seemed too formalistic and was incompatible with the applicant's placement, against her will, in a psychiatric hospital, on the orders of two other judges in the same city.

Individual measures: In both cases, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered.

• The Spanish authorities are invited, however, to provide information on the current situation of the applicants so as to assess whether further individual measures are necessary. 

General measures: The problem of the excessively application of procedural rules by Spanish courts has been raised in several previous cases which have been closed or are still under consideration by the Committee, in particular on the assumption that the Spanish courts will give direct effect to the European Court case-law, thus preventing new, similar violations (see Pérez de Rada Cavanilles against Spain, judgment of 28/10/1998, Resolution ResDH(2001)84, and Stone Court Shipping Company S.A. against Spain, judgment of 28/10/2003, section 4.2 for the 992nd meeting, April 2007).

However, these measures do not appear to redress the particular problems raised by these judgments.

• The Spanish authorities are therefore invited to provide information on the measures taken or envisaged to prevent new, similar violations. In any case, publication and the dissemination of the Court's judgment would appear necessary.

69966/01          Dacosta Silva, judgment of 02/11/2006, final on 02/02/2007

The case concerns the unlawfulness of the house arrest imposed on the applicant, a Civil Guard by his superiors in the context of military disciplinary proceedings. The applicant had been on sick leave since 05/01/1998 when, learning that one of his relatives was seriously ill, and having informed the duty officer, he left for his parents' home, where he stayed between 16/02/1998 and 24/02/1998. On 20/03/1998 his immediate superior imposed on him the disciplinary penalty of six days' house arrest for being absent without leave. Appeals by the applicant against his superior's order were all dismissed.

The European Court held that with regard to this deprivation of liberty the applicant's superior was not an independent body, nor was the sanction imposed in proceedings fulfilling the requisite legal guarantees (violation of Article 5§1 a)

Individual measures: The applicant is no longer deprived of his liberty. Before the European Court he stated that the finding of violation of his rights under the Convention constituted sufficient vindication in respect of the damages he had sustained.

• Assessment: This being the case, no further individual measure seems necessary.

General measures: The violation was due to the fact that the disciplinary sanction was not imposed by a competent court and that the appeal had no suspending effect. According to the Article 54§1 of the organic law, the disciplinary sanctions are immediately enforceable. Therefore it seems that legislative measures appear necessary in order to prevent new similar violations.

• Information is awaited on the legislative measures taken or envisaged in order to transfer the task of imposing disciplinary sanctions to a competent court or in order to introduce an immediate judicial review of the superiors' decisions. For this purpose, an action plan is awaited. In any event, the publication of the Court's judgment is awaited.

77837/01          Saez Maeso, judgment of 09/11/2004, final on 09/02/2005[194]

1483/02            Puig Panella, judgment of 25/04/2006, final on 25/07/2006

This case concerns the violation of the presumption of the applicant's innocence. In 1992 the Constitutional Court overturned military proceedings which had resulted in the applicant's serving a prison term. The applicant lodged a request for compensation. This request was rejected by the Ministry of Justice and the administrative courts on the basis of doubts as to the applicant's guilt, his conviction having been set aside on account of a violation of the principle of the presumption of innocence in respect of the inadequacy of the evidence adduced against him (violation of Article 6§2).

The European Court found that that national authorities had applied Article 394(1) of the Structural Law on the Judiciary which provides that entitlement to compensation in respect of provisional detention is limited to those who are acquitted or those against whom proceedings have been definitively dropped because the accusations against them proved groundless. The Court found that in this respect the authorities had treated the applicant with excessive severity, as his request was not related to provisional detention but to the sentence he had served and since, in addition, he had not been acquitted nor the charges against him dropped. Reliance on Article 394(1) had led them to examine whether the applicant's responsibility for the alleged acts had been sufficiently established, and thus pronounce upon his guilt.

They might have applied Article 292, which covers more general situations of judicial error or dysfunction. The Court also underlined the fact that the applicant's conviction had already appeared on his criminal record even though it had been definitively set aside by the Constitutional Court.

Individual measures: The applicant's criminal record has now been erased.

• Information is awaited on the applicant's present situation particularly concerning whether it is possible to reopen the compensation proceedings.

General measures: Given that the national authorities had applied a wrong provision of the law, the publication and dissemination of the European Court's judgment to the relevant courts and authorities, with a circular or note explaining the problems found by the Court, would appear to be sufficient. 

24668/03          Olaechea Cahuas, judgment of 10/08/2006, final on 11/12/2006

This case concerns the failure of the Spanish authorities in their obligation to comply with an interim measure indicated under Rule 39 of the Rules of the European Court (violation of Article 34).

The applicant, against whom an international warrant had been issued, was arrested in July 2003 in Almeria (Spain) during a routine check. Peru requested his extradition on the basis of a terrorist offence. The applicant was taken into custody pending a ruling on his extradition and he agreed to “simplified extradition” (to be returned immediately to the requesting country) and the benefit of the “specificity rule” (to be tried only for the offence in respect of which extradition is requested).

Noting that the Peruvian government was bound by international standards in the field of the protection of fundamental rights, such as the American Convention on Human Rights, and that it undertook not to sentence the applicant to death or life imprisonment, the Audiencia Nacional granted the applicant's extradition on 18/07/2003. The applicant lodged an appeal against that decision without success.

The applicant lodged an application with the European Court, which indicated to the Spanish government on 06/08/2003, under Rule 39 (interim measures) of the Rules of Court, that it should not extradite him to Peru before the examination of the case on 26/08/2003. The following day, however, the applicant was extradited to Peru. He was conditionally released in November 2003 for lack of sufficient evidence.

The European Court stressed that an interim measure is by its very nature temporary, the need for which is assessed at a precise point in time in the light of the existence of a risk which might hinder the effective exercise of the right of application guaranteed by Article 34. If the state concerned does not comply with an interim measure, there is a continuing risk of hindering the effective exercise of the right of application and it is only in the light of what happens after the Court's decision and the government's non-compliance that it can be determined whether the risk has materialised or not. Even if it does not, the force of the interim measure has to be regarded as binding. A state's decision regarding compliance with the measure cannot be adjourned pending confirmation as to whether a risk exists. Mere non-compliance with an interim measure indicated by the Court on the basis of the existence of a risk is, in itself, a serious hindrance, at that precise point in time, of the effective exercise of the right of individual application.

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

Further individual measures do not seem to be needed in this case.

General measures:

• The Spanish authorities are invited to provide an action plan on measures taken or envisaged, legislative or other, to ensure that all competent authorities comply in the future with their obligation under the Convention to abide by the Court's decisions indicating interim measures, thus ensuring the effective exercise of the right of individual application guaranteed under Article 34. Given the particular importance of this right, it would appear important to ensure publication and wide dissemination of the judgment to all relevant authorities.

- 2 cases against Sweden

62332/00          Segersted-Wiberg and others, judgment of 06/06/2006, final on 06/09/2006[195]

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 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 Articles 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:

• The Swedish authorities are invited to confirm that the information in question is no longer kept on file by the Security Police.

General measures:

            1) Violation of Article 8:

• Information is awaited: on the publication and dissemination of the European Court's judgment to the Security Police.

            2) Violation of Articles 10 and 11: Publication and dissemination are also sufficient measures in this respect.

            3) Violation of Article 13:

• The Swedish authorities are invited to provide information on the functioning the Data Inspection Board and/or on the possible introduction of another effective remedy.

                       - Case of length of civil proceedings

73841/01          Klemeco Nord AB, judgment of 19/12/2006, final on 19/03/2007

This case concerns length of civil proceedings concerning alleged negligence of the applicant company’s lawyer. The proceedings began in 1993 and ended in 2000 lasting thus over 7 years and 4 months (violation of Article 6§1).

Individual measures: The proceedings are already closed.

General measures: The European Court’s judgment has been translated and published on the government’s website (www.manskligarattigheter.gov.se) and on the website of the National Courts Administration (www.domstol.se) and it has been disseminated to the Supreme court , the Courts of Appeal, the Municipal Court of Helsingborgs, to the Ombudsman and the Chancellor.

The length of civil proceedings does not appear to be a systematic problem in Sweden.

• However, information could be useful on any effective remedy provided in length of proceedings cases. 

- 2 cases against the “the former Yugoslav Republic of Macedonia”

                       - Cases of length of proceedings before administrative organs and courts

13898/02          Dumanovski, judgment of 08/12/2005, final on 03/07/2006

66907/01          Docevski, judgment of 01/03/2007, final on 01/06/2007[196]

The cases concern the excessive length of proceedings mainly before administrative bodies, such as the Kumanovo Employment Bureau and the Ministry of Labour and Social Policy, the Pension and Disability Insurance Fund and its Second Instance Commission, relating to the applicants'various social protection compensations. Proceedings lasted from 1995 to 2001 in the Dumanovski case and from 1996 to 2005 in the Docevski case (violations of Article 6§1).

Individual measures: None, the proceedings are closed.

General measures:

• Information awaited: on possible legislative or other measures to accelerate proceedings before the above administrative organs.

The authorities' attention is also drawn to the CM Recommendation Rec(2004)6 to member states on the improvement of domestic remedies.

• Information is also awaited on any measures envisaged to provide effective remedies for this kind of violations.

- 45 cases against Turkey

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

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

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

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

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

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

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

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

Individual measures: On 24/03/2006, the Attorney General of the “TRNC” sent a letter to the police authorities, ordering them to initiate an additional investigation into the death of Mr Adalı, taking into account the shortcomings identified in the Court’s judgment.

• Information is still awaited on the follow-up given to this letter and in particular on the specific steps taken in the framework of this additional investigation.

General measures:

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

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

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

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

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

            2) Violation of Article 11:

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

Moreover, the provisions according to which the passage is carried out on a day trip basis and the return must take place before midnight were repealed by a decision of the “Council of Ministers of the TRNC” No. T-820-2004.

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

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

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

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

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

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

Individual measures: The Turkish authorities have stated that the possibility of reopening the investigation into Mr Kakoulli's killing is currently being examined by the “TRNC authorities”. They have drawn attention to the difficulties of such a reopening ten years after the killing occurred. The Turkish authorities provided further information regarding individual measures. This information is currently being studied by the Secretariat.

General measures: On 06/06/2006, the Secretariat wrote to the Turkish authorities concerning the presentation of an action plan for the execution of this judgment. At the 976th meeting the Turkish authorities informed the Committee that an article on the judgment had been published in the Turkish Cypriot Bar Association Review and that the judgment had been disseminated to all relevant authorities, including to the security forces and the “President of the TRNC”.

The Turkish authorities have further provided extensive information on the regulatory framework in the “TRNC” regarding the use of firearms by security forces. The information concerns both laws applicable to all security forces and instructions for security forces serving along the green line. Relevant provisions of both these instruments are reflected in the document transmitted, in particular in the context of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The legal regime as regards the punishments 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 is described in several laws. 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.

The compatibility of this legal framework with the principle of proportionality, and in particular with the principle of “absolute necessity” for the use of force enshrined in the Convention is being assessed.

• The authorities' views in this respect would be useful. In addition, information on the dates of entry into force of the laws and instructions referred to would be appreciated.

28290/95          Güngör, judgment of 22/03/2005, final on 22/06/2005

The case concerns the lack of an effective investigation into the circumstances of the murder of the son of the applicant, at the time a Member of Parliament, in an official apartment in the parliamentary quarter of Ankara in 1991. The 21-year-old was found dead in his bed, having received multiple stab wounds and a bullet to the head. Criminal and parliamentary investigations initiated at the time failed to identify the perpetrators. 

The European Court pointed out the following shortcomings in those investigations: first, certain items of evidence – such as objects that were visible on a video recording made just after the crime was committed – had disappeared and were not among the exhibits in the case-file. Secondly, discrepancies between different expert reports demonstrated that the security forces had not done enough to preserve the evidence. Nor had they taken reasonable steps to follow up lines of inquiry suggested to them by different sources regarding the identity of the killers and the circumstances in which the crime had been committed.

The Court further found that although the investigators had considered it necessary to obtain statements from members of parliament living in the parliamentary quarter at the time of the murder and although there was no legal obstacle to prevent their doing so, they had not taken all the necessary statements (violation of Articles 2 and 13).

Individual measures: A commission was established by Parliament in February 2005 to carry out a fresh investigation into the murder of the applicant's son.

• Information provided by the Turkish authorities: In their reply of 22/11/2005 to the Secretariat's initial-phase letter of 13/10/2005, the Turkish authorities confirmed that the Parliamentary Investigation Commission had been set up but gave no information as to what steps it had taken so far. At the 982nd meeting (December 2006) the Turkish authorities indicated that the Commission had carried out a fresh investigation, including hearing witnesses and an on-site examination of the crime scene.

• Information is awaited concerning the outcome of the investigation carried out by the Parliamentary Commission.

General measures: The Court considered that Turkey must act without delay to discharge its obligation to ensure that its legislation is clarified so that parliamentary immunity no longer operates in practice to prevent prosecutions for ordinary criminal offences in cases in which members of parliament or their families are involved as possible witnesses or suspects (see § 111 of the judgment).

• Information provided by the Turkish authorities: In their reply of 22/11/2005 the Turkish authorities said that as the sole purpose of parliamentary immunity is to protect parliamentarians in respect of actions falling within their function, it does not prevent the investigatory authorities from carrying out criminal investigations concerning them. In any event, immunity does not extend to parliamentarians' families, in respect of whom the authorities are free to take any necessary investigatory measures in the framework of criminal investigations. The Secretariat notes that these submissions by the Turkish authorities had already been refuted by the Court, which explicitly referred to the measures Turkey must take to avoid future violations.

• Information is awaited as to what measures the Turkish authorities envisage so that parliamentary immunity no longer operates in practice as an obstacle to carrying out criminal investigations.

35962/97          Gömi and others, judgment of 21/12/2006, final on 21/03/2007

The case concerns the lack of an effective investigation into the death of four of the applicants' relatives (procedural violation of Article 2) and of injuries caused to a number of the applicants in 1995-96 following a raid to quell a riot and rescue a gendarme taken hostage by rioters (procedural violation of Article 3).

The European Court found that it was not in a position to establish beyond a 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.

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 CM/Inf/DH(2006)24-rev 2).

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 EU harmonisation laws.

• Information is however 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 European Court’s judgment to the relevant authorities appear necessary.

51358/99          Paşa and Erkan Erol, judgment of 12/12/06, final on 23/05/07

The case concerns the authorities’ failure to take all safety measures around a mined military zone, thereby exposing the applicant, Erkan Erol, a minor, to severe injury and risk of death (violation of Article 2).

In March 1995, the military authorities laid anti-personnel mines along one side of the premises of the Akdemir gendarmerie command in the district of Pertek (Tunceli). They informed the villagers about the mines in advance in writing and verbally, cordoned off the zone with barbed wire at waist level and placed warning signs at 20-metre intervals.

In May 1995, Erkan Erol, then aged nine, followed his sheep across the barbed-wire fence into the military zone and was seriously wounded by the explosion of a mine.

In 1996, Erkan’s parents brought proceedings to seek compensation. The administrative courts dismissed their claim, finding that the state was not at fault since sufficient safety measures had been taken around the prohibited area in the form of barbed-wire, notices and verbal warning given to the local people.

The European Court noted that the mined area had been village pasture land, where the villagers had regularly gone to feed their animals. The safety measures had been of particular importance and it had been the authorities’ duty to take any necessary measures to prevent innocent civilians from entering the area. In view of these considerations, the Court found it incomprehensible that a grazing area should have been mined and simply surrounded by two rows of barbed wire that were relatively far apart and clearly insufficient to prevent children crossing over.

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

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

General measures: The European Court noted that because of the danger they represented, in particular for young children, the use of anti-personnel mines had been widely condemned by international opinion and had ultimately been prohibited under the Ottawa Convention, which Turkey had in fact ratified into domestic law in 2004. Pursuant to the Ottawa Convention, member states are under an obligation to destroy existing anti-personnel mines.

• Information provided by the Turkish authorities (29/10/2007) in response to the Secretariat’s initial phase letter: Since 1996, a number of three-year moratoria have been put into place providing for the prohibition of production, sale and transfer of anti-personnel landmines and the systematical mine clearance began in 1998.

In addition, pursuant to the Ottawa Convention, the Turkish government will continue to destroy landmines until the deadline in 2014. The government periodically informs the United Nations about the total number of anti-personnel mines destroyed and preparations for the destruction of remaining mines. A military installation was also put into place in July 2007 for further mine clearance operations. Such installation will become operational as soon as possible. Destruction efforts thus continue.

Also, the judgment of the European Court was published and sent out to all the authorities concerned.

• Given the year until which mine clearance efforts are expected to continue under the Ottawa Convention (2014), information is awaited on measures taken or envisaged by the Turkish authorities to enhance safety measures around mined areas.

52067/99          Okkalı, judgment of 17/10/2006, final on 12/02/2007

45906/99          Özcan Zeynep, judgment of 20/02/2007, final on 20/05/2007

These cases concern the de facto impunity accorded to police officers convicted of ill-treatment of the applicants, a minor in the first case, in police custody (violations of Article 3). Although the perpetrators were eventually convicted of inflicting ill-treatment to obtain a confession, the criminal courts handed down the minimum sentences of one-year imprisonment, the execution of which was then suspended.

The European Court found that the judges' decision suggested that their power of discretion had been used to lessen the consequences of extremely serious unlawful acts rather than to show that such acts could in no way be tolerated. In addition, the police officers in question had remained in office, which the Court regarded as noteworthy in both cases.

In conclusion, the Court considered that the criminal-law system, as applied in the applicants’ cases, had proved to be far from rigorous and had had no dissuasive effect capable of ensuring the effective prevention of such unlawful acts. Accordingly, the Court found that the criminal proceedings, in view of their outcome, had failed to provide appropriate redress for infringements of Article 3.

Individual measures:

• Information is awaited on any measures taken or envisaged to ensure proper redress to the applicants, including in particular the dismissal of the police officers convicted of torture.

General measures:

• Information is awaited on the general measures taken or envisaged in the light of the shortcomings identified by the European Court in the criminal justice system regarding protection from ill-treatment, especially when minors are concerned.

- Cases concerning the ineffectiveness of domestic proceedings brought following ill treatment inflicted by members of the security forces

33097/96+        Batı and others, judgment of 03/06/2004, final on 03/09/2004

34592/97          Ağdaş, judgment of 27/07/2004, final on 27/10/2004[197]

34491/97          Demir Ceyhan and others, judgment of 11/01/2005, final on 11/04/2005

40262/98          H.Y. and Hü.Y., judgment of 06/10/2005, final on 06/01/2006

53147/99          Şahin Zülcihan and others, judgment of 03/02/2005, final on 03/05/2005

35072/97+        Şimşek and others, judgment of 26/07/2005, final on 26/10/2005

43918/98          Sunal, judgment of 25/01/2005, final on 25/04/2005

32446/96          Yaman Abdülsamet, judgment of 02/11/2004, final on 02/02/2005

These cases mainly concern the shortcomings of domestic 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).

- Lastly, 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).

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 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.

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 concerning 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's judgment in the case of Batı and Others, in particular to police forces, public prosecutors, assize courts and the Court of Cassation.

46827/99          Mamatkulov and Askarov, judgment of 04/02/2005 - Grand Chamber[198]

The case concerns the applicants' extradition to Uzbekistan on 27/03/1999 following a decree issued by the Turkish Cabinet on 19/03/1999 despite the European Court's request for interim measures (Rule 39) indicating on 18/03/1999 to the Government that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”. Both applicants, who were charged in Uzbekistan of murder and a terrorist bomb attack on the Uzbek President, were convicted by the Uzbek courts on 28/06/1999 to 20 and 11 years' imprisonment respectively.

Pending their extradition, the applicants complained before the European Court that there were substantial grounds for believing that they will be subjected in Uzbekistan to treatment proscribed by Article 3. They further complained under Article 6 of the unfairness of the extradition proceedings in Turkey and of the criminal proceedings in Uzbekistan.

On 19/04/1999 the Turkish Government informed the Court that it had received assurances from the Uzbek authorities that the applicants' property would not be liable to general confiscation and that the applicants would not be subjected to acts of torture or sentenced to capital punishment. The Uzbek authorities further noted that the Republic of Uzbekistan was a party to the United Nations Convention against Torture and accepted and reaffirmed its obligation to comply with the requirements of the provisions of that Convention.

The European Court, reiterating the Contracting States' undertaking to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application, found that a failure by a Contacting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right (violation of Article 34). The Court also found that, as a result of Turkey's failure to comply with its obligation under Article 34, it was prevented from assessing the applicants' complaints under Articles 3 and 6 of the Convention.

Individual measures: The case raises the general question of the extent to which the respondent state can and should rectify the consequences of its failure to comply with interim measures ordered by the Court especially when this failure has as a result that the Court cannot rule on the merits of the applicants' claims.

The aforementioned question is all the more relevant in the light of the Court's new conclusion that the failure to comply entails a violation of the Convention.

At the 922nd meeting (April 2005) the Turkish authorities informed the Committee that the Turkish Ambassador in Uzbekistan has been following the developments concerning the applicants' situation and that the Committee will be informed of any new developments. 

Payment of just satisfaction: The Turkish authorities paid the amount of just satisfaction awarded by the Court into escrow because the applicants' representatives were unable to submit a valid power of attorney to the authorities (one applicant’s name was false as he used a counterfeit passport and the other applicant’s name was not spelled correctly). In a letter of 09/03/2007 the applicants' representatives informed the Secretariat that they were unable to withdraw the just satisfaction from the escrow account because it was impossible for them to meet with their clients in Uzbekistan due to security concerns. This letter was sent to the Turkish authorities on 13/03/2007. However, no reply has been received yet.  On 30/10/2007, the Secretariat inquired whether the Turkish authorities could obtain declarations from the applicants designating persons who could either withdraw the amounts in escrow or give valid powers of attorney to the applicants’ representatives in Turkey who in turn could withdraw those amounts.

• Information is awaited in writing as to whether the Turkish authorities could consider this option.

General measures:

• Information is awaited on legislative or other measures envisaged to ensure in the future that all competent authorities comply with their obligation under the Convention to abide by the Court's decisions imposing interim measures, thus ensuring the effective exercise of the right of individual application guaranteed under Article 34.

In this context, the authorities' attention could be drawn to the Committee's Resolutions ResDH(2001)66 and ResDH(2006)45 stressing that the principle of co-operation with the Court embodied in the Convention is of fundamental importance for the proper and effective functioning of the Convention system and calling upon the governments of the Contracting States to ensure that all relevant authorities comply strictly with this obligation.

• Information is also expected concerning the publication and wide dissemination of the judgment of the European Court, in particular to the Council of Ministers and to all other relevant authorities.

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

                       Interim Resolution CM/Res/DH(2007)109

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

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

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

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

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

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

            1) Events after the judgment of the European Court became final: On 12/07/2007 the applicant’s representatives informed the Secretariat that the applicant had been summoned on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction (This information was communicated to delegations on 03/08/2007, DD(2007)440). Several NGOs, both in and outside Turkey, have shown their interest and conveyed their concerns for the applicant’s situation.In the meantime, the applicant’s request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on 27/07/2007. In its decision the court referred to the decision taken by the Committee at its 997th meeting (June 2007) and to the undertaking of the Turkish authorities at that meeting concerning the draft law that was under preparation in order to find a solution to the applicant’s situation. However, according to the court, the undertaking of the Turkish authorities could not lead to a stay of execution of the applicant’s sentence because the content of the law under preparation – including whether or not it contained provisions that would apply for or against the applicant’s case – was unknown. The court, therefore, sentenced the applicant to 17 months and 15 days’ imprisonment on the basis of his previous convictions. The applicant lodged a petition of objection with the Military Court of Cassation on 03/08/2007. The case is still pending before that court.

            2) Interim resolution adopted at the 1007th meeting (October 2007): In the absence of any information on individual measures taken, despite the declaration of the Turkish authorities that a draft law was being prepared which was intended to cover the individual measures necessary in this case (see below), the Committee decided to adopt Interim Resolution (CM/ResDH(2007)109) urging Turkey without further delay to take all necessary measures to put an end to the violation of the applicant’s rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention.

The Committee further decided to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.  

General measures:

• Information provided by the Turkish authorities (997th meeting): A draft law was being prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case and that this draft law would be transmitted to the Prime Minister’s Office for submission to Parliament. This law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on grounds of “persistent disobedience” of military orders. According to the Turkish authorities, this draft law is intended to remedy all negative consequences of the violation for the applicant.

The Turkish authorities also gave information on the publication and dissemination of the judgment to the relevant authorities. The judgment of the European Court also received wide media coverage.

At the same meeting the Committee invited the Turkish authorities to submit a copy of this draft law and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament. No information on the adoption of this law, including its draft, has been received so far. 

                       - 3 cases concerning non-enforcement of court decisions in cases of environmental protection

1) 46117/99      Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005

2) 46771/99      Öçkan and others, judgment of 28/03/2006, final on 13/09/2006[199]

3) 36220/97      Okyay Ahmet and others, judgment of 12/07/2005, final on 12/10/2005 - Interim Resolution CM/ResDH(2007)4

1) and 2) Taşkın and Öçkan cases: These cases concern violations of the applicants' right to their private and family life due to decisions by the executive authorities to allow continuation of a gold-mining operation in Bergama using a sodium cyanide leaching process, in contravention of a Supreme Administrative Court decision of 13/05/1997 annulling the operation permit on account of the risk to the local ecosystem and to human health and safety posed by the chemicals.

In 1994 the Ministry of the Environment authorised the exploitation of the mine and granted permission for the use of sodium cyanide leaching after a preliminary public consultation and on the basis of an impact study, as required by the Environment Act.

Following the decision of the Supreme Administrative Court of May 1997, a report drawn up at the Prime Minister's request concluded that the threats to the ecosystem listed in the Supreme Administrative Court's decision had been reduced to a level below the threshold of acceptability. On the basis of that report, the authorities granted permission to continue operations using cyanide leaching at the mine, on a provisional basis. However, the courts overturned the report and imposed stays of execution on administrative decisions based on its conclusions.

In a “decision of principle” which was not made public, the Council of Ministers decided that the gold-mine could continue its activities. In March 2004 the Supreme Administrative Court ordered a stay of execution of that decision on the grounds that it had neither been published in the Official Gazette nor made public. An application for judicial review of the Council of Minister's decision is pending before the Supreme Administrative Court.

The European Court found that the government had failed in its obligation to guarantee the applicants' right to respect for their family life by annulling any useful effect of the procedural guarantees afforded to them by the applicable law and the judicial decisions taken.

In so declaring, the Court based itself in particular on the fact that the administrative authorities had not ordered the closure of the mine immediately upon the 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).

The applicants (315 in total) in the case of Öçkan and others are the fellow-villagers of the applicants in the case of Taşkın and others.

Individual measures: The applicants have informed the Secretariat that the Ministry of the Environment granted a new operating permit to the sameprivate 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. These applications are pending before the European Court, except for the judgment in the case of Lemke (Application No. 17381/02) which became final on 05/09/2007.

                   - 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 operating 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.

These proceedings are still pending before the Izmir Administrative Court.

                   - 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 proceedings concerning the annulment of the new operating 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 another persons concerned had been implicated in the decision-making process on the environmental impact report as required under the Convention (see §§ 118 and 119 of the judgment of the European Court). 

General measures: See below

3) 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 992nd meeting (April 2007) that filter mechanisms have already been installed in one of the power plants and two others will be installed in August 2007. In the meantime, the power plants are being operated at minimum capacity without causing danger to the environment.

General measures (in respect of all three 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 all three 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

• 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).

• Information is awaited on measures envisaged by the Turkish authorities to ensure that deprivation of liberty for disobedience is only ordered by a court offering judicial guarantees.

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 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 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:

• Information is awaited on the measures taken or envisaged by the Turkish authorities with a view to preventing new, similar violations, in particular on the instructions given to village guards in carrying out armed operations. Information on whether or not an administrative authorisation is required in the investigation of crimes allegedly committed by village guards appears necessary. At the outset, the publication and dissemination of the judgment to the relevant authorities, in particular with a circular drawing the attention of the security forces to the requirements of the European Convention also appear necessary. The response of the Turkish authorities to the Secretariat’s initial phase letter is awaited. 

56566/00          Kaplan Yaşar, judgment of 24/01/2006, final on 24/04/2006[200]

35839/97          Pakdemirli, judgment of 22/02/2005, final on 22/05/2005[201]

48176/99          Turhan, judgment of 19/05/2005, final on 19/08/2005, rectified on 30/03/2006[202]

64178/00+        Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş., judgment of 30/03/2006, final on 30/06/2006[203]

47533/99          Ergin No. 6, judgment of 04/05/2006, final on 04/08/2006

56827/00          Düzgören, judgment of 09/11/2006, final on 09/02/2007

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 Düzgören case concerns the conviction of the applicant, a journalist, by a military court for distributing leaflets in support of a conscientious objector.

The European Court noted that the actions concerned did not incite to hatred or violence nor aim to provoke immediate desertion and concluded that the convictions were not “necessary in a democratic society” (violations of Article 10).

The European Court also found that the military courts which tried the applicants, entirely composed of military judges, could not be regarded as independent and impartial jurisdictions (violation of Article 6§1).

Individual measures:

            1) Case of Ergin No 6: Confirmation has been received that the applicant's conviction was erased from his criminal record.

            2) Düzgören case:

• In addition to the payment of the just satisfaction, confirmation is expected of the erasure of all consequences of the violation found, namely the removal of the applicant's conviction from his criminal record.

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 taking 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.

21768/02          Selçuk Vehbi, judgment of 10/01/2006, final on 10/04/2006

The case concerns the excessively long detention on remand of the applicant (sixteen years old at the material time). The applicant, who was charged with robbery, was detained on remand in December 2001 and was released during his trial in May 2002.

The European Court observed that the national court had refused to release the applicant for more than four months while the proceedings were pending despite the fact that the applicant's lawyer, referring to Article 5 of the Convention and invoking Article 37 (b) of the United Nations Convention on the Rights of the Child, requested his release on the ground that he was a minor. The Court further found that the judicial decisions, being worded in a general way, such as “taking into account the nature of the crime and the state of evidence” did not sufficiently specify the reasons justifying the applicants' detention (violation of Article 5§3).

Individual measures: The applicant is no longer detained on remand.

General measures: At the outset, the publication and dissemination of the judgment of the European Court, in particular to criminal courts, appear necessary.

• Information is also awaited as to whether criminal proceedings against minors fall under the jurisdiction of ordinary criminal courts or whether the Turkish authorities have taken or envisage measures to ensure that minors are tried by special courts. Lastly, information is awaited as to whether Turkish law provides sufficient safeguards to ensure that minors are only remanded in custody as a measure of last resort and for the shortest time.

73792/01          Öner Sultan and others, judgment of 17/10/2006, final on 17/01/2007

The case concerns the unlawful arrest and detention of the first applicant, Ms Öner, while she was accompanied by her children in October 2000. In this respect, the European Court noted that the first applicant’s arrest and detention resulted from a material error: an outdated wanted notice kept in the central police database, which was no longer valid. In addition, the Court stated that nothing could justify 18 hours’ detention to verify the lawfulness of the arrest and that the two children should have been spared the perils of such arrest and detention, as well as of the physical and psychological harm that they suffered due to the conditions imposed on their mother (violation of Article 5§1).

The case also concerns the ill-treatment suffered by Ms Öner during her arrest. The European Court found that these circumstances also violated the same provisions in respect of the first applicant’s two children who were with her throughout her arrest and detention (violation of Article 3).

Lastly, the European Court found that the applicants did not have an effective remedy against these infringements, as the administrative and criminal investigations were unsatisfactory and the necessary administrative council authorisation was withheld (violation of Article 13).

Individual measures: Individual measures are under examination by the Committee in cases concerning the actions of the Turkish security forces (see Aksoy group, 1007th meeting, October 2007, Section 4.3). In addition, no measure is required in respect of the unlawful arrest and detention since The European Court granted just satisfaction in respect of non-pecuniary damage and the detention situation has ended.

General measures:

1) Ill-treatment and absence of an effective remedy: General measures are under examination by the Committee in cases concerning the actions of the Turkish security forces (see Aksoy group1007th meeting, October 2007, Section 4.3).

2) Unlawful arrest and detention:

• Information provided by the Turkish authorities (6/06/2007): In order to avoid any inconsistencies and contradictions that could lead to unjustified arrests and custody, a number of regulations have been enacted in recent years, including:

- Programme on Restriction Measures and Wanted Persons (Tahdit ve Aranan Sahıslar Programı) dated 1999;

- Summoning (Davetiye) dated 2000;

- Programme on Wanted Persons (Aranan Sahıslar Programı) dated 2003;

- Registration GBT (Kayıt GBT) dated 2004;

- Updating Information on Wanted Persons (Aranan Sahıs Bilgilerinin Güncellenmesi) dated 2006; and finally

- Regulation on the Principles regarding registration and follow-up of Wanted Persons (Aranan Sahısların Projesine Kayıt ve Takibine Ilişkin Esaslar) dated 2006.

These regulations will allow a regular update of the police data and prevent unjustified arrests. In addition, with the computerisation of the entire database of the security services, maintenance and transmission of information is faster and more reliable.

The Turkish authorities have also explained that the new Code of Criminal Procedure (in force since 2005) had provided a right to compensation for those arrested without a valid reason (Articles 141, 142, 143 and 144 of Chapter 7 entitled “Indemnity due to Protection Measures”)

Regarding the failure to protect the applicant’s mother's children, the authorities have referred to the applicable legal framework. According to the Law on Social Affairs and the Institution for the Protection of Children (Law No. 2828), if their family members are not able to take care of arrested parents' children, they shall be taken and looked after by the institution mentioned. Furthermore, the Act on the Protection of Children (Law No. 5395) which entered in force in 2005, considers the children of arrested parents as “children in need of protection” and necessary legal steps are taken concerning those children under the provisions of that law.

Finally, the Court's judgment has been translated and distributed to the Ministry of Justice, Ministry of the Interior, the High Courts as well as the Prosecutor's Office attached to the Court of Cassation. A translation is accessible at <http://www.inhak-bb.adalet.gov.tr/aihm/karar/onervedigerleri>

11449/02          Tavlı, judgment of 09/11/2006, final on 09/02/2007, rectified on 25/01/2007

The case concerns the refusal by domestic courts of the applicant’s retrial request concerning an earlier decision on rejection of paternity. The applicant’s first request of paternity was rejected in 1982 in view of a medical report and on the ground that the child was born in wedlock. Relying on the findings of a DNA test done in 1997, the applicant requested a retrial in his action for rejection of paternity. However, his application was rejected on the ground that the conditions for retrial had not been fulfilled in accordance with Article 445§1 of the Code of Civil Procedure, which provides that the newly obtained evidence must have been existent at the time of the proceedings and must have been inaccessible due to force majeure for retrial to be granted on the basis of new evidence. According to the interpretation given by domestic courts, “scientific progress” could not be considered as force majeure within the meaning of that article.

The European Court considered that by rejecting the applicant’s claim for paternity the domestic courts failed to strike a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of biological evidence. According to the Court, domestic courts should interpret existing legislation in the light of scientific progress and the social repercussions that follow (violation of Article 8).

Individual measures: Article 445§11 of the Code of Civil Procedure appears to allow the reopening of cases following a judgment of the European Court finding a violation.

• Information is awaited on possibilities of reopening the case, if the applicant so wishes.

General measures: At the outset the publication and dissemination of the judgment of the European Court, in particular to the Court of Cassation, appears necessary.

• Information is also awaited on measures taken or envisaged by the Turkish authorities to ensure that the relevant provision of the Code of Civil Procedure is applied in accordance with the Court’s conclusion in this case.

74552/01          Ataman Oya, judgment of 05/12/2006, final on 05/03/2007

The case concerns a violation of freedom of assembly in that in 2000 the authorities used force to break up, an illegal 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).

Individual measures: Given the circumstances of the case, no individual measure seems necessary.

General measures:

• Information is awaited on 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.

24632/02          Ünsal, judgment of 20/02/2007, final on 20/05/2007

The case concerns the unfairness of criminal proceedings brought against the applicant in 2000. The applicant was detained in one city but tried in another, so that his testimony and defence submissions were taken (through judicial co-operation) by a criminal court in the city where he was detained. Although his lawyer was present at the hearings before the court that tried and eventually convicted him, he was never summoned to attend those hearings.

The European Court found that in such “indirect hearings” or the presence of counsel in the hearings could not be a substitute for the personal presence of the accused (violation of Article 6§§1 and 3(c)).

Individual measures: The Court noted that where a person had been convicted in proceedings which were contrary to Article 6, a new trial or reopening of the proceedings, at the applicant’s request, was, in principle, an appropriate means of redressing the violation found.

• Information is therefore awaited on the possibility of a retrial or reopening of the proceedings.

It may also be noted that the applicant was initially sentenced in 2001 to 12 years and six months’ imprisonment, which was later halved. It appears from the judgment that he currently resides in Ankara, no longer in prison, although the European court’s judgment gives no indication as to when and on what terms he was released.

• Clarification is therefore awaited on the current situation of the applicant.

General measures:

• Information is awaited on measures taken or envisaged by the Turkish authorities to avoid convictions in the absence of the accused, in particular on the current situation following the adoption of the new Code of Criminal Procedure.

• Information is also awaited regarding the publication and dissemination of the judgment of the Court to the judicial authorities.

The Secretariat will send an initial phase letter to the Turkish authorities.

70830/01          Ern Makina Sanayi ve Ticaret A.Ş, judgment of 03/05/2007, final on 03/08/2007[204]

The case concerns the violation of the applicant company's right to a fair hearing. The applicant complained that it had been unable to take part (as respondent) in enforcement proceedings of a foreign arbitral award given against it because the Turkish courts had sent the notification to its former registered office. It later transpired that the mistake had been caused by the commercial registry, which had misplaced the applicant company's file containing its current business address. However, the Court of Cassation denied the applicant's appeal, filed at a time when the court's decision granting exequatur had become final.

The European Court held that the Court of Cassation's refusal to take account of the failure by the commercial registry gave rise to a violation of the right of access to a court (violation of Article 6).

Individual measures: Article 445§11 of the Code of Civil Procedure appears to allow the reopening of cases following a judgment of the European Court finding a violation.

• Information is awaited on possibilities of reopening the case, if the applicant so wishes.

General measures: The violation in this case stemmed from the Court of Cassation's refusal of the applicant's attempt to become a party to the proceedings.

• Information is therefore awaited on the measures taken or envisaged by the Turkish authorities for the prevention of similar violations, including the publication and dissemination of the Court's judgment to the judicial authorities.

- Cases concerning the lack of compensation following annulment of title to a plot 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[205]

36166/02+        Asfuroğlu and others, judgment of 27/03/2007, final on 09/07/2007[206]

35973/02+        Aslan and Özsoy, judgment of 30/01/2007, final on 30/04/2007

1262/02            Doğrusöz and Aslan, judgment of 30/05/2006, final on 23/10/2006

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[207]

18367/04          Taci and Eroğlu, judgment of 10/05/2007, final on 10/08/2007[208]

1250/02 Tuncay, judgment of 12/12/2006, final on 23/05/2007

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.

• Information is awaited on the progress of the adoption of the draft law and on its contents. 

                       - Cases concerning the monitoring of prisoners’ correspondence

6289/02            Tamer Fazıl Ahmet, judgment of 05/12/2006, final on 05/03/2007

77097/01          Ekinci and Akalın, judgment of 30/01/2007, final on 30/04/2007

73520/01          Kepeneklioğlu, judgment of 23/01/2007, final on 23/04/2007

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 two cases, the prison authorities similarly withheld or monitored the applicants’ letters to their lawyers.

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 judgment that the applicants are no longer in prison. Accordingly, no individual measure is necessary.

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.

- 225 cases against Ukraine

11901/02          Panteleyenko, judgment of 29/06/2006, final on 12/02/2007

The case concerns first, the violation of the applicant's right to respect for his home life 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 Commercial 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 of private information concerning his mental health in the course of defamation proceedings he brought before the Novozavodsky Court. 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 Novozavodsky 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 before the Desniansky 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. The European Court considered that the language employed by the Desniansky Court, as well as the reasons given (which were upheld at appeal), combined with the 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 the 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 life, 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 and non-pecuniary damage sustained.

On 02/03/2007, the Ukrainian authorities informed the applicant by letter of possibility of applying for review of the proceedings. As of 26/09/2007, the applicant had lodged no application for such revision.

General measures:

1) Violation of Article 8

a) Violation of the right to respect for home life:  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 Court’s conclusions concerning the violation of the applicant’s right to respect for his home life. 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 Court’s 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 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 awaited on the further training of judges (especially in lower courts) in the field of confidential, personal data protection, and on the improvements of such training envisaged by the competent institutions, such as Regional Centre for Judicial Studies.

2) Violation of the presumption of innocence (Article 6§2)

▪ Information is awaited on an action plan with timetable and projected measures to increase awareness of courts at all levels of their obligation to respect the principle of presumption of innocence, in accordance with the Court's case-law.

3) Violations of Article 13

▪ Information is awaited on an action plan with timetable and projected measures to amend the law to introduce an effective remedy to challenging the lawfulness of searches and to prevent or put an end to the disclosure of confidential psychiatric data in court case files and obtain compensation if appropriate.

            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 attention of the Supreme Court of Ukraine and its judges was drawn to the European Court’s conclusions in the present case. 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.

33949/02          Belukha, judgment of 09/11/2006, final on 09/02/2007

The case concerns a violation of the applicant's right to an impartial tribunal in that in 1997 the President of the Artemivsk Court, who sat alone as first-instance judge in the applicant's case, and whose decision was upheld by the higher courts, asked for and received free of charge certain products from the company which was the applicant's adversary (violation of Article 6§1).

The European Court noted that in such circumstances the applicant's fears that the President lacked impartiality could be held to be objectively justified (§54 of judgment).

Individual measures: The European Court stated that finding a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. On 12/03/2007, the government of Ukraine wrote to the applicant informing her of the possibility provided by the law in force to apply under exceptional circumstances for review of the proceedings at issue. On 31/05/2007 the applicant lodged an application for reopening with the Supreme Court which on 25/07/2007, set aside the application to give applicant more time to rectify defects in the application, until 30/07/2007. The Supreme Court set aside the application once again and granted the applicant further time to rectify the defects, until 25/10/2007.

General measures:

• Information provided by the Ukrainian authorities:  Regarding the impartiality of courts, a comprehensive draft for legislative reform is under way. This programme is being followed in the Salov case (Section 5.1) in the context of criminal proceedings. In particular, the authorities provided information on the following developments:

(i)  Parliament decided to merge the draft Law on the Judiciary and draft Law on the Status of Judges into a single law as suggested by the Venice Commission (www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=401).

(ii) The draft Law on Temporary Order of Financing of Judiciary in Ukraine (registration No. 0902 of 25/05/2006) was approved at first reading by Parliament to improve the financing of the judiciary.

(iii) The draft law on Court Fees (registration No. 2378 of 19/10/2006), which replaces fees payable to the state by court fees, was approved at first reading.

(iv) The government approved the State Programme for Provision of Courts with Appropriate Premises for 2006‑2010.

The judgment has been translated into Ukrainian. A summary of the Court's judgment in Ukrainian was published in the Government Currier, No. 48 of 17/03/2007. By letter of 12/03/2007, the attention of the Supreme Court was drawn to the European Court's conclusions so that Ukrainian courts may make use of them.

23543/02           Volokhy, judgment of 02/11/2006, final on 02/02/2007

The case concerns the violation of the applicants' right to respect for their correspondence in that in 1997 an order for interception and seizure of their postal and telegraphic correspondence  was issued, when the two applicants' son and brother respectively  who was under investigation for tax evasion, failed to appear for interrogation at the police station.

The European Court found that the 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 (see §54 of the judgment) (violation of Article 8).

The case concerns also the lack of effective domestic remedies to seek redress for the unlawful interference with the applicants' correspondence (violation of Article 13).

Individual measures: The interception order was cancelled on 28/05/1999. The European Court awarded just satisfaction on account of the non-pecuniary damage suffered by both applicants.

The first applicant having died in the meantime, the government informed the second applicant by letter of 12/03/2007 of the possibility to apply for reopening of the proceedings. The second applicant did apply to the Supreme Court for reopening of the proceedings. On 09/01/2007 the Supreme Court decided to admit the second applicant’s request and reopen the proceedings.

On 25/05/2007, the Supreme Court, partly recognising the second applicant’s claim, quashed the judgment of the Leninskiy District Court of 11/10/2001, the decision of the Court of Appeal of Poltava Region of 08/01/2002 and decision of the Panel of Judges in Civil Cases of the Supreme Court of 09/02/2004 concerning the compensation of non-pecuniary damage caused by ordering the interception of their correspondence. The Supreme Court remitted the case for fresh consideration to the court of first instance.

General measures:

1) Violation of Article 8: Article 187 of the Code of Criminal Procedure concerning the interception of correspondence was substantially reworded in June 2001, i.e. after the events in this case. The provision determines the ground and the procedure for interception of correspondence, clarifying the scope and conditions of exercise of the authorities’ power in this respect.

2) Violation of Article 13: The authorities also announced 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.

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. 23 of 10/04/2007. A summary of the Court's judgment in Ukrainian was published in the Government's Currier, No. 48 of 17/03/2007. By letter of 28/04/2007, the attention of the Supreme Court of Ukraine was drawn to the European Court's conclusion. By letters of 28/04/2007, the attention of the Ministry of Internal Affairs, General Prosecutor's Office, State Security Service and the State Tax Administration was drawn to the European Court's conclusions.  In the information supplied on 31/10/2007, authorities further indicated that the Supreme Court had sent out letters concerning the European Court’s conclusions in the present case to the Heads of Courts of Appeal. The Office of the Prosecutor General had ordered the Ministry of the Interior to dissemination the judgment among investigators, to prevent further similar violations. Finally, the local investigation departments of the State Tax Administration have been ordered to provide training dealing with the European Court’s conclusions in the present case and with the Convention in general.

• The Secretariat is assessing whether the rules currently in force meet the Convention requirements and will contribute to prevent new similar violations.

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 at the time of the European Court's 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 European Court's jurisdiction ratione temporis) (violation of Article 2 of Protocol No. 4). The European Court noted that its mere duration could be sufficient to conclude that it was disproportionate, the more so given that it occurred in the context of the applicant's prosecution for a moderately serious offence, and that the charges against him had already become time-barred in September 2000, whilst the restriction was imposed on him until May 2006

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 (992nd meeting, April 2007, 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. Therefore it seems that this violation occurred rather as the result of the excessive length of the criminal proceedings.

• Information is expected on measures taken or envisaged in order to avoid any future similar violations and on current practice related to the imposition of the obligation not to abscond.

The judgment of the European Court has been translated into Ukrainian and placed on the Ministry of Justice’s official website. It has also been 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. By letter of 28/04/2007, the attention of the Supreme Court was drawn to the European Court’s conclusions in the present case. Likewise, by letters of 28/04/2007 the attention of the bodies authorised to conduct investigations, namely the Ministry of Interior, the Office of the General Prosecutor, the State Security Service and the State Tax Administration was drawn to the European Court’s conclusions in the present case.

63134/00          Kechko, judgment of 08/11/2005, final on 08/02/2006

This case concerns the violation of the applicant's right to the peaceful enjoyment of his possessions by the domestic courts in proceedings he brought in April 1999 concerning his entitlement to benefits, provided under the Education Act 1996, for the period between 1/01 and 23/06/1999. While the applicant, a teacher, satisfied the objective criteria set forth by the law, the domestic courts rejected his claim on the ground that these provisions had been suspended by the Secondary Education Act adopted in May 1999.

The European Court noted that this only entered into only on 23/06/1999 and contained no retroactive provision. The authorities' denial concerning the period at issue was therefore arbitrary and not based on the law (violation of Article 1 of Protocol No. 1).

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

General measures:

• Information is awaited on the situation of persons in a position similar to that of the applicant. It would be useful to receive information on the payment of other types of benefits based on more subjective criteria (such as performance assessment) provided for by the Law of 1996 and suspended for budgetary reasons. The European Court recalled in this respect that a lack of funds was not an excuse for a State not to honour its obligations (§26 of the judgment).

• Information is also requested concerning the publication of the European Court's judgment and its dissemination, possibly through a circular letter, to all courts and competent authorities, in particular the Ministry of Education, with a view to drawing the attention of its local offices to their responsibility under the Convention, so as to prevent new, similar violations.

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

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

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

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

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

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

• Information provided by the Ukrainian authorities (25/07/2007): Criminal proceedings against four Interior Ministry officers are being considered on the merits by the Kyiv Court of Appeal. The Office of the Prosecutor General was investigating other alleged perpetrators and, following an offer of assistance from  Parliamentary Assembly of the Council of Europe, the Prosecutor General had asked the Assembly to select a group experts to help with the analysis of certain audio recordings.

• Information is awaited on the progress and outcome of the proceedings and the investigation, in particular the results of the examination of the recordings.

General measures: It appears that the violations were due to the particular political context in Ukraine at the material time.

On 16/01/2007 the Ukrainian authorities provided information on the rules governing investigation procedures, in particular with regard to the independence of investigators, the promptness of investigation and the right of the aggrieved party to adequate access to the file during the investigation.

1) Independence of investigation:In response to numerous encouragements by the Parliamentary Assembly to reform the public prosecution system in Ukraine (see most recently, Recommendation 1722(2005), §2.4.3), the President of Ukraine issued Decree No. 39 of 20/01/2006, approving the “Action Plan for honouring by Ukraine of its obligations and commitments to the Council of Europe”. This document proposed among other things a draft Constitutional amendment and a draft law on the public prosecution service (§ 6). Both drafts were submitted to the Venice Commission which, in its opinion (see document CDL(2004)060) stated that the draft law did not provide adequate guarantees for the independence of the prosecution service, which appeared still to be too much associated with the executive branch. The Commission also considered that the draft did not comply with the terms of Committee of Ministers’ Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system.

As regards the proposed amendment to the Constitution, the Venice Commission welcomed the draft as an important step in the right direction, in particular, in making the Prosecutor General’s Office more independent from political pressure, defining the public prosecution service as part of the judicial power and better protecting the Prosecutor General against unjustified dismissal. The Venice Commission stressed that, to ensure the independence of the Prosecutor General, he or she must be appointed by independent means, the grounds for dismissal must be set out in the Constitution, the office should be opened to qualified persons with experience outside the prosecution service and the Prosecutor General should be appointed for a single term only.

• Information is awaited: on progress in adopting these drafts.

2) Remedies against the excessive length of investigations: In the context of the examination of the Merit case (1007th meeting, October 2007, Section 4.2), the Ukrainian authorities transmitted to the Secretariat a draft law on pre-trial and trial procedures and enforcement of judgments within reasonable time. This draft proposes a new remedy, making it possible to apply to a higher court to order particular procedural actions within a certain time-limit and/or award compensation for delays. Such compensation could be for an amount up the equivalent of fifteen times the minimum wage. The draft also specifies that such a decision should be dispatched to the competent authority in order to decide on disciplinary action against the persons responsible for the delay. The draft has been submitted to the Cabinet and should be considered by Parliament by the end of this year.

• Information is awaited: on the adoption of this draft law.

3) Access to the file during the investigation: According to the Ukrainian law, an aggrieved party, a civil plaintiff or a civil defendant may be granted full access to the case files only once the pre-trial investigation is completed.

• Information is awaited: on measures taken or envisaged in this respect.

            4) Publication and dissemination: The judgment of the European Court has been translated and published.

• Information is awaited concerning the dissemination of the judgment.

38722/02          Afanasyev, judgment of 05/04/2005, final on 05/07/2005

The case concerns the inhuman and degrading treatment inflicted on the applicant while in custody in March 2000 at a district police station in Kharkiv, where he was allegedly beaten by police officers in order to obtain a confession. A subsequent medical examination confirmed that the injuries had been sustained during the period of the applicant's detention violation of Article 3).

The case also concerns a violation of the right to an effective remedy following the serious shortcomings of the investigation, such as the one-year delay before opening it, the late interrogation of witnesses, and the fact that certain witnesses were not called. The Court also found that any claim for compensation would have been futile without criminal proceedings to establish the facts and identify the perpetrators (violation of Article 13).

Individual measures: The domestic courts have twice remitted the case for additional examination. The criminal proceedings against the police officers, identified by the applicant, were again discontinued on 30/03/2004, while another investigation concerning the bodily harm is still pending because the offender has not yet been found. On 31/05/2006 the prosecution office discontinued the investigation concerning the applicant's complains due to lack of corpus delicti. On 11/07/2006 this decision was quashed and the case was transmitted to Charkov Public Prosecutor for further investigation. The investigation is pending. In the meantime, the investigation identified another 9 people who were held with the applicant in the cell and the investigative authority is taking measures to establish their whereabouts. The pre-trial investigation began again on 13/07/2007. The authorities informed the Committee of Ministers on 31/10/2007 that disciplinary proceedings had been instituted against the investigation officers responsible the prolonged delay in disclosing the offences.

• Details are awaited on the progress of the investigation and the disciplinary proceedings.

General measures:

            1) Important problems to be resolved: The problem of the authorities' failure to conduct an effective investigation into alleged ill-treatment in a prison has been raised within the Committee of Ministers in the context of Poltoratskiy and Kuznetsov cases. The Afanasyev case concerns a problem in the context of police custody.

The authorities informed the Committee of Ministers on 31/10/2007 of the existence of a number of statutory provisions to guarantee the rights of detainees, including Articles 8, 29 and 55 of the Constitution, Article 127 of the Criminal Code, Article 5 of the Law on the Police, Article 110 of the Code of Criminal Procedure, Article 12 of the Law on Prosecution Offices, and Article 14 of the Law on Operative and Investigative Activity.

• An action plan is awaited on comprehensive measures to combat abuses in police custody.

Given the nature and complexity of the issues involved, the Secretariat is preparing a memorandum summarising the experience of the other countries in this field in order to allow the Ukrainian authorities to deal in greater depth with the issues raised by the present judgment.

            2) Measures taken by the Ukrainian authorities: On 25/12/2005, the Public Council on Ensuring Human Rights, a body attached to the Ministry of Internal Affairs, was created. The activities of the council encompass three strategic directions: (a) observance of the civil and political rights; (b) guaranteeing human rights while in detention or during the inquiry; (c) securing the rights of the internal affairs staff. The authorities further informed the Committee of Ministers on 31/10/2007 that the Council has a 32-strong staff and, as of October 2007 created public councils for respect of human rights at regional level. In addition, the Ministry of Internal Affairs drew attention of the regional heads to the obligation to co-operate with the Council and its regional divisions. Mobile human rights compliance monitoring groups are organised with the participation of members of the Ministry of Internal Affairs and community representatives. Such groups have made 35 joint visits to detention centres in 11 regions. Since its foundation, the Public Council has held 6 meetings and have launched pilot projects in the province.

            3) Publication and dissemination: The judgment of the European Court was translated into Ukrainian and published in a specialised quarterly journal, Case-Law of the European Court of Human Rights. Judgments. Comments, together with comments of the Government Agent relating to its interpretation and application in legal proceedings. The journal is distributed to all courts and other relevant authorities. It was also placed on the website of the Ministry of Justice.

The problems highlighted in the Afanasyev case have been raised during training for judges and law-enforcement bodies organised by the Office of the Government Agent and NGOs and at the Academy of Prosecution of Ukraine.

- 218 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments

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

                       CM/Inf/DH(2007)30 (revised in English only) and CM/Inf/DH(2007)33

All these cases concern violations of the applicants' right to effective judicial protection due to the administration's failure or substantial delay in abiding by final judicial decisions in the applicants' favour (violations of Article 6§1).

In some of these cases the European Court also found consequent violations of the applicants' right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1) and/or violations of Article 13 due to the lack of an effective remedy allowing redress for damage created by delays in enforcement.

Individual measures: Urgent measures are necessary to ensure enforcement of the domestic judgments in the cases where this has not yet been done. It is noted as well that the new amendment to the Law on Enforcement Proceedings entered into force on 14/03/2007. The amendment adopted provides for closure of domestic enforcement proceedings once a national court decision has been enforced in implementation of the European Court’s judgment (amendments to Article 37).

• Information is required on the outstanding individual measures.

General measures:

a) Law on Pre-Trial and Trial Proceedings as well as Enforcement of Court Decisions within Reasonable Time:

Following to a decision taken by the working group in charge, the 2005 draft law on pre-trial proceedings as well as enforcement of court decisions within reasonable time was modified and renamed  “on amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time)”. The modified draft envisages amendments to the Code of Administrative Procedure and the Law on the Status of Judges and provides a new remedy making it possible to apply to the administrative court with a claim about violation of the right to proceedings within reasonable time. It includes compensation for delays and sanctions against those responsible.

The amended version was submitted to the Government of Ukraine in February 2007. In addition to this special draft law, amendments are as well under way with regard to the Administrative Offences Code and the Customs Code.

• Assessment: Pending the adoption of the above draft law and amendments, 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. Guidance by the Supreme Court to lower courts would be useful in this respect.

• Information is awaited on the time-table envisaged for the adoption of the draft law and amendments, possibly with a copy of the last modified version thereof, as well as on possibility for the Supreme Court to issue an interim guidance in this respect pending the adoption of the draft law.

b) Amendments to the Bankruptcy and Moratorium Laws and problems with attachment of the budgetary funds.

Given the fact that in a large number of these judgments the violations occurred in relation with bankruptcy proceedings, which interfered with the enforcement of judgments ordering the payment of salary arrears, the Ukrainian authorities are finalising draft amendments to the Bankruptcy Law. In particular, the draft amendment to the Bankruptcy Law envisages abolishing the present moratorium with regard to the salary arrears under execution writs as well as with regard to certain other payments.

On 23/05/2007 the draft law abolishing the moratorium on the forced sale of property in companies has been submitted to the Government for consideration. It is noted that at present it is impossible to attach proprety of any company where the state holdings exceed 25%.

• Information is awaited on the timetable envisaged for adoption of amendments to the Bankruptcy and Moratorium Laws.

Further, pursuant to the Enforcement Act,  the Government was in charge since 2003 to regulate attachment on budgetary funds, which should be executed by the State Budget. However, the Government failed to adopt the appropriate secondary legislation. For this reason, the State Execution Services continued to  deal with enforcement of the judgments rendered against the state. Further, pursuant to the Budgetary Code it is  impossible to attach any state funds on the account of some budgetary beneficiary if they are not intended for the specific purpose of satisfying a particular court award. Also, the situations occur where a number of applicants are willing to attach the funds of a particular state entity when there are funds for some of them but not for all.

In such situation, the State Budget writes off the funds from a special account and deem the respective court decision satisfied and make a note thereon on the writ of execution. However, the Enforcement Act provided for order of satisfying claims and state enforcement agents very often must direct those funds for satisfaction of the prior writs of executions and not for those written of by the State Budget.

• Information required on action taken or envisaged to avoid any legislative lacuna and confusion in this area.

The authorities informed the Committee of Ministers at its 1007th meeting (October 2007) that the Government submitted  draft law amending various legislative acts relating to enforcement procedures.

• Information is further required on the progress of the above draft law.

            c) Inappropriate enforcement procedures. Procedural deadlines in the Enforcement Act, provide the debtors in practice with sufficient time to hide their funds and they often do so.

• Information required on action taken or envisaged to possibly change the legislation in this area to prevent future underlying violations.

d) Enhancing criminal, material and other responsibility: A number of criminal proceedings have been opened against the top management of companies willfully delaying the payment of salaries or against officials involved in the execution procedures.

• Information is required on the outcome of the criminal proceedings concerned.

e) Sector-specific measures: A number of sector-specific measures are taken or are underway in education sector, state mining sector, Atomspetsbud and other state companies. The particularly pressing problem remain to be resolved in the Atomspetsbud company, which had carried out construction works within the Chernobyl zone and thus had its assets contaminated. Due to unacceptable radiation level, it is prohibited under Ukrainian law to attach any such property. Also, the problem still persist in state mining companies under administration, bankruptcy or liquidation. Further, since 25/12/2005 the special legislation imposed a moratorium on seizure and attachment of funds pertaining to the fuel and energy companies, the registration of such companies with the special register established by the Ministry of Fuel and Energy is implemented.

• Latest information provided by the authorities: The authorities informed the Committee of Ministers at its 1007th meeting (October 2007) that the parliamentary committee in charge currently considers draft law whereby the whole amount of debts owed to Atomspetsbud employees totalling to roughly 1 million Euro will be appropriated in the 2008 State Budget. 

• Detailed information is awaited on measures taken or envisaged to remedy special sector-specific problems in enforcement of court judgments awarding pay and/or work-related benefits, in particular in the case of Atomspetsbud and state mining companies. Also, the information is awaited on the moratorium imposed on attachment of funds pertaining to the fuel and energy companies.

f) Memorandum on the non-enforcement of domestic judicial decisions in Ukraine (CM/Inf/DH(2007)30-rev)

This document was prepared by the Secretariat to assist the Committee of Ministers and the Ukrainian authorities in reflection on the underlying problems. The Memorandum was issued and declassified at the 997th meeting (June 2007). It revealed several important structural problems requiring urgent solution and proposed possible avenues to resolve the problems, including based on comparable experience of other countries.

▪ Information is awaited on specific issues raised in the Memorandum.

            g) Multilateral Round Table in Strasbourg:

On 21 and 22 June 2007 a high-level Round Table was organised in Strasbourg by the Department for the Execution of Judgments of the European Court of Human Rights in the context of the Execution Assistance programme, which involved representatives of the Council of Europe and the authorities of different states confronted with this issue, to discuss solutions to the structural problems of non-enforcement of domestic court decisions. The constructive exchanges between different participants led to the adoption of Conclusions in which the main problems underlying non-enforcement were identified and a range of possible solutions to be envisaged by the authorities while elaborating their respective action plans were proposed. These Conclusions may be found on the following web site

http://www.coe.int/t/e/human_rights/execution/ConclusionsRoundTableRussiaJune07.doc.

• Information is awaited on the follow up given by the Ukrainian authorities to the Conclusions of the Round Table.

- 7 cases against the United Kingdom

36256/97          Thompson, judgment of 15/06/2004, final on 15/09/2004

41534/98          Bell, judgment of 16/01/2007, final on 16/04/2007

The Thompson case concerns the detention, summary trial and conviction in 1997 of the applicant by his Commanding Officer in the Army for absence without leave, in proceedings conducted on the basis of the law applicable prior to the coming into force of the Armed Forces Act 1996.

The Bell case concerns the summary trial and conviction in 1997 of the applicant by his Commanding Officer for using insubordinate language to a superior, in proceedings conducted on the basis of the law applicable after the Armed Forces Act 1996 came into effect on 01/04/1997.

The European Court found that Mr Thompson’s doubts as to the impartiality of his Commanding Officer in deciding on the necessity of his pre-trial detention were justified, as the commanding officer was liable to play a central role in the prosecution and was also responsible for discipline and order in his command. For these reasons, he could not be regarded as independent of the parties to the proceedings (violation of Article 5§3). In addition, Mr Thompson had been unable to obtain compensation under domestic law for his detention in breach of the Convention, since his detention was lawful under domestic law (violation of Article 5§5).

The Court found that, in both cases since the commanding officer was central to the prosecution of the charge and was also the sole judge, the applicants had not had a fair hearing by an independent and impartial tribunal (violations of Article 6§1). In this respect the Court emphasised that, in electing a summary trial rather than a court-martial, the applicants could not be considered to have waived their relevant Convention rights.

Finally, the exclusion of legal representation from the applicants’ summary trial did not meet the Convention requirement that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (violations of Article 6§3c).

Individual measures: Mr Thompson pleaded guilty and was released after serving 28 days’ military detention. Other proceedings against him were discontinued. M. Bell pleaded not guilty and was sentenced to seven days’ detention. He served his sentence.

• Assessment: It appears that no further individual measure is necessary.

General measures: The judgment was published in the European Human Rights Reports at (2005) 40 EHRR 11.

            1) Violation of Article 5§3: The case presents similarities to that of Hood (judgment of 18/02/99), which was closed by Resolution ResDH(2000)82 on the basis, inter alia, of the new guarantees introduced by regulations 20-24 of the Investigation and Summary Dealing (Army) Regulations 1997 in respect of detention decided by a commanding officer. On 09/01/2006, the United Kingdom authorities provided further information on significant changes in the army custody rules, which came into effect in 2000. They provide further protection for persons detained before and after being charged.

            2) Violation of Article 5§5: the case presents similarities to that of O'Hara (judgment of 16/10/01), section 6.2.) The measures adopted may be summarised as follows: under Section 6(1) of the Human Rights Act (HRA), it is unlawful for a public authority to act in a way incompatible with a Convention right. Under Section 8 of the HRA, if a court finds that such an unlawful act has occurred, it may award damages.

            3) Violations of Article 6§1 and 6§3c:

These would appear to raise certain new issues that have not been dealt with in previous military cases, which concerned courts-martial and not summary proceedings. In response to the letter sent to the United Kingdom delegation with a view to drawing up a possible plan of action for the execution of this judgment in these respects, the United Kingdom authorities forwarded a detailed response on 06/04/2005, referring in particular to changes introduced by the Armed Forces Discipline Act 2000, which came into force on 02/10/2000.

As to Article 6§1, the changes include:

- limiting the punishment available to a court-martial to that available to a commanding officer at a summary hearing;

- prohibition of any amendment, substitution or additional charge by the prosecutor once court martial has been elected without the written consent of the accused or referral of the new charge back to the commanding officer to begin the process again;

- the opportunity to elect court-martial will be offered to the accused before the commanding officer deals summarily with the charges (and only offers an election where he considers the accused guilty);

and there is now a right to appeal from summary hearing to the Summary Appeal Court (SAC).

• Further information furnished by the authorities of the United Kingdom:

-They indicated that other safeguards are built into the system to ensure that the accused soldier is aware of his statutory rights and given every opportunity to exercise them.

-They pointed to the Baines case [2005] EWHC 1399 (Admin) (23/06/2005), in which the High Court found that a soldier does have a free and unrestrained right to elect for trial by court martial (§56).

-In that case the High Court noted that the “investigation” carried out by the Commanding Officer under Section 76 of the Army Act 1955 means consideration of the material arising from the investigation carried out by the service police so as to enable the CO to decide whether to dismiss the case without a hearing, whether to deal with it if he has jurisdiction to do so, or whether to refer it to a higher authority with a view to trial by court-martial (§29).

- As to Article 6§3: A soldier is entitled to legal representation and legal aid for appeal proceedings. He is also entitled to legal assistance for pre-custody hearings.

- An accused soldier is not entitled to legal representation at the summary hearing itself but he is entitled to seek legal advice at his own expense, including on the decision to elect.

- At the summary hearing, the soldier is entitled to the assistance of an “Accused’s Adviser”.

- In the UK, the names of firms in garrison towns are well known among soldiers, and these firms are regularly instructed by soldiers.

- Outside the UK, Army personnel may obtain legal advice free of charge from Royal Air Force lawyers.

• Bilateral contacts are under way with respect to these points.

• Information provided by the authorities of the United Kingdom is currently under assessment.

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: 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.

On 23/03/2005, in response to the judgment of the European Court, the Department of Health published a consultation document with a view to bringing forward proposals for appropriate safeguards. The preferred approach in the document was the one of “preventive care”, involving a new system of admission/detention procedures for persons who have to be deprived of their liberty so that care and treatment can be provided in their best interests. Under such a system, the power to deprive a person of liberty would be exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. It would incorporate guarantees such as requirements to specify the reason for deprivation of liberty, limits on the length of time, involvement of relatives, carers and advocates, provision for regular reviews and access to court for review of the lawfulness of detention.  In September 2005, consultations were under way between the Department of Health and other government departments and administrations, with a view to introducing legislation which would come into force in April 2007.

The Department of Health was also in contact with the Scottish Executive and the relevant department in Northern Ireland.

In addition, pending the implementation of legislation, 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 results of the consultations were as follows:

- In England and Wales, the government proposed to introduce a Mental Health Bill. This Bill was introduced on 16/11/2006 in the House of Lords. The Bill has completed its passage through the House of Lords and has passed through the first and second reading stages before the Commons, being is currently at the Committee stage, undergoing a detailed clause-by-clause examination.

- In Northern Ireland, the authorities are currently consulting on the last report following the Review of Mental Health and Learning Disability. The final report will be submitted to the Department of Health for Northern Ireland by the end of June 2007 for consideration. The Department will then publish its proposals for legislation.

- The Scottish Executive 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.

On 30/03/2007, the Scottish Executive issued the document: “Guidance for Local Authorities: Provision of Community Care Services to Adults With Incapacity”.

• Information is required: on progress made in the adoption of the legislative reforms announced in Northern Ireland as well as in England and Wales. As to Scotland, a copy of section 13 of the Social Work (Scotland) Act 1968 would be useful, as would a copy of the other sections of the 1968 Act referred to in the guidance.

• Information provided by the authorities of the United Kingdom is currently under assessment.

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, had been 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, of the nature or gravity of their offence or of their individual circumstances. The Court concluded that such a general restriction on a vitally important right had to be seen as falling outside the wide margin of appreciation allowed to contracting states in this field, and thus incompatible with the Convention.

Regarding the existence or not of any consensus among contracting states on the subject, the Court noted that there remained a minority of states in which a blanket restriction on the right of convicted prisoners to vote was imposed or in which there was no provision allowing prisoners to vote.

Individual measures: On 25/05/2004, the applicant was released from prison on licence. He may therefore vote.

General measures:

            1) The Action Plan: On 07/04/2006, the United Kingdom authorities supplied an action plan for the execution of this case. The UK authorities committed themselves to undertaking consultation to determine the measures required to implement the judgment (written ministerial declaration of 02/02/2006). A consultation paper setting out the principles, context and options should have been distributed and responses to that paper should be collected by September 2006. Between September 2006 and February 2007, analysis of those responses should take place, and if appropriate, further consultation should take place and the drafting of a second document containing the preferred option and detailed implementation issues. Further analysis should then take place, and if appropriate, the drafting and publication of another document might take place between March and June 2007. If legislation is chosen as the method of executing the judgment, then the drafting of legislation will commence at that time. Draft legislation would then be introduced from October 2007 onwards, its timing being subject to parliamentary business.

a) The First Consultation Paper: The consultation paper on “Voting Rights of Convicted Prisoners Detained within the United Kingdom” was published on 01/12/2006. It sets out, inter alia, a summary of the European Court’s judgment, the relevant international documents, the practice of the Council of Europe member states and the proposals that the government believes merit careful consideration:

            i) retaining the ban (the Consultation Paper notes that this is the preference of some people and the government but recalls the European court’s finding that retaining a blanket ban falls outside the margin of appreciation of contracting states; however, comments are invited on it);

            ii) enfranchising prisoners serving less than a specified term;

            iii) allowing those responsible for sentencing to decide; and

            iv) enfranchising all tariff-expired life sentence prisoners.

The paper does not set out full enfranchisement as a realistic option, as the government is opposed to it.  Proposals were also made specifically concerning prisoners found guilty of election offences and convicted offenders and non-offenders detained in mental hospitals.

            b) Information from civil society: It should be noted that on 03/04/2007, the Committee of Ministers received a communication from a non-governmental organisation, the AIRE Centre, under Rule 9. That communication notes that despite the government’s indication that it would engage in a proper debate, it states in the Consultation Paper that it remains wholly opposed to full enfranchisement. Although the Consultation Paper offers the option of retaining the blanket ban (and welcomed receiving the views of those who agree with this position), it excludes from consideration the possible option of abolishing disenfranchisement of prisoners altogether.

            c) The response of the UK authorities: The United Kingdom government recalls that the Consultation Paper did state that views on total disenfranchisement were welcome but nonetheless made it clear, as noted above, that retaining the total ban is outside the margin of appreciation given by the Convention, and is therefore not an actual proposal.  When expressing its belief that an offence serious enough to warrant a term in prison should entail a loss of voting rights while in prison, the government was simply repeating what its position was prior to and throughout the Court proceedings in this case. However, government recognises its obligation to comply with the judgment and has set out a range of options to achieve this. The United Kingdom government does not interpret the judgment as creating an obligation to enfranchise all prisoners, and has indicated its opposition to such an option, which is why it is omitted from the list of possible options for change in the consultation document. The government indicates that to amend UK law will require primary legislation, and that proposals and resulting draft legislation would be laid before, and thoroughly debated in, both Houses of Parliament.

            2) The revised Action Plan: A revised Action Plan has been furnished, which includes a revised timetable. If a second consultation period is required, it would take place from July to September 2007. If legislation is chosen as the method of executing the judgment, the introduction of draft legislation would take place from May 2008 onwards, with its timing being subject to parliamentary business.

The first stage of consultation ended on 07/03/2007, and analysis of the responses is under way. There has been no slippage from the revised plan.

On 25/10/2007, the authorities of the United Kingdom indicated that the government was still considering the responses to the Phase 1 Consultation paper.

• Additional information awaited: Information is required on a regular basis on the progress made in the consultation process and the follow-up to that process.

30668/96          Wilson and the National Union of Journalists, Palmer, Wyeth and the National Union of Rail, Maritime and Transport workers, Doolan and others, judgment of 02/07/02, final on 02/10/02

The case concerns the failure of the state in its positive obligation to secure the enjoyment of rights under Article 11, by permitting employers to use financial incentives to induce employees to surrender important union rights (violation of Article 11 as regards both the individual and the trade union applicants).

The individual applicants refused to sign new, individual contracts of employment offering a wage increase in return for renouncing the right to be represented by their trade unions. As a consequence their salaries fell below those of their colleagues who had signed individual contracts.

Individual measures: The European Court awarded each individual applicant a sum in respect of non pecuniary damage. The Court also awarded a sum to the applicant trade unions with respect to their own legal costs and expenses, as well as the individual applicants’ legal costs and expenses which had been paid for by the applicant trade unions.

General measures: 

• General measures adopted:

- The judgment of the European Court was published in the European Human Rights Reports at (2002) 35 EHRR 523; Industrial Relations Law Reports at [2002] IRLR 568; and appeared in The Times Law Reports on 05/07/2002.

- Following consultations by the Department of Trade and Industry in 2003, the Employment Relations Act 2004 was enacted on 16/09/2004. Part III of the Act, which came into force on 01/10/2004, deals with inducement and detriments in respect of membership of independent trade unions. It provides, inter alia, that workers have a right not to have an offer made to them for the sole or main purpose of inducing them to renounce union membership or activities. In the event that such an offer is made to a worker, the worker (or the former worker) may bring a complaint before an employment tribunal.

- The Act applies to “a worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer” (emphasis added). Thus, non-recognised unions may benefit from the protection afforded by these provisions. In addition, it is open to tribunals to apply the “sole or main purpose” test in a manner that is compatible with the present judgment, and at this stage there would appear to be no indication that they will fail to do so. 

• Additional information provided by the United Kingdom authorities: According to the government, the Court did not hold that the Article 11 right of the applicant unions to strive for the protection of their members’ interests was a right separate from and independent of the Article 11 right of their members to freedom to belong to a union for the protection of their interests. It further stated that the infringement of the right of the applicant unions simply resulted from and was consequential upon the infringement of the rights of their members. The government considered that to confer rights and remedies on members protected the Article 11 rights of the unions to which they belong.

• Bilateral contacts are under way concerning this issue.

• Information provided by the authorities of the United Kingdom is currently under assessment.

27229/95          Keenan, judgment of 03/04/01

The case concerns the inhuman and degrading treatment inflicted on the applicant's son in 1993 due to the conditions of his detention, in particular the belated imposition on him of a serious disciplinary punishment (including seven days' segregation and twenty-eight days added to his sentence, imposed just prior to his expected date of release), which was not compatible with the standard of treatment required in respect of a mentally ill person (violation of Article 3).

The case also concerns the absence of effective remedies enabling the applicant's son to contest the disciplinary sanctions to which he was subjected (violation of Article 13), as well as the lack of effective remedies available to the applicant herself, as she could not apply for compensation following her son's suicide, and nor was there an effective remedy available that would have established where responsibility lay for his death (violation of Article 13).

Individual measures: The European Court awarded the applicant just satisfaction for non-pecuniary damages in respect of her deceased son, and a sum for her own non-pecuniary damages.

General measures: The judgment of the European Court was published in European Human Rights Reports at (2001) 33 EHRR 38.

            1) Violation of Article 3: A revision of the Segregation Policy (Prison Service Order (PSO) 1700), which is followed by all prison establishments, was approved by directors in July 2003 and was implemented in establishments from 17/11/2003.

This revised policy lays down, in particular:

- a requirement that prison staff who work in the segregation unit are adequately trained in suicide prevention and mental-health awareness;

- a new safety algorithm to be followed with respect to all prisoners placed in segregation, to ensure that appropriate mental-health screening is carried out; and

- a segregation history sheet, which must be opened on all prisoners in segregation, to help alert staff to any changes in the prisoner’s behaviour pattern which could indicate that he or she is not coping with segregation.

- As already required by the new safety algorithm, a case conference must be held, involving the prison governor, relevant prison staff, nursing staff, a doctor and an outside psychiatrist, in all cases where the health-care team advises that there are medical reasons against segregation.

Finally, Statutory Instrument 2005 No. 3437 revised the Prison Rules 1999 to bring them into line with the new policy. Article 14, which amends Rule 58, lays down that before deciding whether to impose a punishment of cellular confinement, the governor, adjudicator or reviewer shall ask a registered medical practitioner or registered nurse whether there are any medical reasons why the punishment is unsuitable and shall take this advice into account when making a decision.

• Preliminary assessment by the United Kingdom authorities: The UK authorities have indicated that PSO 1700 and its underlying performance standard are undergoing the revision process that every policy document undergoes every 2-3 years. They are, however, satisfied that the review and implementation process adopted since the delivery of the judgment ensures that policy changes and amendments are implemented speedily throughout the prison system.

• Additional information provided by the United Kingdom authorities: The revision process has now become part of a wider review, examining the wider issues of, inter alia reducing the use of segregation, alternatives to segregation, and the management of prisoners with mental health needs. It is hoped that the report of that review will be available in autumn 2007.

• Additional information is expected on the progress made in the review.

            2) Violation of Article 13 (remedies to contest disciplinary sanctions): In February 2002, PSO 2510 established new complaints procedures for prisoners. It introduced a confidential box on all prison wings, where prisoners can both pick up a complaints form and post a completed complaints form. A response must usually be given within 3 week-days; for complaints concerning prison staff, the time-limit is 10 week-days.

(a) Remedies with respect to disciplinary sanctions imposed by independent adjudicators, in particular, additional days: As to the possibilities for prisoners effectively to challenge disciplinary sanctions imposed on them under the new procedures, the United Kingdom authorities pointed to the Prison Rules as amended in 2002 following the judgment of the European Court in the case of Ezeh and Connors.

They emphasised the relevance in particular of Rules 53A, 54(3), and 55A, dealing with the new adjudication procedures which apply whenever additional days should be awarded for the offence (if the prisoner is found guilty), and give the prisoner the right to legal representation. Statutory Instrument 2005 No. 869 amended the Prison Rules 1999 to provide for a review of a punishment imposed by an adjudicator. The review must be begun within 14 days of receipt of the request, and the reviewer may substitute another punishment or quash the punishment entirely. A prisoner requesting review must serve any additional days unless and until they are reduced.

The Adjudications Standard was revised in July 2002 to include the requirement for a fast-track system for urgent adjudication appeals to be available in all prisons. Requests for the review of punishments imposed by independent adjudicators (to whom the power to impose additional days has been transferred) are considered by the Senior District Judge or his deputy at Horseferry Road Magistrates’ Court, and should be faxed if urgent. The Senior District Judge considers such a request within 14 days.

• Additional information provided by the United Kingdom authorities: In cases of the kind mentioned above, the judge must deliver his decision within 14 days in urgent matters. It is more likely to be within 2 and 5 working days. Where an inmate is already serving additional days, the Courts Service processes the paperwork on the day and passes it to a reviewing judge for a decision. If the judge quashes or amends the disciplinary sanctions, the Courts Service will fax the decision to the prison and contact them by telephone. If the prisoner has a solicitor, the Courts Service will also telephone them, fax the decision, and advise that they should contact the prison to ensure arrangements for release are underway. If the judge confirms the disciplinary sanctions, the prison and the prisoner/solicitor are advised by post.

Assessment: It appears that a mechanism is available to prisoners enabling them to challenge effectively the disciplinary sanctions imposed on them by independent adjudicators.

(b) Remedies with respect to disciplinary sanctions imposed by governors, in particular, segregation: The Prison Discipline Manual was revised and reissued as PSO 2000, and came into force on 23/01/2006. It makes it mandatory for prisons to have a fast-track system available for urgent applications for the review of adjudications that have been heard by governors, such as when the prisoner is currently serving the punishment or is near to release. PSO 2000 instructs that in such cases, it may be necessary to fax the adjudication papers to the unit handling the request for review.

Any prisoner who receives a punishment of cellular confinement may submit a complaint to the Governor, which will be forwarded to the Briefing and Casework Unit in the Prison Service HQ for the Area Manager to decide whether to uphold or quash the finding or mitigate the punishment. If the prisoner is not satisfied, he may take the complaint to the Ombudsman, who may make a recommendation to the Director General of the Prison Service. The recommendation will normally be accepted, but it is not binding on the Prison Service and may on very rare occasions be rejected.

In addition, the Prisons and Probation Ombudsman now has jurisdiction to review disciplinary procedures and the merits of disciplinary hearings (although he cannot rehear disciplinary procedures). If the Ombudsman upholds such a complaint, the Prison Service may quash the adjudication.

• Information is awaited as to the amount of time taken between the submission of a complaint by the prisoner and the decision being rendered by the Area Manager.

- Some outstanding questions with regard to these measures will be followed up bilaterally. 

            3) Violation of Article 13 (remedy following the suicide of a prisoner):  Similar issues are currently being examined with respect to the case of Edwards (judgment of 14/03/2002) (Section 4.2).

• Information provided by the authorities of the United Kingdom is currently under assessment.

46477/99          Edwards Paul and Audrey, judgment of 14/03/02, final on 14/06/02

The case concerns a breach of the positive obligation imposed on the national authorities to protect the life of the applicants' son, who was killed while in custody by another detainee considered dangerous, who shared the same cell (November 1994). The failure of the agencies involved in the case (medical profession, police, prosecution and court) to pass on information about the second detainee to the prison authorities and the inadequate nature of the screening process on his arrival disclosed a breach of the state's positive obligation to protect the life of the applicants' son (violation of Article 2).

The case also concerns the ineffectiveness of the inquiry into the death of the applicants' son as it was not possible to oblige prison staff to give evidence and because the applicants were not sufficiently associated with the investigation procedure (violation of Article 2). Finally, it concerns the lack of an effective remedy in this respect (violation of Article 13).

Individual measures: The United Kingdom authorities have informed the Committee that the Prison Service has conducted a further investigation looking into the specific issues that still concerned the applicants. The terms of reference of the investigation, including 35 questions, were agreed with the applicants, who were also involved in its progress. The investigation was carried out by a senior governor, who reported to the applicants and the commissioning authorities. All current Prison Service employees who were asked to be interviewed agreed to do so.

All documentation within the control of the Prison Service was made available to the applicants at its conclusion and they attended a meeting with the investigator. A meeting with members of staff who could give first-hand evidence relating to three outstanding issues was organised and a follow-up meeting planned focusing on mentally ill offenders generally. 

The applicants indicated in October 2004 that three important issues remained outstanding following the Prison Service inquiry, which in their view had to be clarified to ensure accountability within the Prison Service and to prevent recurrences in future. They further noted that several key witnesses were not interviewed and that they had not been given an opportunity to cross-examine all relevant witnesses in detail, particularly as they did not meet all the prison officers involved and were not accompanied by a legal representative at the meeting. As a result, the Prison Service inquiry had in their view failed to resolve the two key faults identified in the original inquiry criticised by the Court in its judgment.

On 07/12/2004 the United Kingdom authorities indicated that the Prison Service investigation was not intended to meet the Article 2 requirements on its own but rather to fill the two specific gaps in the previous inquiry identified by European Court. They emphasised that the two prison officers who had declined to attend the earlier inquiry had willingly given oral evidence in the Prison Service investigation, that interview transcripts were made available to the applicants and that the latter had met and questioned directly the one officer whom the European Court had considered might have potentially significant evidence. The applicants had not only listed the questions that formed the terms of reference for the Prison Service investigation, but there had been a dialogue with the applicants and reports on progress throughout the investigation, including meetings, at one of which the applicants had met and questioned face-to-face four staff members who had had key roles. Accordingly, this investigation had in the authorities' view remedied the two problems the Court had identified in the original inquiry, which were due to the lack of power to compel witnesses at that inquiry and to the private character of the proceedings, from which the applicants had been excluded save when they were giving evidence.

In May 2005, the applicants reiterated their criticisms, mentioned above, of the Prison Service Inquiry.

• Bilateral contacts are under way concerning this matter.

General measures: The United Kingdom authorities have informed the Committee that the judgment of the European Court was disseminated to all the authorities concerned and published in the European Human Rights Reports at (2002) 35 EHRR 487.

            1) Substantive violation of Article 2: In their letter of 07/12/2004, the United Kingdom authorities referred to, and in their letter of 23/05/2005, provided clarifications on a series of measures taken to prevent similar deaths in future, in particular by improving the capacity of the relevant agencies to identify prisoners at risk and improving communication between agencies.

These measures include:

-           the Prisoner Escort Record, introduced in 2000; the new Suicide/Self-Harm Warning Form used throughout the prison estate since 12/01/2004;

-           a pilot study in early 2004 on police use of a variation of this form, leading to the adoption of the system by the police force participating in the pilot study and consideration of wider use of the form by other forces;

-           consideration being given on whether to use the Police National Computer to enable the police to identify persons who were a risk to themselves during earlier periods of detention: there are, however, serious concerns about information security and data protection;

-           measures providing that the details of the at-risk prisoners are shared with the Probation Service/Youth Offending Team, if appropriate;

-           the development of a new reception screening process showing improved detection rates for serious and immediate health problems;

-           the establishment of the national use in July 2002 of a cell-sharing risk assessment that must be completed for every new prisoner on the first night of reception before allocation to a cell and the subsequent review of that assessment taking into account murders at Leeds and Manchester prisons, as well as the proceedings in the Mubarek Inquiry;

-           a violence reduction strategy launched in May 2004.

Full details of these measures, as well as further information with respect to mental health in prisons, are available to interested delegations from the Secretariat.

• Further information provided by the United Kingdom authorities: The government is satisfied with the “Cell-Sharing Risk Assessment system” (CSRA) in place. They noted that the CSRA is an integral part of the “Violence Reduction Strategy” (VRS), which is currently being reviewed.

There is no plan to amend the CSRA process extensively.

However, following the recommendations made in the Zahid Mubarek Inquiry Report (published on 30/06/2006), it is proposed that it is amended to clarify/re-emphasise certain aspects of the process, including:

-                 to make it mandatory for prisoners who arrive on a wing without a copy of the CSRA form to be placed in a single cell until the form is found or a new one completed;

-           to remind staff that the CSRA review form must be used for reassessing any prisoner if there is a significant event that triggers concern;

-           to require the register of prisoners designated as high- and medium-risk; and

-           to ensure that every establishment has a violence reduction strategy in place, which makes clear to all staff their individual responsibilities in reducing violence and which must be robustly monitored and evaluated to measure progress, including using serious assaults as a baseline.

• Additional information is awaitedon whether the government will be taking any further measures in light of the Mubarek findings and recommendations relating to the prisoner escort record, reception screening process and flow of information.

            2) Procedural violation of Article 2 and the violation of Article 13: 

• Information provided by the authorities:

a)The Crown Prosecution Service: The authorities referred to a July 2003 report of the Attorney General on the role and practices of the Crown Prosecution Service (CPS) in cases arising from deaths in custody. The United Kingdom authorities have stated that some of the measures announced in July 2003 to improve the CPS's handling of deaths in custody are now in place and others are under way.

                   b) the Prisons and Probation Ombudsman: On 27/09/2004, the United Kingdom authorities indicated that responsibility for investigations into deaths in prison custody had been transferred on 01/04/2004 from the Prison Service to the Prisons and Probation Ombudsman (PPO). However, the PPO focuses mainly on bereaved families, aiming to provide improved service for them throughout the investigation. On 07/12/2004 the authorities indicated that this transfer had been effected on an administrative basis only. Until a statutory scheme is set up, the PPO will not have power to compel witnesses.

c) Reform of the Coroner System:  The United Kingdom has indicated that the Coroner's inquest was the main vehicle by which the state meets its Article 2 obligations in such cases.

The United Kingdom authorities referred to the report of June 2003, “Death Certification and Investigation in England, Wales and Northern Ireland - The Report of a Fundamental Review 2003”, which identified a number of weaknesses in the current coroner system (including the need for a more clearly defined and extensive role for the coroner, better training for coroners and their officers and a clearer and more involved role for the bereaved).

The draft Coroner Reform Bill was published on 12/06/2006.

Major reforms relevant to this case include:

- The duty to investigate a death where the deceased was in prison or otherwise in custody (Part I, clause 1).

- Where it is necessary to avoid a breach of any Convention rights within the meaning of the HRA 1998, the purpose of the investigation will be extended to ascertaining in what circumstances the deceased came by his death (Part I, clause 10).

- A Charter for Bereaved People setting out the rights of bereaved people in relation to coronial investigations will be prepared (a draft was attached to the draft Bill).

- A class of “interested persons” will have a right to appeal a decision made by a coroner in connection with the investigation (Part IV, clause 60 and Part V, clause 76); 

- Coroners will be given powers to obtain information to help their investigations, including the power to summons witnesses to inquests and compel the production of evidence for the purpose of the investigation (Part III, clause 42).

The House of Commons Constitutional Affairs Committee issued its report on the draft Bill on 01/08/2006. It acknowledged that government had introduced some sensible reforms with respect to the death investigation procedure in Parts I and III of the draft Bill. It welcomed the government's draft Charter for Bereaved People, but noted that raising the expectations of the bereaved may lead to severe disappointment in the event of inadequate funding for the reform of the coronial system. Although accepting the right of appeal for those close to the bereaved as a valuable addition, it recommended that the class of “interested persons” be restricted and limits placed on the decisions of the coroner which are subject to appeal.

The government response to this report was published on 07/11/2006. The government response to the wider public consultation was published on 27/02/2007. No changes are planned to the draft Bill to limit in any significant way the proposed new rights of next-of-kin to access to involvement in the coroner's process, including the right of appeal against a coroner's decisions, in cases where Article 2 is engaged. Minor changes, to clarify the appeals process, have been made which would affect family members who are not next of kin but who have an interest in the case.

The Bill will be introduced in the UK Parliament as soon as time allows, perhaps in the parliamentary session commencing in November 2007.

• Information is awaited: on the progress made in the reforms mentioned above.

• Information received from civil society: It should be noted that on 05/07/2006 an information document relating to this case, submitted by the NGO Prison Advice Service, which also represents the applicants, was placed on the Committee of Ministers' internet site (http://www.coe.int/T/CM/WCD/humanrights en.asp#), in accordance with Rule 9.2.

• Information provided by the authorities of the United Kingdom is currently under assessment.