Volume of decisions

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1183);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

KEHAYA AND OTHERS v. Bulgaria

Application No. 47797/99

Judgment of 12/01/2006

Final on 12/04/2006

Judgment of 14/06/2007, final on 14/09/2007 (Article 41)

I. Case description and Convention violations found

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 issue of restitution, determined by a judicial decision in 1996 in proceedings in which the applicants had appealed against a refusal of the Agricultural Land Commission to grant restitution of certain plots of land. The Supreme Court of Cassation found that the decision of 1996 did not have res judicata effects in respect of the Forest Authority, as this decision was delivered in proceedings which were administrative by their nature, with the participation of the Agricultural Land 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).

II. Individual measures

As concerns the question of just satisfaction, the Court found that the respondent State should either return to the applicants the ownership and possession of the plots of land at issue or pay the applicants within the same deadlines certain sums corresponding to the value of the property. The Bulgarian authorities did not return the land at issue to the applicants, but instead paid the amounts awarded by the European Court as compensation for pecuniary damage in case of non-restitution, as well amounts awarded in respect of non-pecuniary damages and for costs and expenses, into bank accounts specially opened for that purpose in the name of the applicants. No further individual measures are required.

III. General measures

- Legislative measures and changes in case-law

According to Article 302 of the newCode of Civil Procedure (in force as of 01.03.2008), a final judgment by an administrative court shall be binding upon the civil court regarding the lawfulness and the validity of an administrative act. Moreover, according to Article 177 of the Code of Administrative Procedure, a judgment by which an administrative court has quashed or amended an administrative act is res judicata with regard to all persons (erga omnes).

The civil court is thus no more competent to perform the verification (indirect judicial review of the civil court over administrative acts) which it was obliged to carry out under the Interpretative Decision № 6 of 05.10.2006 of the Supreme Court of Cassation and under the provisions of the old Code of Civil Procedure. Hence, it follows that the old practice of the Supreme Court of Cassation is no longer applicable.

This has been confirmed by an interpretative decision of the Supreme Court of Cassation adopted on 14/01/2013. According to this interpretative decision, the State is bound by the res judicata effect of judgments delivered in proceedings concerning the lawfulness of administrative acts adopted under the Use and Property on Agricultural Land Act and the Restitution of Forests and Lands from the Forest Fund Act.

The Supreme Court of Cassation considered that the State can contest the validity of an administrative act taken under one of these two Acts in civil proceedings only if this administrative act had not been reviewed by the courts.

- Publication and dissemination

The judgment was published on the web site of the Ministry of Justice and sent to the competent authorities.

IV. Conclusions

In conclusion the government considers that the general measures will prevent new similar violations and that Bulgaria has complied with its obligation under 46 §1 of the Convention. The government therefore looks forward to the Committee’s decision to close the examination of this case.

Resolution CM/ResDH(2013)239
Three cases against Bulgaria

Execution of the judgments of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
72001/01	ATANASOVA	02/10/2008	02/01/2009
23057/03	DINCHEV	22/01/2009	22/04/2009
18527/02	TONCHEV	19/11/2009	19/02/2010

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

ACTION REPORT

GROUP ATANASOVA V. BULGARIA

List of Cases:

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

DINCHEV v. Bulgaria, 23057/03, judgment of 22/01/2009, final on 22/04/2009

Tonchev v. Bulgaria (II), 18527/02, judgment of 19/11/2009, final on 19/02/2010

I. Case description

These cases concern the lack of effective access to court between 1993 and 2003 due to the impossibility for the applicants to obtain decisions on compensation claims submitted in criminal proceedings which were discontinued on the grounds that prosecution had become time-barred (violations of Art. 6§1). The European Court found that the criminal courts had failed to determine finally the applicants’ claims for damages and that this could not be cured by the possibility of bringing fresh claims in the civil courts many years after the events.

The cases of Atanasova and Tonchev (II) concern also the excessive length of criminal proceedings (violations of Art. 6 § 1).

II. Individual measures

The proceedings have been terminated. The authorities have paid the just satisfaction awarded to the applicants by the European Court.

The applicants did not address the Prosecutor General in order to ask him to file a request for reopening of the criminal proceedings with the Supreme Court of Cassation. Nor did they bring their claims in the civil courts, as they could have done in order to prevent these claims to become time-barred. Their civil claims are now time-barred and the time-limit for submitting a request for reopening has expired.

No further individual measures seem possible in these cases.

III. General measures

A. As concerns the violation of Article 6 § 1 due to the lack of effective access to court

On 4 February 2013, the Supreme Court of Cassation adopted an interpretative decision concerning the examination of civil claims in criminal proceedings which had been terminated due to the expiry of a limitation period, amnesty or death of the accused. The interpretation given by the Supreme Court of Cassation in this decision is binding on the lower courts and on the panels of the Supreme Court of Cassation.

According to the above-mentioned decision, the criminal courts are now required to continue the examination of a civil claim brought in criminal proceedings, even if the proceedings are terminated due to the expiry of a limitation period, amnesty or death of the accused. The same applies to the examination of civil claims, if the criminal proceedings had been terminated by the second or third instance courts. The Supreme Court of Cassation based its decision, inter alia, on the European Court’s judgments examined in this group.

As the Supreme Court of Cassation gave a clear indication that civil claim in criminal proceedings which had been terminated due to the expiry of a limitation period should be determined by the criminal court before which this claim had been brought, no further general measures are necessary to prevent similar violations in the future.

B. As concerns the violation of Article 6 § 1 due to excessive length of criminal proceedings

These questions are currently examined in the Kitov group of cases.

IV. Conclusions

Resolution CM/ResDH(2013)240
Moulin against France

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
37104/06	MOULIN	23/11/2010	23/02/2011

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1144);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Moulin contre France (n° 37104/06)

Arrêt du 23 novembre 2010 devenu définitif le 23 février 2011

Bilan d’action du Gouvernement français

(French only)

Cette affaire concerne une avocate mise en cause dans le cadre d’une procédure d’instruction relative à un délit et placée en garde à vue sur commission rogatoire de juges d’instruction d’Orléans. La requérante fut interpellée à Toulouse, où elle exerçait sa profession. A l’issue de sa garde à vue de 48 heures, elle fut présentée au Procureur adjoint de Toulouse qui lui notifia un mandat d’amener délivré par les juges d’instruction d’Orléans en vue de sa mise en examen. Elle fut ensuite conduite à la maison d’arrêt en vue de son transfèrement devant les juges d’instruction qu’elle rencontra trois jours après la fin de sa garde à vue.

Invoquant l’article 5 § 3 (droit à la liberté et à la sûreté), la requérante se plaignait notamment de ne pas avoir été « aussitôt traduite » devant « un juge ou un autre magistrat habilité par la loi à exercer des fonctions judiciaires ». Dans son arrêt, la Cour a constaté que l’intéressée n’avait été présentée à un juge du siège qu'après une période de plus de cinq jours après son arrestation et que la présentation dans l'intervalle au Procureur de la République ne pouvait y suppléer. Elle en a conclu à la violation de l'article 5§3 de la Convention.

I. Mesures de caractère individuel

1. Le paiement de la satisfaction équitable

La Cour a alloué au requérant une satisfaction équitable de 12 500 € en réparation de son préjudice moral et au titre des frais et dépens. La somme principale a été versée au requérant le 31 mai 2011. Des intérêts de retard ont été versés le même jour.

2. Les autres mesures éventuelles

Aucune autre mesure individuelle n'est requise dans cette affaire.

II. Mesures de caractère général

1. Sur la diffusion

Il convient de noter que les autorités françaises publient systématiquement les arrêts de la Cour européenne des Droits de l'Homme et les diffusent aux autorités concernées. Cet arrêt a ainsi été publié à l’Observatoire du droit européen de la Cour de cassation (n° 35 nov-déc 2010).

Il a également fait l’objet de commentaires dans des revues juridiques (cf. notamment Droit Pénal 2011, chron 7, Droit pénal 2010, 58, RFDA 10 novembre 2011, JCP 2011, 94).

2. Sur les autres mesures générales

Dans son arrêt, la Cour a constaté que, dans le contexte de l'article 5§3 de la convention, la présentation de la personne arrêtée au Procureur de la République ne pouvait suppléer à l'obligation de traduire la personne devant "un juge ou un autre magistrat habilité par la loi à exercer des fonctions judiciaires" au sens de cet article. Il en a été pris acte et la loi n°2011-392 du 14 avril 2011 relative à la garde à vue a tiré les conséquences de l’arrêt en cause en son article 22. Cet article est venu modifier les articles 127, 133 et 135‑2 du code de procédure pénale qui disposent ainsi que, lorsque la personne a été interpellée à plus de 200 km du siège de la juridiction saisie, et qu'il n'est pas possible de la conduire dans un délai de 24 heures devant le juge d'instruction auteur du mandat, elle est conduite, dans ce même délai, devant le juge des libertés et de la détention du lieu de l'arrestation. Il est précisé que le juge des libertés et de la détention est un juge du siège, indépendant et inamovible ; il exerce alors les attributions anciennement dévolues au procureur de la République par les articles 127, 133 et 135-2 dans leur rédaction antérieure. Le juge des libertés et de la détention peut bien évidemment ordonner la mise en liberté de l’intéressé s’il constate une violation manifeste de la loi.

Cette modification du code de procédure pénale garantit donc dorénavant en toute hypothèse que la personne faisant l’objet d’un mandat soit présentée dans les 24h devant un juge habilité par la loi à exercer des fonctions judiciaires au sens de l’article 5§3 de la Convention. Cette modification législative permettra d'éviter la réitération de la violation constatée par la Cour.

En conséquence, le gouvernement estime que l’arrêt a été exécuté.

Resolution CM/ResDH(2013)241
Pascaud against France

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

19535/08

PASCAUD

16/06/2011

08/11/2011

16/09/2011

08/02/2013

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Pascaud contre France (n° 19535/08)

Arrêt du 16 juin 2011 devenu définitif le 16 septembre 2011

Arrêt du 8 novembre 2012 devenu définitif le 8 février 2013

Bilan d’action du gouvernement français

(French only)

Cette affaire concerne une violation de la vie privée du requérant qui s’était vu refuser par les juridictions nationales la reconnaissance de son lien de filiation avec son père biologique.

La Cour a constaté que les juges nationaux ont refusé de reconnaître la filiation du requérant sur un motif purement procédural du défaut de consentement réel du père présumé à être soumis à un test ADN, sans que les magistrats aient pris à en considération le droit du requérant à connaître son ascendance et à voir établie sa véritable filiation. Elle a souligné que le requérant, dans les circonstances de l’espèce, ne disposait, par ailleurs, d’aucun autre moyen de faire établir sa paternité biologique et que le père présumé avait exprimé à plusieurs reprises le souhait de reconnaître le requérant.

Elle a dès lors estimé qu’un juste équilibre n’avait pas été ménagé entre les intérêts en balance : la préservation des intérêts des tiers, qui peut comprendre une interdiction d’obligation de se soumettre à des tests génétiques d’une part et le droit de faire établir sa paternité biologique d’autre part. Elle en a conclu que l’article 8 de la Convention avait été violé.

I. Mesures de caractère individuel

1. Le paiement de la satisfaction équitable

La Cour a alloué au requérant une satisfaction équitable au titre de la réparation du dommage moral et des frais et dépens d’un montant de 20 000 euros, qui a été payé le 18 novembre 2011.

La Cour a alloué, dans son second arrêt, une satisfaction équitable de 2 750 000 euros. Cette somme augmentée d’intérêts moratoires a été versée le 31 mai 2013.

2. Les autres mesures éventuelles

Le gouvernement ayant procédé au paiement de la satisfaction équitable, il est d'avis qu’aucune autre mesure individuelle n'est requise dans cette affaire. Le requérant n’a, au demeurant, pas fait de demande en vue de faire reconnaître sa véritable filiation, après l’arrêt de la Cour.

II. Mesures de caractère général

1. Sur la diffusion

L’arrêt a été diffusé au ministère de la Justice et fait l’objet de publications dans de nombreuses revues spécialisées (JCP G 2011, 914 ; JCP G 2012, 296 ; D. 2011. 1758 ; AJ fam. 2011. 429, RTD civ. 2011. 526).

2. Sur les autres mesures générales

La Cour a dans cet arrêt critiqué la position des juges nationaux qui, selon elle, n’avaient pas mis suffisamment ménagé les intérêts en présence.

Le Gouvernement estime que cette décision ne nécessite pas d’autres mesures générales, compte-tenu d’une part caractère très particulier des faits ayant conduit au constat de la violation et aux mesures prises, par la diffusion et la publication de l’arrêt de la Cour, pour prévenir des violations similaires de l’article 8 de la Convention.

Au vu de ces éléments, le gouvernement considère que l’arrêt a été exécuté.

Resolution CM/ResDH(2013)242
Seven cases against Georgia

Execution of the decisions of the European Court of Human Rights

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Application No.	Case	Date of the decision
35424/09	MELIKISHVILI	04/06/2013
44706/10	Z.	04/06/2013
63875/10	SHUBLADZE	04/06/2013
34782/09	ZEDELASHVILI	04/06/2013
39830/11	MAISURADZE	04/06/2013
61370/09	GULDEDAVA	18/06/2013
51437/10	ABASHIDZE	18/06/2013

The Committee of Ministers, under the terms of Article 39, paragraph 4, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of friendly settlements as they appear in the decisions of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Considering that in these cases the Court, having taken formal note of the friendly settlements reached by the government of the respondent State and the applicants, and having been satisfied that the settlements were based on respect for human rights as defined in the Convention or its Protocols, decided to strike these cases from its list;

Having satisfied itself that the terms of the friendly settlements were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close their examination.

Resolution CM/ResDH(2013)243
Maya Okroshidze and Giorgi Okroshidze against Georgia

Execution of the decision of the European Court of Human Rights

Application No.	Case	Date of the decision
60596/09	Maya OKROSHIDZE and Giorgi OKROSHIDZE	11/12/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Considering that in this case the Court, having taken formal note of friendly settlement reached by the government of the respondent State and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided, unanimously, to strike this case from its list;

Having satisfied itself that the terms of the friendly settlement were executed by the government of the respondent State (see document DH-DD(2013)678-rev);

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close its examination.

Bilan d’action du Gouvernement géorgien

Maya Okroshidze et Giorgi Okroshidze (n° 60596/09)

Décision du 11.12.2012, définitif le 18.12.2012

(French only)

I. Résumé introductif de l’affaire

L’affaire concerne le refus des juridictions internes d’établir la filiation légale du second requérant bien que les résultats d’un test d’ADN qualifié aient confirmé les liens de paternité biologique. Les parties sont parvenues à un règlement amiable par lequel les autorités ont pris les engagements suivants :

1. Le gouvernement s’engage à payer aux requérants 3 000 euros pour dommage moral/matériel et 3 507,27 euros pour frais et dépens ;

2. Le gouvernement reconnait que les requérants ont droit d’introduire la demande de réexamen de la décision interne (l’article 423 §1 al. « g » du Code de la procédure civile[1]) visant à établir la paternité et recevoir la pension alimentaire dont le montant sera calculé à partir de la date de la procédure initiale - 28.01.2008 ;

3. La paternité doit être reconnue, entre autres, sur la base de résultat du test ADN déjà réalisé;

4. En vertu de l’article 46§1, al. « a » et/ou « e » du Code de procédure civile, les requérants seront exonérés des frais de justice ;

5. En vertu de l’article 53 du Code de procédure civile, les requérants ont droit de demander le remboursement de frais de justice encourus à partir du 28.01.2008.

II. Exécution

1. Paiement de la satisfaction équitable

Nom et n° de la requête

Dommage moral/

dommage matériel

Frais et dépens

Total

Maya Okroshidze et Giorgi Okroshidze c. Géorgie (n° 60596/09)

3 000 EUR

3 507,27 EUR

6 507,27 EUR

Payé le 14.03.2013

2. Conformément à la décision de la Cour européenne et en vertu de l’article 423§1 al. « g » du Code de procédure civile, le 04.03.2013 les requérants ont introduit la demande de réexamen auprès de la cour de la ville de Tbilissi.

3. Par sa décision du 16.05.2013, la cour de la ville de Tbilissi, en se fondant entre autres sur le résultat du test ADN réalisé auparavant (voir §6 de la décision), a reconnu la paternité et a désigné G.S. comme le père biologique du requérant. La cour a également imposé à G.S. le paiement de la pension alimentaire de 120 laris (environ 55 euros) par mois, à calculer à partir de la date de la procédure initiale de la procédure – 28.01.2008 jusqu’à la majorité du requérant.

4. Conformément à l’article 46§1 du code de la procédure civile, sont exonérés du paiement des frais de justice au profit du budget de l’Etat: a) Les demandeurs – sur les recours concernant le paiement de la pension alimentaire ; … e) sur les recours concernant la violation des droits de mineurs.

Par conséquent, les requérants ont été exonérés de paiement des frais de justice au profit du budget.

5. En vertu de l’article 53§1 du Code de la procédure civile, le remboursement des frais encourus par la partie ayant obtenu la décision favorable est à la charge de la partie adverse même si elle est exonérée de paiement de frais de la justice.

Par conséquent, la cour de la ville a imposé à G.S. le remboursement des sommes suivantes à la requérante :

- les frais de l’expertise : 468 laris (environ 217 euros) ;

- les frais de collecte de preuves : 184 laris (environ 85 euros).

Conformément à l’article 55§1 du Code de la procédure civile, les frais et la taxe d’Etat encourus par le tribunal lors de l’examen de l’affaire et dont le demandeur est exonéré sont à la charge du défendeur.

Par conséquent, la cour a imposé à G.S. le remboursement au profit de budget de l’Etat de frais judiciaires suivants :

- les frais d’introduction de recours : 100 laris (environ 46 euros);

- les frais d’introduction de recours en appel : 150 laris (environ 70 euros) ;

- les frais d’introduction de recours en cassation : 300 laris (environ 140 euros) ;

- la taxe d’État : 100 laris (environ 46 euros).

III. Conclusions de l’Etat défendeur

A la lumière de ce qui précède, le gouvernement estime que suite aux mesures adoptées, il a respecté les engagements pris dans le cadre du présent règlement amiable et que par conséquent, il a rempli ses obligations découlant de l’article 39 de la Convention.

Resolution CM/ResDH(2013)244
71 cases against Germany

Execution of the judgments of the European Court of Human Rights

(See Appendix for the list of cases)

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction where awarded by the Court (see document DH-DD(2013)1234);

Welcoming that the German authorities have, within the time-limit set by the Court in its pilot judgment delivered in the case of Rumpf, introduced in their legal system a domestic remedy in respect of the excessive length of judicial proceedings in order to comply with the requirements of the Convention;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention these cases and

DECIDES to close the examination thereof.

Appendix

Application/	Case	Judgment of	Final on
46344/06	RUMPF	02/09/2010	02/12/2010
54215/08	ABDUVALIEVA	26/11/2009	26/02/2010
44036/02	ADAM	04/12/2008	04/03/2009
39444/08	AFFLERBACH	24/06/2010
10732/05	BÄHNK	09/10/2008	09/01/2009
1479/08	BALLHAUSEN	23/04/2009	23/07/2009
8453/04	BAYER	16/07/2009	16/10/2009
21965/09	BELLUT	21/07/2011
7634/05	BOZLAR	05/03/2009	05/06/2009
1126/05	D.E.	16/07/2009	06/11/2009
17878/04	DEIWICK	11/06/2009	11/09/2009
7369/04	DEIWICK	26/03/2009	26/06/2009
40014/05	DÖRING	08/07/2010	08/10/2010
39778/07+	DUDEK	16/12/2010
2693/07	EWALD	21/10/2010
1679/03	GLÜSEN	10/01/2008	10/04/2008
66491/01	GRÄSSER	05/10/2006	26/03/2007
43155/08	GRUMANN	21/10/2010
57249/00	HERBOLZHEIMER	31/07/03	31/10/03
20027/02	HERBST	11/01/2007	11/04/2007
397/07+	HOFFER AND ANNEN	13/01/2011	20/06/2011
1182/05	HUB	09/04/2009	09/07/2009
39641/08	JAHNKE	03/03/2011
10053/08	JESSE	22/12/2009
11811/10	KEMPE	30/06/2011
37820/06	KINDEREIT	08/10/2009	08/01/2010
19124/02	KIRSTEN	15/02/2007	09/07/2007
21061/06	KRESSIN	22/12/2009
17384/06	KUCHEJDA	24/06/2010
21980/06+	KUHLEN-RASANDJANI (I-III)	20/01/2011	20/04/2011
41599/09	KUPPINGER	21/04/2011
53550/09	KURCZVEIL	20/10/2011
14635/03	LAUDON	26/04/2007	24/09/2007
58911/00	LEELA FÖRDERKREIS E.V. AND OTHERS	06/11/2008	06/02/2009
41629/07	MIANOWICZ	13/10/2011
37111/04	MIANOWICZ	29/09/2011
37264/06	MIANOWICZ	13/10/2011
3810/06	MIANOWICZ	13/10/2011
3863/06	MIANOWICZ	13/10/2011
32637/08	MIANOWICZ	13/10/2011
71972/01	MIANOWICZ No. 2	11/06/2009	01/03/2010
36395/07	MÜLLER	25/02/2010	25/05/2010
39741/02	NANNING	12/07/2007	12/10/2007
12852/08	NIEDZWIECKI No. 2	01/04/2010
32513/08	NIESEN	21/10/2010
27250/02	NOLD	29/06/2006	11/12/2006
10597/03	OMMER No. 1	13/11/2008	13/02/2009
26073/03	OMMER No. 2	13/11/2008	13/02/2009
28348/09	OTTO	22/09/2011
25756/09	PERSCHKE	24/06/2010
901/05	PETERMAN	25/03/2010
34236/06	POPOVIC	13/01/2011	13/04/2011
485/09	REINHARD	25/03/2010	31/05/2010
32338/07	RITTER-COULAIS	30/03/2010
21423/07	SCHÄDLICH	24/06/2010
2651/07	SCHLIEDERER	21/10/2010
46682/07	SINKOVEC	30/03/2010
76680/01	SKUGOR	10/05/2007	24/09/2007
47757/06	SOPP	08/10/2009	08/01/2010
854/07	SPATH	29/09/2011	08/03/2012
38033/02	STORK	13/07/2006	13/10/2006
75529/01	SÜRMELI	08/06/2006	Grand Chamber
32936/09	TRÄXLER	21/10/2010
64387/01	UHL	10/02/2005	10/05/2005
54188/07	VOLKMER	30/03/2010
40009/04	VON KOESTER No. 1	07/01/2010	22/11/2010
17019/08	VON KOESTER	22/09/2011
38187/08	WAGNER	18/11/2010
30175/07	WETJEN	25/03/2010
974/07	WIENHOLTZ	21/12/2010	21/03/2011
42402/05+	WILDGRUBER	21/01/2010	21/04/2010

Report on the execution of the pilot judgment of the European Court of Human Rights delivered on

2 September 2010 in the case of R. v. Germany (No. 46344/06) and 70 other cases concerning excessive length of proceedings and the lack of an effective remedy in that respect

1. Introduction

The cases concern the lack of an effective remedy against the length of judicial proceedings before the civil courts, the labour courts, the administrative courts, social courts and criminal courts, as well as of criminal investigation proceedings.

A list of all cases concerned is enclosed in Annex 1.

The European Court of Human Rights established in its judgments that the length of the proceedings constituted a violation of Article 6 § 1 of the Convention. Because the applicants did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings or provided adequate redress for delays that had already occurred, the Court found in several cases that there had been a violation of Article 13 of the Convention.

The Court had found in its judgment of 8 June 2006 handed down in the case No. 75529/01 that the possibilities of legal protection in Germany in the event of excessive length of proceedings did not meet the requirements of Article 6 § 1 and Article 13 of the Convention.

In the case of R. v. Germany (No. 46344/06), the Court rendered a pilot judgment against Germany on 2 September 2010 because legal protection had not yet been improved. The Court requested the German Government to introduce without delay and within maximum of one year after the judgment became final (i.e. by 2 December 2011), a remedy in the national legal system in order to bring it in line with the Convention requirements.

2. Individual measures

a) Just satisfaction

In all cases, the compensation awarded was paid within the time limit set by the Court. The amounts paid and the payment dates are listed in Annex 1.

b) Domestic proceedings

It has now been possible to conclude the domestic proceedings with legal force in 66 out of 71 cases.

The domestic proceedings which it has not yet been possible to finally conclude have been continued since the respective judgments of the Court. Annex 2 contains an overview of the status of these sets of proceedings, also showing the progress that has been made in the proceedings.

The Federal Government has stressed in these cases towards the authorities and courts concerned that full implementation of the judgments also encompasses the duty to conclude the proceedings that are still pending within a reasonable period and without any culpable delays. In order to make sure that this takes place, they are closely monitored by the Federal Government. The Federal Government hence calls for reports from the competent authorities at regular intervals in all cases on the progress that has been achieved in the proceedings, and requests to be provided with information on steps that have been taken serving to achieve the conclusion of the proceedings. Accordingly, all authorities concerned regularly inform the Federal Government of the progress made in the proceedings. According to these reports, all sets of proceedings are now being rapidly pursued.

3. General measures

a) Publication and dissemination of the judgments

The courts that were involved in the court proceedings, whose decision formed the basis of the applications, have been notified of the judgments. Furthermore, German translations of the judgments were sent to all the Ministries of Justice of the Länder for notification within their remit.

In addition to this, German translations of the judgments were published on the website of the Federal Ministry of Justice in the Ministry’s case-law database (www.bmj.de/egmr).

Furthermore, the translations were sent to several important publishing houses that bring out legal periodicals. Thereupon, several judgments were published in legal periodicals. A list of publications can be found on www.egmr.org. The pilot judgment in the case of R. v. Germany has been published in the “Europäische Grundrechte Zeitschrift” (EuGRZ 2010, p. 700) and the “Neue Juristische Wochenschrift” (NJW 2010, 3355).

Moreover, the judgments have been included in the reports drawn up in the Federal Ministry of Justice, entitled “Report on the Case-Law of the European Court of Human Rights and on the Execution of its Judgments in Cases against the Federal Republic of Germany”. These reports have been widely disseminated and published on the Federal Ministry of Justice website at www.bmj.de.

b) Presentation of the report on the implementation of the judgments in Parliament

The annual reports on the Court’s case-law and the implementation of the judgments in cases against Germany were also forwarded to the competent committees of the German Federal Parliament and of the Federal Council (Committee on Legal Affairs, Committee on Human Rights, Petitions Committee). Additionally, individual reports have been presented by the Federal Government in the plenary of the Committee on Human Rights and discussed with the delegates.

c) Federation-Länder Conference

An annual conference has been held at the Federal Ministry of Justice, attended by representatives of the Länder, the Federal Ministries and the Federal Courts. The judge at the European Court of Human Rights elected for Germany also attended the conferences. A major topic of the conferences was excessively long court proceedings and the creation of effective legal protection in case of such proceedings. The conferences made a major contribution towards heightening the awareness of the need to take effective measures against excessively long proceedings.

d) Basic and further training of judges and public prosecutors

The European Convention for the Protection of Human Rights plays a major role in the basic and further training of judges and public prosecutors in the light of the case-law of the ECHR. Specifically, the topic of “excessively long proceedings” has been the subject of several different further training events held at the German Judicial Academy and in the further training facilities of the Länder. For instance, the Agents for the Federal Government reported regularly to the German Judicial Academy on the case-law of the ECHR. This has also dealt with how to avoid excessively long sets of proceedings.

e) Statistics

The average duration of proceedings in Germany has been at a constantly low level for several years. For instance, civil court proceedings before the Local Courts take an average of fewer than five months.

Duration of court proceedings (starting instance)

(Source: Fachserie 10 Reihe 2.1 - 2.8 of the Federal Statistical Office/DeStatis)

	Average length of proceedings in months 2010 and 2011	Average length of proceedings in months 2007
Civil courts	Local Court (2011): 4.7	Local Court (2007): 4.5
Civil courts	Regional Court (2011): 8.2	Regional Court (2007): 7.9
Family courts	7.0 (2011)	10.1 (2007)
Criminal courts	Local Court (2011): Criminal proceedings: 3.8 Fines proceedings: 2.9	Local Court (2007): Criminal proceedings: 4.0 Fines proceedings: 2.7
Criminal courts	Regional Court (2011): 6.4	Regional Court (2007): 6.3
Administrative courts	Administrative Courts (2011): 10.8	Administrative Courts (2007): 13.9
Administrative courts	Regional Administrative Courts (2011) 15.8	Regional Administrative Courts (2007) 12.4
Social courts	14.0 (2011)	13.7 (2007)
Labour courts	3.1 (2011)	3.1 (2007)
Finance courts	16.8 (2011)	18.5 (2007)

The longer proceedings before the social courts are a consequence of the large number of highly complex cases in which the expertise of external experts is required. This particularly relates to pension and compensation rights, such as the recognition of an occupational disease as a prerequisite for an invalidity pension (cf. Fachserie 10 Reihe 2.7 of the Federal Statistical Office/DeStatis).

f) Organisational measures to reduce the length of proceedings

Where structural problems were identified, measures have been taken to improve the situation.

For example, with regard to the case of O. v. Germany (1 and 2) (Nos. 10597/03 and 26073/03):

The Court found that unreasonable delays occurred before the Cologne investigation authorities and the Regional Court due to staff shortages. A special division composed of highly qualified experts was created in the Cologne Public Prosecutor’s office in 2003 to deal with organised economic crimes and large-scale criminal cases. Modern technological facilities were installed. In 2009, additionally recruited prosecutors in North-Rhine Westphalia were allocated to divisions dealing with economic crimes. Furthermore, Cologne Regional Court has also been reinforced with additional personnel. Members of the civil section have been assisting the criminal section for several years. Four additional judges have been assigned to Cologne Regional Court since May 2007. These measures have helped accelerate criminal proceedings.

Another example is the case of K. and T. v. Germany (Nos. 45749/06 and 51115/06):

At the time the proceedings were pending, the Federal Constitutional Court faced an extraordinary workload. A variety of relief measures were taken to improve the situation. An additional registry was set up. Four more legal staff members have been employed in the scientific service of the Federal Constitutional Court. The number of scientific staff members was increased by a total of 12 persons from 1999 to 2005.

g) Legislative measures to ensure legal protection in the case of excessive length of court proceedings and criminal investigation proceedings

Draft legislation was drawn up very soon after the pilot judgment. The Act on Legal Redress for Excessive Length of Court Proceedings and of Criminal Investigation Proceedings aims to do justice to Article 6 § 1 and Article 13 of the Convention as interpreted by the Court. The Act entered into force one year after the pilot judgment became final on 3 December 2011. It provides a remedy against proceedings of excessive length in two steps:

Acceleratory remedy

The first step requires those affected to file a complaint about the delay to the court that in their view is working too slowly. This helps to avoid proceedings of excessive length from the outset. The “delay objection” permits judges to remedy the situation. This means that people cannot merely allow a set of proceedings to take a long course and later claim compensation.

Compensatory remedy

If the proceedings continue to be delayed despite the complaint, a claim for compensation may be filed as a second step. In these compensation proceedings, the affected citizens receive, as a general rule, €1,200 per year for so-called non-pecuniary disadvantages – for example, for psychological and physical burdens caused by the long proceedings – where reparations of another type are not sufficient. In addition to compensation for a non-pecuniary disadvantage, there is appropriate compensation for a pecuniary disadvantage, for example if the unreasonably long proceedings lead to a company’s insolvency.

The new claim to compensation is not dependent on fault. This means that it does not matter whether judges can be blamed for the delay. In addition to the new compensation rules, claims for official liability – as in the past – may also be lodged if the delay is based upon a culpable violation of official duties. In such cases, comprehensive compensation for damage may be claimed, for example compensation for lost profits.

Protection against proceedings of excessive length will result in positive effects for the justice system as a whole. In cases where there is a large number of complaints due to the length of the proceedings, those responsible will need to reflect on how to improve facilities, the distribution of responsibilities and organisation. The legislation thereby not only enhances legal protection before the German courts, but in fact strengthens the courts themselves as well.

An English version of the Act is available on the website of the Federal Ministry of Justice:

http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/Act_on_Legal_%20Redress_for_Excessive_Length_of_Court_Proceedings_and_of_Criminal_Investigation_Proceedings.pdf?__blob=publicationFile.

h) Effectiveness of the new legal protection

After the above Act came into force, the European Court of Human Rights, with its rulings of 29 May 2012 in the cases of T. v. Germany (No. 53126/07) and G. v. Germany (No. 19488/09) amongst others, rejected as inadmissible complaints of excessively long proceedings because the applicants had failed to exhaust all the domestic remedies. The Court ruled that the applicants had first to claim compensation in Germany in accordance with the new Legal Redress Act before the Court could deal with the application.

The Court however explicitly indicated that its position may be subject to review in the future, particularly depending on the domestic courts’ capacity to establish consistent case-law under the Legal Redress Act in line with the Convention requirements. The Court furthermore indicated that, in any new applications, the burden of proof as to the effectiveness of the new remedy would lie in practice with the respondent Government (T. v. Germany (No. 53126/07), marginal No. 45 and G. v. Germany (No. 19488/09), marginal No. 48.)

There have now been various rulings on the basis of the new Act.

For instance, the Higher Administrative Court of the Land Saxony-Anhalt ruled by judgment of 25 July 2012 (ref: 7 KE 1/11) that court proceedings before Halle Administrative Court had all in all lasted for an inappropriately long period. One could presume that the length of the proceedings was inappropriate if a weighing up of all the circumstances indicated that the obligation incumbent on the State to effect a conclusion of court proceedings within a reasonable period in line with the above provisions had been violated. In the specific case, a police officer had objected to being transferred to a different department within her police station. The proceedings before the Administrative Court were concluded two years after the action had been received. The Senate found that in view of the low level of difficulty and complexity of the proceedings, the total period of processing of the initial legal dispute at more than two years, and its processing in individual stages of the proceedings, was no longer reasonable within the meaning of the Act on Legal Redress for Excessive Length of Court Proceedings, and awarded to the police officer compensation of 1,864.87 € for material damage and compensation of 1,200.00 € for non-pecuniary damage (Annex 3). The Federal Administrative Court confirmed the ruling by judgment of 11 July 2013 (ref: 5 C 27.12 D).

In another set of proceedings, Berlin-Brandenburg Higher Administrative Court found by judgment of 27 March 2012 (ref: 3 A 1.12) that proceedings before the Administrative Court had been excessively long, and awarded 4,000 € to the applicant as compensation for non-pecuniary damage. In the underlying proceedings, a student had complained of being asked to re-pay an educational promotion subsidy. Berlin-Brandenburg Higher Administrative Court found that the proceedings had not been pursued over a period of three years and four months without any adequate justification. Referring to the case-law of the European Court of Human Rights, the court emphasised that the Land against which the action was directed was not able to invoke the general workload of the administrative courts in the period in question. The courts had to make sustained efforts to accelerate the proceedings as their duration became longer. The respondent Land was obliged to organise its legal system in such a way that its courts were able to guarantee the right of the individual to bring about a ruling with legal force within a reasonable period (Annex 4). On 11 July 2013 the Federal Administrative Court reversed the judgment (ref: 5 C 23.12 D). It found that there had been an unjustified delay of five years and that the applicant therefore had to be awarded the total sum of 6,000 € as compensation for non-pecuniary damage.

A further ruling related to the excessive duration of a set of criminal proceedings. By judgment of 24 October 2012, Celle Higher Regional Court (23 SchH 3/12) awarded compensation of 3,000 € to the person concerned for the excessive length of the investigation proceedings pursued against him on suspicion of perjury and attempted obstruction of justice. The Higher Regional Court presumed an unjustified delay of two years and six months in this case. No notable promotion of the proceedings had taken place during this period. Since the appeal on points of law to the Federal Court of Justice was admitted, this ruling does not yet have legal force (Annex 5).

By judgment of 7 November 2012, Celle Higher Regional Court (23 SchH 2/12) awarded 3,600 € to a plaintiff in damages for excessively long civil proceedings. In the underlying proceedings, the plaintiff requested compensation and damages for pain and suffering for medical malpractice. The Higher Regional Court found that there had been an unjustified delay totalling three years in connection with obtaining a report by an expert witness (Annex 6).

By judgment of 29 November 2012 (L 10 SF 5/12 ÜG), Saxony-Anhalt Higher Social Court found that the duration of a set of proceedings before the social courts had been unreasonable, and awarded damages of 2,400.00 € to the plaintiff. Since the appeal on points of law to the Federal Social Court has been admitted, this ruling does not yet have legal force (Annex 7).

By ruling of 13 August 2012 (1 BvR 1098/11), the Federal Constitutional Court rejected as inadmissible a complaint because of the duration of social court proceedings at first instance for lack of a need for legal protection, pointing to the new Legal Redress Act. The Federal Constitutional Court found in this ruling that the duration of the proceedings before the social court was not reasonable. The Federal Constitutional Court emphasised once more that the reasonableness of the length of proceedings was to be assessed in the light of the circumstances of the particular case concerned. In particular, the difficulty of the material to be ruled on, the need for factual investigations, the importance of what was at stake in the case for the participants and their own conduct in the proceedings were significant here. The Federal Constitutional Court went on to state that an excessive workload of a court – unlike unforeseeable coincidences or twists of fate – falls within the area of responsibility of the constitutional state. It is incumbent on the Länder to ensure within their remit adequate material and staffing for the courts to enable them to perform their justice mandate in a manner meeting the requirements of Art. 19 § 4 sentence 1 of the Basic Law (GG). The Länder must also react in such cases to any prolonged periods of incapacity for work of the judicial staff by taking suitable action (Annex 8).

By rulings of 28 January 2013 (2 BvR 1912/12), 20 June 2012 (2 BvR 1565/11) and 30 May 2012 (1 BvR 2292/11), the Federal Constitutional Court did not admit constitutional complaints because of excessive length of proceedings that had been lodged for adjudication since the applicants had omitted to lodge a damage action in accordance with section 198 subs. 1 sentence 1 of the Courts Constitution Act (GVG).

A further non-admission ruling was based on the initial proceedings which had been regarded as too long now having been concluded (order of 13 August 2012 (1 BvR 1098/11)).

Rulings of the Higher Regional Courts can be appealed by an appeal on points of law. The rulings of the Federal Courts which have already been handed down since the new law came into force relate to the admissibility of other remedies (Federal Court of Justice, order of 29 November 2012, VIII ZB 49/12), granting legal aid in connection with damage actions (Federal Court of Justice: orders of 20 December 2012; III ZA 33/12; of 8 November 2012, III ZA 27/12; of 25 October 2012 - III ZB 64/12; of 27 June 2012, III ZB 45/12; Federal Finance Court: orders of 12 March 2013, X S 12/13 (PKH)); of 26 July 2012, X S 18/12 (PKH); obligation to have counsel in damage actions (Federal Finance Court, judgment of 6 February 2013, X K 11/12), the impact of the unreasonable length of proceedings in disciplinary proceedings (Federal Administrative Court, orders of 22 January 2013 - 2 B 89.11; of 30 August 2012 - 2 B 21.12; of 1 June 2012, 2 B 123.11; of 16 May 2012 - 2 B 3.12; judgment of 29 March 2012 – Federal Administrative Court 2 A 11.10), as well as the questions concerning the degree to which the excessive length of a set of proceedings can constitute grounds for the admission of an appeal on points of law only (Federal Finance Court, order of 9 January 2013, X B 114/12), and when a delay in proceedings in breach of the rule of law applies in criminal proceedings (Federal Court of Justice, order of 5 December 2012, 1 StR 531/12).

4. Conclusion

It can be found against this background that the German case-law is appropriately applying the Act, which came into force in December 2011, with which an appeal against excessively long proceedings was created. The pilot judgment R. (No. 46344/06) has hence been implemented.

Annex 1

List of cases R. v. Germany group

	No.	Judgment	Just satisfaction (total)	Paid on
1 Pilot	46344/06	02/09/2010	13,990.00	30.12.2010
2	54215/08	26/11/2009	2,380.00	19.03.2010
3	44036/02	04/12/2008	7,500.00	18.05.2009
4	39444/08	24/06/2010	10,433.83	22.09.2010
5	10732/05	09/10/2008	2,469.65	12.02.2009
6	1479/08	23/04/2009	9,000.00	12.08.2009
7	8453/04	16/07/2009	6,500.00	04.12.2009
8	21965/09	21/07/2011	5,050.00	19.10.2011
9	7634/05	05/03/2009	3,000.00	03.09.2009
10	1126/05	16/07/2009	1,750.00	07.12.2009
11	17878/04	11/06/2009	500.00	30.09.2009
12	7369/04	26/03/2009	1,500.00	12.08.2009
13	40014/05	08/07/2010	4,900.00	07.01.2011
14	39778/07 11171/08 43336/08 52719/08 15895/09 16123/09 16127/09 16129/09 27529/09 27533/09 27596/09	16/12/2010	30,000.00	14.03.2011
15	2693/07	21/10/2010	6,000.00	19.01.2011
16	1679/03	10/01/2008	12,163.46	08.07.2008
17	66491/01	05/10/2006	59,000.00	22.06.2007
18	43155/08	21/10/2010	12,796.99	19.01.2011
19	57249/00	31/07/2003	12,000.00	23.12.2003
20	20027/02	11/01/2007	10,000.00	09.07.2007
21	397/07 2322/07	13/01/2011	10,000.00	16.09.2011
22	1182/05	09/04/2009	2,500.00	07.10.2009
23	39641/08	03/03/2011	-	-
24	10053/08	22/12/2009	4,000.00	31.03.2010
25	11811/10	30/06/2011	3,300.00	28.09.2011
26	37820/06	08/10/2009	-	-
27	19124/02	15/02/2007	4,000.00	09.10.2007
28	21061/06	22/12/2009	3,000.00	31.03.2010
29	17384/06	24/06/2010	11,500.00	22.09.2010
30	21980/06 26944/07 36948/08	20/01/2011	10,000.00	20.07.2011
31	41599/09	21/04/2011	8,945.73	19.07.2011
32	53550/09	20/10/2011	6,000.00	16.01.2012
33	14635/03	26/04/2007	-	-
34	58911/00	06/11/2008	4,000.00	04.05.2009
35	71972/01	11/06/2009	8,880.00	19.03.2010
36	37111/04	29/09/2011	4,850.00	27.12.2011
37	3810/06	13/10/2011	2,670.00	11.01.2012
38	3863/06	13/10/2011	5,150.00	11.01.2012
39	37264/06	13/10/2011	3,650.00	11.01.2012
40	41629/07	13/10/2011	-	-
41	32637/08	13/10/2011	-	-
42	36395/07	25/02/2010	500.00	23.08.2010
43	39741/02	12/07/2007	8,397.35	11.01.2008
44	12852/08	01/04/2010	-	-
45	32513/08	21/10/2010	3,000.00	19.01.2011
46	27250/02	29/06/2006	5,618.16	08.03.2007
47	10597/03	13/11/2008	20,000.00	11.05.2009
48	26073/03	13/11/2008	14,000.00	11.05.2009
49	28348/09	22/09/2011	17,164.54	20.12.2011
50	25756/09	24/06/2010	2,000.00	22.09.2010
51	901/05	25/03/2010	10,000.00	19.05.2010
52	34236/06	13/01/2011	5,000.00	01.07.2011
53	485/09	25/03/2010	12,644.20	23.06.2010
54	32338/07	30/03/2010	10,736.25	19.04.2010
55	21423/07	24/06/2010	4,000.00	22.09.2010
56	2651/07	21/10/2010	2,600.00	19.01.2011
57	46682/07	30/03/2010	5,132.61	03.05.2010
58	76680/01	10/05/2007	2,000.00	27.12.2007
59	47757/06	08/10/2009	14,000.00	08.02.2010
60	854/07	29/09/2011	270.00	06.06.2012
61	38033/02	13/07/2006	2,900.00	11.01.2007
62	75529/01	08/06/2006 [GC]	14,672.89	06.09.2006
63	32936/09	21/10/2010	14,879.20	19.01.2011
64	64387/01	10/02/2005	2,000.00	05.08.2005
65	54188/07	30/03/2010	23,188.59	30.04.2010
66	40009/04	07/01/2010	-	-
67	17019/08	22/09/2011	12,600.00	20.12.2011
68	38187/08	18/11/2010	3,100.00	16.02.2011
69	30175/07	25/03/2010	9,000.00	12.04.2010
70	974/07	21/12/2010	17,943.91	17.06.2011
71	42402/05 42423/05	21/01/2010	9,500.00	19.07.2010

Annex 2

Sets of proceedings in which the Court found a violation of Art. 6 § 1 for excessively long proceedings where the underlying domestic proceedings had not yet been concluded at the time of the Court’s judgment

Version: October 2012

Proceedings,	Judgement of	Domestic proceedings	Continuation of proceedings/current status
Proceedings currently still pending:
No. 43155/08	21 October 2010	Munich Higher Regional Court	The Higher Regional Court partly granted the applicant’s action by judgment of 17 November 2011, which is final. However, the Higher Regional Court remitted the dispute to Munich I Regional Court for a renewed trial and ruling as to the amount of material damage suffered by the applicant. The complaint against non-admission lodged against this to the Federal Court of Justice by the respondent was dealt with by order of 24 April 2012. The written statement of counsel for the defendant was received on 18 September 2012 and was immediately forwarded to counsel for the plaintiff. The judge dealing with the case worked through the files during her holiday; the chamber is currently preparing to set a date for the settlement hearing. In this respect, counsel for the plaintiff has stated that the plaintiff is unavailable for the period from 7 January to 5 February 2013.
No. 32338/07	30 March 2010	Landau/Pfalz Regional Court, Palatinate Higher Regional Court Zweibrücken	A judgment was handed down by the Regional Court on 13 January 2011. An appeal on points of fact and law was filed with Zweibrücken Higher Regional Court against this judgment. A hearing took place on 23 November 2011. The parties did not accept a settlement proposed by the Senate. The plaintiffs subsequently submitted a new statement on the facts. Thereupon, an order on the taking of evidence was handed down on 3 August 2012 to commission an expert report on the accident. The report is currently being drawn up by an expert witness. The proceedings before the Higher Regional Court are still pending.
No. 32936/09	21 October 2010	Darmstadt Regional Court	After necessary expert reports had been obtained and various statements had been submitted, a settlement was reached on 15 August 2012, which was however withdrawn by the respondent. The Regional Court handed down a judgment on 12 December 2012. After an appeal on points of fact and law had been lodged, the case is now pending at second instance with Frankfurt am Main Higher Regional Court.
No. 53550/09	20 October 2011	Cottbus Social Court, Berlin-Brandenburg Regional Social Court	An appeal on points of fact and law was lodged on 7 July 2010 against the judgment of the Social Court. On application by the plaintiff, the Regional Social Court commissioned an expert report. The expert witness acknowledged the existence of an occupational disease, but with no pension entitlement. After the respondent had made a statement, an additional statement was requested from the expert witness. The proceedings before the Regional Social Court are still pending because of the need to consult an additional expert report.
No. 40009/04	7 January 2010	Public liability proceedings Wiesbaden Regional Court (7 O 58/98 and 9 O 283/11)	A judgment was handed down before Wiesbaden Regional Court on 18 May 2012. The judgment has however not yet gained legal force, given that an appeal on points of fact and law has been lodged. The proceedings for the appeal on points of fact and law are continuing.
Proceedings which have now been concluded with legal force:
No. 27529/09	16 December 2010	Hanover Social Court/Lower Saxony Regional Social Court	The Regional Social Court amended the judgment of Hanover Social Court of 26 September 2007 on 12 May 2010 and sentenced the defendant to rule anew on the applicant’s hardship application, taking account of the court’s legal opinion. On 9 February 2011, the Federal Social Court rescinded the judgment of the Regional Social Court of 12 May 2010 and remitted the case to the Regional Social Court. The Regional Social Court ruled once more on 21 March 2012; same content as in the judgment of 12 May 2010. The Federal Social Court rejected the complaint against non-admission (B 6 KA 24/12B) submitted by the plaintiff on 11 June 2012 with order of 12 December 2012. The proceedings are hence concluded with legal force
No. 1479/08	23 April 2009	Göttingen Regional Court	The proceedings were concluded with final and binding force by judgment of the Regional Court of 28 May 2009. The appeal on points of law only was not admitted by the Higher Regional Court.
No. 11811/10	30 June 2011	Berlin-Brandenburg Higher Administrative Court	Judgment of Berlin Administrative Court of 21 July 2010 (VG 19 A 159.07). On 2 October 2012, Berlin-Brandenburg Higher Administrative Court rejected the motion to admit the appeal on points of fact and law (OVG 2 N 88.10). The proceedings have hence been concluded with legal force since 2 October 2012.
No. 71972/01	11 June 2009	Munich Labour Court and Munich Regional Labour Court	The proceedings were concluded by the judgments of Munich Labour Court in July 2010 and of the Regional Labour Court in February 2011.
No. 37111/04	29 September 2011	Munich Labour Court (27 Ca 915/91 new 27 Ca 7831/00), Munich Regional Labour Court (3 Sa 1281/05) Proceedings relating to night work allowances for the period from 1 July to 31 December 1988 (approx. 1,950 EUR) and the refund of the costs of a trip to Paris (approx. 220 EUR).	Main case: Judgment of Munich Regional Labour Court of 3 May 2004: action rejected; Appeal on points of fact and law dealt with by final judgment of 25 August 2006; Legal aid application rejected (5 AZA 15/06) to make a complaint against non-admission by order of 20 February 2007. Hence concluded with legal force since 25 August 2006 Taxation of costs: Order fixing costs of 7 March 2008; Complaint (10 Ta 391/08) rejected by order of 25 September 2008; concluded with legal force after rejection of the complaint because of the right to be heard lodged after several motions of challenge with order of 15 February 2010

No. 3810/06	13 October 2011	Munich Labour Court (8 Ca 20737/93 new most recently: 8 Ca 7395/03 of which separation 8 Ca 16686/07 on 12 December 07) Munich Regional Labour Court (11 Sa 78/08 and 11 Sa 77/08, 3 Sa 126/09) Applicant requested submission of accounts for all salaries which his employer was said to owe to him for the period from 1 July 88 to 31 December 93, the payment of the salaries for this period, as well as a finding that RFE/RL was obliged to pay to him his salary from 1 July 88.	Main case: 8 Ca 7395/03: judgment of 12 December 07; appeal on points of fact and law (11 Sa 77/08) rejected with order of 16 December 09. Hence concluded with legal force since 16 December 2009. Complaint against rejection of legal aid (11 SHa 3/08 = 10 Ta 471/10) dealt with by order of 5 October 2012 8 Ca 16686/07: 1. partial judgment of 12 December 07 = 11 Sa 78/08, hence finally dealt with since 16 December 09 2. residual claims: withdrawal and hence final since 3 May 10 3. of which separated on 22 December 08 = 8 Ca 308/09: 8 Ca 308/09: Appeal on points of fact and law lodged against judgment of 22 December 08 (3 Sa 126/09). Concluding judgment of 9 July 10 (5 AZN 1141/10). final since 26 January 2011. Taxation of costs: In 8 Ca 308/09: Immediate complaint of 5 September 12 against last cost finding for 3rd instance = 10 Ta 307/12, concluded with legal force since 4 October 2012
No. 32637/08	13 October 2011	Munich Labour Court (7a Ca 16489/97); Munich Regional Labour Court (4 Sa 533/05) Action for a finding that employment had not been dissolved by dismissal, as well as for further employment, compensation and continued wage payment and granting of an additional pension payment	Main case: Judgment of Munich Labour Court of 11 August 2004, appeal on points of fact and law concluded with final judgment of 19 July 2007, Complaint against non-admission (2 AZN 415/08) is rejected with order of 28 August 2008 Hence concluded with legal force since 28 August 2008 Taxation of costs: Order fixing costs of 30 June 2009 Complaint (10 Ta 98/09) rejected with order of 30 June 2009, Hence concluded with legal force since 30 June 2009 Order fixing costs corrected with order of 3 June 2011 The proceedings have been fully concluded.
No. 485/09	25 March 2010	Hanover Regional Court	Proceedings concluded with legal force by judgment of Hanover Regional Court of 2 March 2010
No. 54188/07	30 March 2010	Munich Regional Court; Munich Higher Regional Court; Nuremberg Higher Regional Court	The proceedings before Nuremberg Higher Regional Court were concluded by settlement of 2 November 2010.
No. 38187/08	18 November 2010	North Rhine-Westphalia Regional Social Court	The proceedings before the Regional Social Court were concluded by a settlement on 28 November 2011.

Resolution CM/ResDH(2013)245
16 cases against Hungary

Execution of the decisions of the European Court of Human Rights

Application No.	Case	Date of the decision
23955/10	PÖLÖSKEI	25/06/2013
25134/10	CF MODELL KFT	25/06/2013
27624/10	VÉGH	25/06/2013
33987/10	HROTKÓ AND OTHERS	25/06/2013
38549/10	DEÁK	25/06/2013
49471/10	LICZ	25/06/2013
49490/10	OLÁH	25/06/2013
21819/11	V.F.E.	04/06/2013
22256/11	K.I.	04/06/2013
22280/11	Ko.I.	04/06/2013
23174/11	POLGÁR	04/06/2013
33820/11	SOPRONI	04/06/2013
42357/11	M.P.	04/06/2013
74144/12	BERA	04/06/2013
76627/12	TERJÉK	25/06/2013
408/13	PETHŐ AND OTHERS	25/06/2013

(Adopted by the Committee of Ministers on 5 December 2013
at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlements were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close their examination.

Resolution CM/ResDH(2013)246
Eight cases against Poland

Execution of the decisions of the European Court of Human Rights

Application No.	Case	Date of the decision
19354/09	SNOPEK	21/05/2013
39863/09	JĄKALSKI	02/04/2013
36618/10	PACHNICZ	19/03/2013
43481/10	WIŁKOJĆ	21/05/2013
71157/10	MOTYLSKI	02/04/2013
42365/11	ŚCIRKO	02/04/2013
44883/11	BAT	02/04/2013
5883/12	KALKOWSKI	09/04/2013

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlements were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close their examination.

Resolution CM/ResDH(2013)247
Rosenzweig and Bonded Warehouses Ltd against Poland

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

51728/99

ROSENZWEIG AND BONDED WAREHOUSES LTD.

28/07/2005

05/06/2012

30/11/2005

22/10/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT[2]

Information on measures aiming at execution of the judgment

in the case of Rosenzweig and Bonded Warehouse Ltd. against Poland

Case description

Rosenzweig and Bonded Warehouse Ltd. v. Poland, application no. 51728/99, judgment on merits of 28/07/2005, final on 30/11/2005, judgment on just satisfaction of 05/06/2012, final on 22/10/2012.

The case concerns the disproportionate control of the use of the applicants' property. in 1994, the applicant company was granted a licence to run a bonded warehouse in Słubice and in June 1995 a further permit was issued for exporting merchandise via the border crossing in this town. In November 1995, the export permit was revoked and the customs officers ordered that the headquarters of the applicant company be closed and sealed the door, preventing it from conducting further business. Subsequently the validity of that permit was re-examined several times. Later on a new set of proceedings was instituted in which authorities revoked the licence granted in 1994. Ultimately, the decisions on revocation of the licence to run a bonded warehouse in Słubice of 18 February 1994 and of the permit for exporting merchandise of 1 June 1995 were set aside as being not in accordance with domestic law by the Main Customs Office.

The European Court observed that the withdrawal of valid permits to run a business was an interference with the right to the peaceful enjoyment of possessions. It further noted that the withdrawal of the June 1995 license and the ensuing proceedings in which the validity of that permit was re-examined several times made it impossible for the business to operate. The European Court found that the authorities had not shown that there had been any suspicion that the operation of Bonded Warehouses Ltd was in any way unlawful or dishonest, or that the applicants had been involved in any attempt to evade customs. The European Court concluded that it had not been shown that the authorities followed any genuine and consistent policy considerations when revoking and changing their decisions concerning the operation of Bonded Warehouses Ltd. (violation of Article 1 of Protocol 1).

I. Payment of just satisfaction and individual measures

1. Just satisfaction

In its judgment of 05/06/2012 the European Court awarded the first applicant – Mr. Bronisław Rosenzweig 5,000 EUR as just satisfaction in respect of non-pecuniary damage and 10,000 EUR to both applicants in respect of costs and expenses. Both amounts were paid within the time-limit.

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total amount
-	5,000 EUR	10,000 EUR	15,000 EUR
Paid on 04/01/2013

2. Individual measures

The decisions revoking the licence to run a bonded warehouse in Słubice of 18 February 1994 and of the permit for exporting merchandise of 1 June 1995 were set aside. Nevertheless, the applicant company did not resume its operations afterwards.

The applicants instituted the proceedings for just satisfaction claims before the domestic courts in 1996 on the basis of the same facts as invoked in the case before the European Court. By a judgment of 31 December 2007 the domestic court dismissed their compensation claim on the ground that the applicants had failed to submit evidence that they had suffered damage as a result of the decisions concerned (paragraph 16 of the judgment of 05/06/2012).

Also in the proceedings before the European Court the applicants claimed compensation in the amount of 8.000.000 EUR, in particular for lost profits which they could have derived from the company’s operation, lost merchandise and significant expenditure they had incurred in connection with setting up their business.

The European Court, in its judgment of 05/06/2012 on just satisfaction, dismissed the applicants` claims in respect of pecuniary damage as they had not been duly documented, despite the Court’s efforts to assist the applicants. In its assessment of the pecuniary damage the European Court had regard to the applicants’ conduct in the proceedings leading to the adoption of the judgment on just satisfaction: notwithstanding its request to the parties to agree on the appointment of an independent expert who would submit a report to the Court the applicants did not comply with that suggestion. Moreover, they declined the Government’s offer to pay the costs of an independent expert with a view to preparing a report on the pecuniary damage suffered by the applicants without cogent reasons for this refusal. The applicants also refused to submit their own expert estimates of the pecuniary damage within additional time limit. The European Court further noted that the estimates furnished by the applicants involved a significant degree of speculation (paragraphs 37-43 of the judgment of 05/06/2012).

Taking these circumstances into consideration, any measures of an individual nature do not appear necessary.

II. General measures

The case seems to be a one-off historic case, resulting from the incorrect practice of the state authorities, in particular the local customs office. The revocation of the permit and the license was not in conformity with applicable laws and was ultimately set aside by the Main Customs Office (see: individual measures). In order to prevent similar violations occurring in the future translation and dissemination of the judgment should be sufficient.

In this respect it should be noted that the Court’s judgment was translated into Polish and published at the website of the Ministry of Justice. The judgment was also disseminated among judges of the administrative courts and the Ministry of Finance arranged for dissemination of the judgment via the customs administration throughout the country. On 08/03/2006 the Customs Department of the Ministry of Finance wrote to directors of customs administration enclosing the judgment together with a summary of its main conclusions.

Taking these circumstances into consideration, additional measures of a general nature do not appear necessary.

III. The conclusions of the respondent state

The government considers that further measures on an individual basis are not necessary in this case and that the adopted measures of a general nature will be sufficient to say that Poland fulfilled its obligations under Article 46 paragraph 1 of the Convention.

Resolution CM/ResDH(2013)248
Bar-Bau Sp. z o. o. against Poland

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
11656/08	BAR-BAU SP. Z O. O.	10/04/2012	10/04/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Information about the measures to comply with the judgment in the Bar-Bau v. Poland case

(anglais uniquement)

Case description

Bar-Bau, application No. 11656/08, judgment of 10/04/2012, final on 10/04/2012

The case concerns the Supreme Court`s refusal in 2007 to allow a cassation appeal in the civil proceedings initiated by the applicant, a limited liability company, against the State Treasury for damages caused by criminal proceedings instituted against its president..

The Regional Court refused the civil claim and this judgment was upheld on appeal; the applicant lodged a cassation appeal on points of law. The Supreme Court sitting as a single judge in camera refused to allow it, concluding that none of the conditions of admissibility of a cassation appeal was met in this case. However, it made a full analysis only of one of the grounds for admissibility of the cassation appeal - the alleged problem of the existence of an important question of law, leaving without further consideration the second ground that was of crucial importance for the applicant in the particular circumstances of the case – a need for interpretation of the question of law. The Supreme Court confined itself to finding that there was no need to proceed with interpretation of the provisions governing the responsibility of the state (Article 417 and 418 amended former Civil Code) and no issue arose as to its application.

The European Court noted that such a choice of the Supreme Court had placed the applicant in a situation of legal uncertainty. Indeed, the facts in support of the second ground and the proceedings that followed had taken place during a transitional period between the finding of invalidity of the legal framework governing the responsibility of the Treasury and its amendment by the legislature. The legislative change had placed the applicant at a disadvantage and therefore it had seemed legitimate for the applicant to get a clear answer to a new question of law, suffering from a lack of uniform interpretation by the courts. In such circumstances the Court noted that the merits of the second ground of cassation appeal were of some importance to the applicant company.

In light of these considerations, and taking into account the particular circumstances of the case, the European Court found that the failure to give reasons for refusing the cassation appeal to the applicant company was not proportionate to the aim of ensuring legal certainty and proper administration of justice (violation of Article 6 § 1 of the Convention).

I. Individual measures

1. Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
-	4,000 EUR	-	4,000 EUR
Due on: 10/07/2012 Paid on 28/06/2012

2. Other individual measures

Reopening of the domestic civil proceedings in order to lead to restitutio in integrum is not possible in this case because of the importance attached by the domestic legislation to the principle of the legal security, also protected by the European Convention.

In any case, the Government recalls that the applicant has not requested any just satisfaction for pecuniary damage, and that the Court has granted a just satisfaction for the non-pecuniary damage sustained. If nevertheless, in the applicant`s opinion, the consequences of violation found in this case are not adequately remedied by the award of just satisfaction by the European Court it may submit a claim for compensation against the State Treasury for the so-called “court unlawfulness” in relation to the Supreme Court`s decision on refusal to allow the applicant`s cassation appeal, pursuant to articles 4171 § 2 and 4241b of the Civil Code. This claim would refer to the Supreme Court`s decision of 08/08/2007, which “unlawfulness” was confirmed by the European Court in the judgment of 10/04/2012.

In these circumstances, no other individual measure appears necessary.

II. General measures

The violation in this case arose from an isolated decision by a single Supreme Court`s judge. The President of the National Council of the Judiciary of Poland received the judgment and was asked to disseminate it amongst the judges of the Supreme Court.

In addition, the judgment, as many of the other European Court’s judgments, was included in the curricula of the trainings for judges and prosecutors carried out by the National School of Judiciary and Public Prosecution.

In this regard, particular attention should be drawn to the set of systemic trainings held in 2012. These trainings were organized for judges of appellate courts and designed to inform about the most common violations of the Convention concerning the Polish justice system. Approximately 700 judges took part in these trainings so far. The trainings will continue throughout 2013 and in subsequent years. It is estimated that in five to seven years all judges should have undergone such training.

Moreover, the European Court`s judgment in the case of Bar-Bau was translated and published at the website of the Ministry of Justice (www.ms.gov.pl).

In these circumstances, no other general measure appears necessary.

III. Conclusions of the responding State

The Government consider that further individual measures are not necessary in the present case and that the general measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.

Resolution CM/ResDH(2013)249
Pontes against Portugal

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
19554/09	PONTES	10/04/2012	24/09/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Bilan d’action concernant l’exécution de l’arrêt de la Cour européenne des droits de l’homme

dans l’affaire Eugénio Manuel Paulino Pontes et Francisca Alexandra Ganchinho Garcês Pontes

(Requête n° 19554/09)

(French only)

I – IDENTIFICATION DE L’AFFAIRE

Date de l’arrêt : 10 avril 2012 (le 24/09/2012 le recours exercé devant la Grande Chambre a été rejeté)

Nº de la requête : 19554/09

Nom des requérants : Eugénio Manuel Paulino Pontes et Francisca Alexandra Ganchinho Garcês Pontes

Brève description de la violation :

Violation de l’article 8 de la Convention (droit au respect de la vie familiale) ayant trait à la procédure de protection (processo de promoção e protecção de crianças e jovens em risco) engagée devant le tribunal aux affaires familiales de Vila Franca de Xira, à l’issue de laquelle un jugement a été rendu ordonnant la déchéance de l’autorité parentale à l’égard de l’un des enfants des requérants et le placement de celui-ci dans une institution en vue de son adoption. Le constat de violation a été fondé à la fois sur l’interdiction des visites des parents à l’égard de l’enfant mineur au cours de l’instance d’appel de ce jugement (avec effet suspensif) et le désaccord avec les motifs du jugement, notamment en ce qui concerne la vulnérabilité particulière du mineur invoquée.

II - MESURES DE CARACTÈRE INDIVIDUEL :

a) Paiement de l’indemnisation :

Date : 21/11/2012

Montant : 37 500 euros

b) Autres : les autorités portugaises estimentqu’il ne s’avère pas nécessaire d’adopter d’autres mesures de caractère individuel, étant donné la situation actuelle de l’enfant mineur - âgé de 11 ans et adopté depuis 2009 - et son intérêt supérieur, et vu que l’arrêt de la Cour européenne des droits de l’homme a débouté les requérants de leur demande, au titre de l’article 46 de la Convention, d’annulation du jugement interne ayant prononcé l’adoption (voir paragraphes 108 à 110 de l’arrêt de la Cour). Par le paiement de la somme susmentionnée, les requérants ont été totalement dédommagés de tous les préjudices subis.

La loi interne – article 771, alinéa f), et article 772 du Code de procédure civile – prévoit la possibilité générale, dans les affaires en matière de droit civil, de l’ouverture d’un recours en révision contre une décision interne lorsque celle-ci est inconciliable avec une décision définitive d’une juridiction internationale de recours, contraignante pour l’État portugais. Ce recours en révision doit être présenté dans un délai de 60 jours à compter de la date laquelle la décision de la juridiction internationale est devenue définitive. Cependant, il faut aussi réitérer que dans la présente affaire, la Cour elle-même a rejeté la prétention des requérants, au titre de l’article 46 de la Convention, quant à l’annulation du jugement ayant prononcé l’adoption de l’enfant.

Le formulaire contenant l’information concernant le paiement de la satisfaction équitable a été fourni au Secrétariat.

III - MESURES DE CARACTÈRE GÉNÉRAL :

a) Publication, communication et diffusion : l’arrêt a été mis en ligne sur le site officiel de la « Procuradoria-Geral da República » - Cabinet de documentation et droit comparé. Il a été traduit en langue portugaise et transmis à la « Procuradoria-Geral da República » et au Conseil supérieur de la magistrature, en vue de sa diffusion auprès des magistrats exerçant leurs fonctions aux tribunaux aux affaires familiales. Il a également été transmis au Centre d’études judiciaires afin de l’inclure dans le programme d’actions de formation des magistrats, ayant déjà fait l’objet d’un examen spécifique lors de l’action de formation qui a eu lieu le 21 décembre 2012, et au Président de la Commission nationale de protection des enfants et des jeunes en situation de risque (Comissão Nacional de Proteção das Crianças e Jovens em Risco) (organisme de coordination des Commissions de protection des mineurs) à qui il a été demandé d’y porter une attention particulière et de le diffuser (en particulier concernant le contenu des paragraphes 85 à 93 de l’arrêt).

IV - CONCLUSION

Compte tenu de ce qui précède, les autorités portugaises estiment qu’il n’y a pas lieu d’adopter d’autres mesures de caractère individuel ou général.

Resolution CM/ResDH(2013)250
Eleven cases against Romania

Execution of the decisions of the European Court of Human Rights

Application No.	Case	Date of the decision
6359/03+	TILEA AND TUDOR	26/03/2013
8712/06	MĂRCUŞ	14/05/2013
38984/06	BORŞ	14/05/2013
518/07	COLŢOI	18/06/2013
28128/07+	MAZILU AND ARHIRE AND OTHERS	12/03/2013
27739/08	EVALDI	09/04/2013
28951/08	BOBEŞ AND OTHERS	18/06/2013
49496/09	IGNAT	14/05/2013
60801/09	RĂILEANU	09/04/2013
5251/11	MAGALETTO	26/03/2013
56525/11	CĂPĂŢîNĂ	26/03/2013

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlements were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close their examination.

Resolution CM/ResDH(2013)251
Paoloniagainst San Marino

Execution of the decision of the European Court of Human Rights

Application No.	Case	Date of the decision
41045/10	PAOLONI	27/03/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Considering that in this case the Court, having taken formal note of the friendly settlement reached by the government of the respondent State and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided to strike this case from its list;

Having satisfied itself that the terms of the friendly settlement were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close its examination.

Resolution CM/ResDH(2013)252
Aydemir against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
17811/04	AYDEMIR	24/05/2011	24/08/2011

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of the European Court of Human Rights

Judgment in the case of Aydemır / Turkey (17811/04) dated 24 May 2011

ACTION REPORT

A. FACTS

On 13 March 2001, a search warrant was issued in respect of forty three houses situated near the Aydın Prison. The searches were intended to prevent any assistance being provided to escaping prisoners via a tunnel. An additional search warrant was issued in respect of six addresses including the applicants’ house. The applicants indicated that the searches had not been conducted in accordance with the domestic law on the ground that they were conducted in the absence of a judge or another official prescribed by law. Even the applicants themselves had not had the opportunity to see the content of the search warrant. According to the applicants, the search warrant had been vaguely worded and was issued without solid evidence required by the measure in dispute. Therefore, according to the applicants, there was a violation of their right to respect for their home set out in Article 8 of the European Convention of Human Rights (ECHR).

B. CONTENT OF THE JUDGMENT

The Court found that there had been a violation of Article 8 of the ECHR. In reaching this conclusion the Court held that the search of the applicants' home had not been ordered in the context of a criminal investigation or criminal proceedings against one of the family. It had not been established, or even alleged, that the applicants had been suspected of any offence. The search conducted at the applicants’ home was in fact part of a massive police operation, systematically affecting every home located in the immediate vicinity of the prison.

The Court further noted that the search warrant had been vaguely worded. It provided no information on the reason for the measure or the objects to be sought, and thus granted the police officers wide powers. Yet a search warrant was required to contain a minimum of information allowing for review of whet her the officers who executed it had respected the warrant's scope. The search had been conducted in the absence of a judge or of a local councillor, in violation of Turkish law. Finally the Court noted that the prosecutor had merely gathered statements from the police officers, and accepted them without reservation. He had not submitted this question to further exanimation, which would have indicated a genuine willingness to establish the facts. Nor had the criminal proceedings done so.

C. INDIVIDUAL MEASURES:

Just satisfaction

The just satisfaction amount awarded by the Court has been paid to the applicants in due time and the documents indicating payment have been submitted to the Department of the Execution of Judgments. There is no other individual measure to be taken in the present judgment.

D. GENERAL MEASURES:

1. Translation and publication of the judgment:

The judgment of the Court in the case of Aydemır was translated into Turkish and published on the website of the Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/aydemir.pdf.

2. The circulation of the judgment to the relevant authorities:

The translated judgment was circulated to the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the court that rendered the judgment.

3. Legislative arrangements:

The former Code of Criminal Procedure (Law No. 1412) which was in force at the time of the incident was abolished on 1 June 2005. On the same date, the new Code of Criminal Procedure (CCP) (Law No. 5271) came into force, which sets out new standards for the protective measures including the search procedure.

The provisions of the abolished Code of Criminal Procedure regarding the search procedure were regulated in Articles 94 to 104. In these articles, procedural requirements in issuing a search warrant, persons to be present in the course of a search, the procedures to be followed during a search conducted at midnight were set out. However, the relevant articles did not include the points stated in the Court's Aydemır judgment.

In the current CCP (Law No. 5271), the search measure is regulated in a substantially detailed manner as the other protective measures. Article 119 of the CCP provides who may issue a search warrant and the elements that need to be included in a search warrant.

The search warrant or order shall clearly include;

a) justifying reasons;

b) the person with respect to whom the search shall be conducted, the address of the dwelling or the place to be searched, or the material that is to be searched;

c) the validity period.

Furthermore, in the Regulations on Judicial and Preventive Searches which was published in the Official Gazette and entered into force on the same date as the CCP, provisions on search measure is regulated in a more detailed manner than in the CCP. Thus, as also stated in the Court's judgment, a control mechanism is established allowing for the authorities to verify whether there has been compliance with the details indicated in the search warrant.

According to the Regulation, a search warrant may be issued for a person, only on condition that there is a reasonable doubt. Taking the right to respect for private and family life into consideration, the concept of reasonable doubt has been subjected to strict conditions.

According to the Article 6 of the Regulation.

"Reasonable doubt is the general doubt against substantial facts with respect to flow of life. Reasonable doubt is determined by taking all the circumstances into account such as date and place of the search, conduct of the related person and others accompanying him, and qualification of the material searched by the authorities.

Reasonable doubt must be based on incriminating information and other indications supporting the complaint.

Doubt must be based on substantial facts.

Substantial facts, which require envisaging that a certain thing will be found after the search and a certain person will be arrested, must exist."

It is the judge who has the power to decide on a judicial search, under Article 7 of the above mentioned Regulation. Furthermore, when police officers claim to have a search warrant issued, they must apply to the public prosecutor after preparing a detailed and justified report indicating the causes of the reasonable doubt.

Article 12 of the Regulation sets out the requirements to be submitted after the search, upon the request of the person in respect of whom a search warrant has been issued. This Article reads as follows:

"At the end of the search conducted according to the Article 7, upon the request of the person who has been searched document or documents which include the following information shall be given to him/her;

a) whether the search has been conducted

1) for the reason that the person is a suspect or accused, and there is reasonable suspicion regarding that she/he might he caught or that evidence of crime might be obtained,

2) for the aim that the suspect or accused to be caught or that evidence of crime to be obtained,

b) nature of the crime subject to investigation or prosecution in the case that the suspect or accused in respect of whom there is reasonable suspicion that she/he might be caught or evidence of crime might be obtained through search of the person herself/himself, properties, house, workplace or other places belonging to her/him,

c) list of material that is confiscated and taken under protection,

d) the case in which nothing has been obtained to prove the suspicion to be right,

e) opinion and submissions of the person who has been searched regarding the ownership of the confiscated material,

An important point required to be mentioned here is that what will be about the position of the public officials conducting the search unlawfully. According to the Article 120 of the TCC (Turkish Criminal Code) (Law No. 5237) that came into force after the Court judgment in the case of Aydemır v. Turkey,

"A public official who performs an unlawful search on a person or on his personal belongings, shall be sentenced to imprisonment for a term of three months to one year."

It is clearly seen that, the provisions of the CC P (Law No. 5237) and the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward in the Court's case law, and in the manner to protect individuals against arbitrary intervention of police officers.

4. Training and Awareness Raising Activities:

On 15-17 November 2011, a High Level Conference followed by a two-day workshop was organised by the General Directorate of International Law and Foreign Affairs. In this Conference, 6 working groups were established in the context of articles of the ECHR in order to identify the problems and possible solutions in the light of the Court's case-law. In one of the working groups in which the legislation concerning right to respect for private and family life set out in Article 8 of the ECHR and the problems encountered in practice were discussed, legislative and practical aspects of the problem were elaborated. In the working group which consisted of representatives of the Court of Cassation, the Council of State, various departments of the Ministry of Justice and representatives of other relevant institutions, proposed solutions in line with the Court's jurisprudence with respect to the search measure were submitted. It was concluded that the problem had been originated from the practice following new legislative arrangements and, therefore, that training activities raising awareness would need to be given priority.

In this context, the High Council of Judges and Prosecutors (HCJP) and the Justice Academy held a symposium on 12 March 2012, on the application of the protective measures and the jurisprudence of the Court, for the first time following the establishment of the tribunals authorised under the Article 250 of the CCP, with the participation of judges and prosecutors taking office in these tribunals. Between 13 and 22 March 2012, judges and prosecutors taking office in these courts participated in vocational training in which the subjects of the symposium were deliberated in detail.

The symposium started with the speeches of the President of the Justice Academy, the Vice President of the HCJP and the Minister of Justice, and ended with two sessions themed "the Practices of the Search Measures in the light of the Practices of the European Court of Human Rights" and "Freedom of Expression and Responsibility of the Media in the light of the Judgments of the European Court of Human Rights". Outstanding academicians of the country, representatives of supreme judicial authorities, a journalist, a judge hearing relevant cases in Italy and a Head of Turkish Division of the Court participated and made presentations in the seminar which lasted one day.

Moreover, common Project with the Council of Europe on "the Improvement of the Criminal justice System" aims to improve the Criminal Justice System of Turkey and to improve the implementation of human rights standards in practice.

During the course of the Project, study visits will be made to pilot courts in respect of protective measures which also include the search procedure. Training curriculum will be prepared for the Justice Academy and seminars will be organised.

E. Execution of the Judgment:

As stated above, owing to the fact that the individual and general measures necessary for the execution of the judgment in question are taken, it is considered that the Turkish Government has fulfilled its obligations set out in the Aydemır judgment. Therefore the Committee of Ministers is invited to close its examination.

Resolution CM/ResDH(2013)253
H.M. against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
34494/97	H.M.	08/08/2006	08/11/2006

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of the European Court of Human Rights Judgment

in the case of H.M. v. Turkey (No. 34494/97) dated 8 August 2006

ACTION REPORT

I. FACTS

On 15 March 1996, at about 12.30 a.m., four individuals in civilian clothing, who introduced themselves as police officers, went to the applicant's home. Accusing the applicant and one of his sons of illegal activities and of harbouring criminals, they searched the house without presenting a search warrant. Considering that he had been subjected to an unlawful search, the applicant lodged a complaint on the same day; a witness statement was taken from him immediately. On 20 March 1996 the public prosecutor ruled that there was no case to answer, given the "absence of an act constituting any offence", on the ground that, according to information provided by various police departments, no search of property or persons had been carried out at the applicant's home. The latter appealed unsuccessfully against that decision.

On 4 October 1996, the applicant lodged an application with the European Court of Human Rights ("the Court") and stated that his right to respect for his home, safeguarded by Article 8 of the European Convention of Human Rights ("the Convention") had been violated on account of an unlawful search and subsequent lack of an effective and efficient investigation into his complaint.

II. JUDGMENT

Having regard to the obligation to carry out an investigation laid down by Article 8, the Court considered that, once application had been made to it, the public prosecution service ought to have examined the applicant's complaint in such a way as to demonstrate at least a willingness to establish the facts, then to identify those responsible. In those circumstances, the Court considered that the applicant could claim to be a victim of a failure to protect his right to respect for his home and concluded that there had been a violation of Article 8.

The Court rejected the applicant's request for non-pecuniary damage on the grounds that the finding of a violation in itself constituted sufficient just satisfaction and awarded him 1 000 euros (EUR) for costs and expenses.

III. INDIVIDUAL MEASURES

Just satisfaction

The just satisfaction amount awarded by the Court has been paid to the applicant. The relevant documents indicating payment have been submitted to the Department of Execution of Judgments on 27 February 2007. The Government submits that no further individual measure is necessary in the present judgment.

IV. GENERAL MEASURES

A. Translation and Publication of the Judgment

The judgment of the Court in the case of HM. v. Turkey has been translated into Turkish and published on the official website of the Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/hm2006.pdf.

B. Circulation of the Judgment to the Relevant Authorities

The translated version of the judgment has been disseminated among the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the relevant Chief Public Prosecutor's Office that had rendered the judgment.

C. Legislative Arrangements

The Code of Criminal Procedure (CCP) Law No. 1 41 2, which was in force at the time of the incident that is the subject matter of the application, was abolished on 1 June 2005. On the same date, the new Code of Criminal Procedure (CCP) Law No. 5271 came into force, which sets out new standards for the protective measures including the search procedure.

The provisions of the abolished CCP regarding the search measure were regulated under Articles 94 to 104. In these articles, the procedures in respect of the authority to issue a search warrant, persons to be present in the course of a search, procedures to be followed during the night searches were set out. Article 97 § 1 of the Law regulated that the police officers could conduct a search in urgent circumstances. However, the relevant articles did not include details that should be included in a search warrant.

In the current CCP (Law No. 5271), the search measure has been -regulated in a substantially detailed manner as other protective measures. According to Article 116 of the current CCP, in cases where there is a reasonable doubt that the suspect or the accused may be arrested, or evidence of crime may be obtained, then a body search and a search of the belongings, or a search at home or work or at other premises of the suspect or the accused may be conducted upon a decision delivered by the relative judge; in urgent circumstances, it may be conducted upon Public Prosecutor's decision. Article 118 provides that person's home or work, as well as other premises that are covered, may not be searched at night. This provision is not applied in cases where the suspect is apprehended in the act or where delay would be detrimental or in cases where the suspect is re-apprehended after a previous escape from custody or detention on remand or in case the person is a convict who escaped du ring the execution of sentence.

Article 119 of the CCP stipulates who might issue a search warrant and the elements to be included in a search warrant. Accordingly, a search warrant or order shall clearly include the following elements:

a) The act that constitutes the ground for search,

b) The name of the person with respect to whom the search shall be conducted or the item/hat is to be searched, as well as the address of the place to be searched,

c) Validity period of the search warrant or order.

Furthermore, in the Regulation on Judicial and Preventive Searches which was published in the Official Gazette on the same date as the CCP (1 June 2005), which thus entered into force, the search measure was regulated in a more detailed manner than the CCP. Consequently, as also held in the judgment of the Court, conduct of the police officers, in particular whether they comply with the information given in the search warrant can be supervised.

According to the Regulation, a search warrant may only be issued for a person if there exist a reasonable doubt on an offence. Taking the rights of individuals into consideration, the Regulation subjects the concept of reasonable doubt to strict conditions.

Article 6 of the Regulation states,

"A reasonable doubt is the general doubt against substantial facts with respect to flow of life.

A reasonable doubt is determined by taking the circumstances into account such as the date of the search, the behaviours of the related person and others accompanying him, place and qualification of the material which the police officer doubts that is being carried.

A reasonable doubt should include indications which support the denouncement and complaint.

The doubt should be based on substantial facts.

Substantial facts, which require envisaging that a certain material will be found and a certain person will be arrested after the search, must exist."

The competent judicial authority shall decide whether to conduct a search, under Article 7 of the Regulation mentioned above. In this regard, the police officers shall apply to the public prosecutor after preparing a detailed and justified report indicating the causes of the reasonable doubt in order to have a search warrant issued.

Article 12 of the Regulation sets out the required information to be stated in the document that is to be submitted after the search, upon the request of the person in respect of whom a search warrant has been issued. This Article reads as follows:

"At the end of the search conducted under Article 7 and upon the person's request, a document including the following information shall be given to the person who has been the subject matter of the search;

1) whether the search has been conducted

a) for the reason that the person is a suspect or accused, and that there is a reasonable doubt regarding that s/he might be caught or that evidence of crime might be obtained,

b) for the objective that the suspect or accused to be caught or that evidence of crime to be obtained,

2) the nature of the crime leading to the investigation or prosecution in the case that the suspect or accused in respect of whom there is a reasonable doubt that s/he might be caught or the evidence of the crime that might be obtained through search of that person, his/her property, home, workplace or other locations belonging to her/him,

3) list of goods that are confiscated and taken under protection,

4) the information as regards the .fact if nothing has been obtained to prove the suspicion to be right,

5) opinion and allegations of the person who has been searched regarding the ownership of the confiscated property".

It is clearly seen that the provisions of the CCP Law No. 5271 and the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward in the Court's case law, and in the manner to protect individuals against arbitrary intervention of police officers.

An important point to be mentioned here is Article 1 20 of the TCC (Turkish Criminal Code) Law No. 5237 that came into force after the Court's judgment in the case of H.M. which provides the procedure to be followed against the public officials conducting an unlawful search:

"A public official who performs an unlawful search on a person, or of his personal belongings, shall be sentenced to imprisonment for a term of three months to one year."

According to this article, police officers will not be able to conduct a search, unless there is a duly regulated search warrant. Their contrary behaviour will be investigated by prosecution notwithstanding the existence of a complaint and they will be subjected to criminal proceedings. Legislative amendments concerning the search measures have also been applied by the Supreme Courts. In a judgment of the Assembly of the Criminal Chambers of the Court of Cassation, dated 17 November 2009, it has been held that a search could only be conducted upon the judge's decision, and that a search conducted without the judge's decision would be unlawful, therefore the evidence collected as such would not be regarded as lawful (Assembly of the Criminal Chambers of the Court of Cassation, 17 November 2009, 2009/7-160 E. 2009/264 K., Annex 1). See also (Assembly of the Criminal Chambers of the Court of Cassation, 26 June 2007, 2007/7-147 E., 2007/159 K., Annex 2), (Assembly of the Criminal Chambers of the Court of Cassation, 4 October 2011, 2011/6-46 E., 2011/195 K., Annex 3). As inferred from the judgments, the implementation has settled in practice as well.

According to Article 161 § 5 of the CCP, Law No. 5271, public prosecutor shall, ex officio, launch an investigation about the public employees and their superiors who misuse or neglect their statutory duties, as well as members of security forces who misuse or neglect to execute the oral or written demands or orders of the public prosecutors. Accordingly, police officers who conduct an unlawful or unfair search or who violate the human rights and freedoms shall, ex officio, be prosecuted by the public prosecutors, without prior permission.

By no longer requiring permission to initiate investigation against police officers, it has been guaranteed that an effective investigation will be conducted in an independent and impartial manner.

Non-requirement of permission for investigations concerning members of security forces for offences committed on duty has been established in practice through the Court of Cassation's case law. In its judgment rendered on 15 November 2006, the 4th Criminal Chamber of the Court of Cassation held that Article 161 § 5 of the CCP clearly sets out the fact that the police officers performing their judicial security duties would be prosecuted ex officio by the Public Prosecutor, and that no permission is required in respect of the police officers (4th Criminal Chamber of the Court of Cassation, 15 November 2006, 2006/5351 E., 2006/16285 K., Annex 4; see also judgment of the 4th Criminal Chamber of the Court of Cassation, 6 February 2007, 2006/10499 E., 2007/1166 K., Annex 5).

D. Training and Awareness Raising Activities

In the High Level Conference organized by the General Directorate of International Law and Foreign Affairs, Human Rights Department, on 15-17 November 2011, six working groups were established within the context of the Convention provisions. In one of the working groups, legislation and practice concerning the right to respect for private and family life safeguarded by Article 8 of the Convention were discussed. Legislative and practical aspects of such problems were elaborated. The working group consisted of representatives of the Court of Cassation, the Council of State, various departments of the Ministry of Justice and representatives of other relevant institutions. Problems with respect to the search measure and possible solutions in compliance with the Court's case-law were put-forth. It was concluded that the problems originated in the execution of the new legislation, and therefore, training activities in order to raise awareness would have to be given priority.

Moreover, "the Project on Strengthening the Effectiveness of Turkish Criminal Justice System" aims at elimination of problems such as unlawful search in criminal justice system, and strengthening the implementation capacity of the Convention. The project was launched in March 201 2. Within the scope of the project, Turkish criminal justice system will be reviewed in general and suggestions for solution will be prepared for the defective aspects. During the course of the Project, study visits will be made to domestic pilot courts, a training curriculum will be prepared for the Justice Academy, and seminars will be organised.

E. Individual Application Right before the Constitutional Court

A new domestic remedy, individual application right to the Turkish Constitutional Court, was introduced into the Turkish legal system by the constitutional amendments of 2010, and since 23 September 2012, the Constitutional Court has been receiving applications. Article 148 of the Constitution stipulates that anyone, who considers that his/her constitutional rights set forth in the Convention have been infringed by a public authority, will have a right to apply to the Constitutional Court after exhausting other domestic remedies.

After an examination, the Constitutional Court shall decide whether the fundamental rights of the applicant have been violated. In the event it finds a violation, it may also decide what should be done in order to redress the violation and its consequences.

In the event the violation results from a court judgment, the Constitutional Court may send the case‑file to the competent court for a retrial in order to restore the fundamental rights of the applicant. However, if the Constitutional Court deems that a re-trial will be of no use, then it may award compensation to the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages s/he may have suffered.

V. Conclusion

In the light of the submissions made above, the Government maintains that Turkey has taken all necessary general measures and no additional individual measure is needed for the execution of the H.M judgment. The Government therefore respectfully invites the Committee of Ministers to close its examination.

Resolution CM/ResDH(2013)254
Özbek against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.	Case	Judgment of	Final on
25327/04	ÖZBEK	27/05/2010	27/08/2010

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document (DH-DD(2013)431);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of European Court of Human Rights

Judgment in the case of Özbek v. Turkey (25327/04) dated 27 May 2010

ACTION REPORT

A. FACTS

The applicant Nuri Özbek had initiated compensation proceedings for the unlawful occupation of his land. He complained that he had been deprived of his right to property due to the dismissal of these proceedings.

B. CONTENT OF THE JUDGMENT

With its judgment dated 27 May 2010, the European Court of Human Rights ("the Court") found the applicant's complaint reasonable. The Court stated that the unlawful occupation of the applicant's land by the Military Forces and not being paid any compensation for it was in violation of the right to property.

The Court did not award the applicant any compensation since the applicant had not made a claim for it.

C. INDIVIDUAL MEASURES

1 - Damages and Court expenses

Re-opening of a hearing is regulated by Article 375 in the Code of Civil Procedure. According to this regulation, the applicant should apply for the reopening of the trial within 3 months after the arrival of legal notification of the ECtHR's judgement. The applicant had not applied for the renewal of the trial even though he had the opportunity to do so. It should also be emphasised that the re-opening of judicial proceedings can only be initiated with a claim made to that effect by the applicant himself.

2 - Removal of the Fences and Returning of the Land to the Applicant

The fences that surrounded the applicant's land have been removed and the land in question was excluded from the military zone. The applicant was informed of this situation with the letter of the 3'd Corps Commandership dated 17 January 2002.

D. GENERAL MEASURES

1 - Translation and publication of the judgment

The Özbek judgment was translated into Turkish and published on the official website of Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/ozbek.pdf.

In addition, the translation of the judgment was sent primarily to the court that rendered the judgment and to the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Human Rights Department of the Prime Ministry, the Constitutional Court, the Court of Cassation, the Ministry of Interior, and the Ministry of Finance.

2 - Individual application before the Constitutional Court

Individual application was introduced into the Turkish legal system by the 2010 constitutional amendments, and since 23 September 2012, the Constitutional Court has been receiving applications. Article 148 of the Constitution stipulates that anyone who thinks that his/her constitutional rights set forth in the European Convention on Human Rights have been infringed by a public authority will have a right to apply to the Constitutional Court after exhausting other domestic remedies.

After examination, the Constitutional Court decides whether the fundamental rights of the applicant have been violated or not. If it finds violation, it may also decide what should be done in order to redress the violation and its consequences.

In case the violation has been caused by a court decision, the Constitutional Court sends the file to the competent court for retrial in order to restore the fundamental rights of the applicant. But, if the Constitutional Court deems that there will be no use of a re-trial, then it may award compensation to the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages s/he suffered.

3 - Training and Awareness Raising Activities

On 21-22 May 2012 and 24-25 May 2012, the High Council of Judges and Prosecutors and Justice Academy of Turkey organised a training sessions under "In-Service Training on Expropriation Cases" in Ankara for the judges who hear expropriation cases. The participants were provided with training on "Trial Procedure in Expropriation Law, Confiscating without Expropriating and Evaluation of the ECtHR Judgments". This training session raised the awareness of participants on the evolving case-law of the ECtHR who were the judges who hear expropriation cases.

E. EXECUTION OF THE JUDGMENT

The Government firstly underlines the fact that the case is of an isolated nature and the case does not stem from a systemic problem. Secondly, the Government maintains that Turkey has taken all the necessary general measures and that no further individual measure is needed for the execution of the Nuri Özbek judgment. The Government therefore respectfully invites the Committee of Ministers to close the examination of the case.

Resolution CM/ResDH(2013)255
Secikagainst Turkey

Execution of the decision of the European Court of Human Rights

Application No.	Case	Date of the decision
9888/05	SECIK	29/01/2013

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlement were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close its examination.

Resolution CM/ResDH(2013)256
206 cases against Turkey

Execution of the of judgments of the European Court of Human Rights (Gençel group)

(See Appendix for the list of cases)

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established concerning the right to a fair trial on account of the lack of independence and impartiality of state security courts, and stressing that the Court considered in these judgments that the most appropriate form of redress for this violation would be to ensure that the applicants are granted a retrial by an independent and impartial tribunal (see § 27 in the Gençel case);

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Recalling in this respect that the Committee has closely followed the developments regarding the taking of the necessary legislative measures within the context of the Hulki Güneş group of cases (see, in particular the interim resolutions adopted, ResDH(2005)113, CM/ResDH(2007)26 and CM/ResDH(2007)150);

Welcoming in particular the adoption of the legislative amendment by the Turkish Parliament on 11 April 2013 within the context of the “Fourth Reform Package” and noting that, as a consequence of this amendment, the applicants in the present group of cases may request, if they so wish, the reopening of proceedings in their cases;

Recalling that, as far as the other violations established in the present group of cases are concerned, the Committee closed the examination of issues related to excessive length of detention in police custody and absence of a domestic remedy (violations of Article 5 §§ 3 and 4) within the context of the Sakık and other case (see ResDH(2002)110) as well as issues related to the violation of right to freedom of expression on account of convictions under former article 8 of Anti-terrorism Law within the context of the Arslan case (see ResDH(2006)79);

Noting further in this respect that the Committee is currently examining the issues related to excessive length of proceedings and the lack of an effective remedy within the context of Ormancı and Kaplan group of cases and the issues related to excessive length of detention on remand within the context of Demirel group of cases;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix

Application	Case	Judgment of	Final on
53431/99	GENÇEL	23/10/2003	24/03/2004
39678/98	ACAR LEŞKER	22/06/2004	22/09/2004
55954/00	AKAR AND BEÇET	20/09/2005	20/12/2005
52656/99	AKBABA	17/01/2006	17/04/2006
59759/00	AKÇAKALE	25/05/2004	25/08/2004
65897/01	AKGÜL	16/01/2007	16/04/2007
59645/00	AKINTI AND OTHERS	15/02/2007	15/05/2007
52665/99	AKKAŞ ÇAĞLAR	23/10/03	24/03/04
41956/98	AKSAÇ	15/07/2004	15/10/2004
59234/00	AL AND OTHERS	13/11/03	24/03/04
66354/01	ALTUN ABDULLAH	19/10/2006	19/01/2007
63183/00	ASLAN BEDRI AND REŞIT	22/12/2005	22/03/2006
58055/00	ASLAN AND ŞANCI	05/12/2006	05/03/2007
59237/00	ASLAN MEHMET SALIH	15/07/2005	15/10/2005
62018/00	ASLAN MEHMET ŞERIF	03/05/2007	03/08/2007
1595/03	ASLAN TAMER AND OTHERS	02/06/2009	02/09/2009
62597/00	AYDIN RASIM	31/01/2008	30/04/2008
40297/98	AYDIN ŞEHMUZ	22/12/2004	22/03/2005
54501/00	AYDIN VOLKAN	10/11/2004	10/02/2005
41967/02	AYDOĞAN AND OTHERS	02/12/2008	02/03/2009
54275/00	AYTAN	20/09/2005	20/12/2005
63878/00	BALÇIK	26/04/2005	26/07/2005
46777/99	BARAN	23/01/2006	09/07/2007
64277/01	BAŞBOĞA	13/06/2006	13/09/2006
27709/02+	BAŞTIMAR AND OTHERS	03/04/2007	03/07/2007
57562/00	BECERIKLI AND ALTEKIN	08/01/2004	14/06/2004
65715/01	BENLI	20/02/2007	20/05/2007
60132/00	BORAK	05/12/2006	05/03/2007
46388/99	BOZKURT BILAL AND OTHERS	04/12/03	24/03/04
57345/00	BUDAK AND OTHERS	10/01/2006	10/04/2006
50282/99	BULUT ADEM AND OTHERS	02/03/2006	02/06/2006
49892/99	BULUT	22/11/2005	22/02/2006
55812/00	ÇALOĞLU VAHIT AND HILAN	29/07/2004	29/10/2004
38389/97	CAN MAHMUT	27/11/03	27/02/03
40395/98	CANEVI AND OTHERS	10/11/2004	10/02/2005
63354/00	CANPOLAT	15/02/2007	15/05/2007
70317/01	CANSEVEN	15/02/2007	15/05/2007
57019/00	ÇAPLIK HATIP	15/07/2005	15/10/2005
41580/98+	ÇAVUŞ AND BULUT	23/10/2003	24/03/2004
47757/99	ÇAVUŞOĞLU AND OTHERS	04/12/03	04/03/04
56835/00	ÇELIK AND OTHERS	20/04/2006	20/07/2006
61650/00	ÇELIK MEHMET	15/07/2005	15/10/2005
47115/99	ÇELIK ULAŞ	24/07/2007	24/10/2007
75573/01	ÇELIKER	02/10/2007	02/01/2008
57944/00	ÇETINKAYA AND OTHERS	18/12/2003	14/06/2004
59640/00	ÇIFTÇI EVRIM	29/11/2005	01/03/2006
48155/99	ÇINAR	15/01/2004	14/06/2004
52898/99	ÇOLAK No. 1	15/07/2004	15/10/2004
53530/99	ÇOLAK No. 2	15/07/2004	15/10/2004
225/02	ÇOMAK	10/10/2006	10/01/2007
51416/99	DALGIÇ	23/10/03	24/03/04
60262/00	DEMIR EBRU	22/11/2005	22/02/2006
55373/00	DEMIR FIKRI	11/04/2006	11/07/2006
42437/98	DINÇ RIZA	28/10/2004	02/02/2005
50193/99	DOĞAN AND KESER	24/06/2004	24/09/2004
49503/99	DOĞAN HALIL	29/01/2004	14/06/2004
62017/00	DOĞRU	10/11/2005	10/02/2006
29592/96	DOLAŞAN	18/01/2005	18/04/2005
34498/97	DÖNER	26/10/2004	26/01/2005
47654/99	DURAN OSMAN	04/12/03	04/03/04
40997/98	DURAN TAHIR	29/01/2004	14/06/2004
46506/99+	DURMAZ AND OTHERS	14/10/2004	14/01/2005
55913/00	DURMAZ HIDIR	05/12/2006	05/03/2007
44267/98	DURSUN AND OTHERS	04/12/03	04/03/04
43926/98	EPÖZDEMIR	28/10/2004	28/01/2005
52782/99	ERÇIKDI AND OTHERS	11/04/2006	11/07/2006
53895/00	ERDOĞAN MESUT	23/10/03	24/03/04
46106/99	EREN	23/10/03	24/03/04
52744/99	ERGÜL AND ENGIN	23/10/03	24/03/04
59769/00	EROĞLU	21/09/2006	21/12/2006
56021/00	EROLAN AND OTHERS	15/01/2004	14/06/2004
54814/00	EŞIDIR AND OTHERS	11/10/2005	11/01/2006
21865/02	EVCIMEN	29/11/2007	02/06/2008
64447/01	GARBUL	19/07/2007	19/10/2007
67634/01	GERÇEK	31/01/2008	07/07/2008
8126/02	GIÇ	21/07/2009	21/10/2009
71813/01	GÖCEKLI	21/12/2006	21/03/2007
49655/99	GÖKDERE AND GÜL	09/12/2004	09/03/2005
52746/99	GÜLER AND ÇALIŞKAN	21/12/2006	21/03/2007
60853/00	GÜLLÜ İBRAHIM	14/06/2007	14/09/2007
1889/04	GÜLLÜ	10/11/2005	15/02/2006
67483/01	GÜNDOĞAN No. 2	16/01/2007	16/04/2007
49240/99	GÜNDOĞDU	03/05/2007	03/08/2007
59997/00	GÜNDÜZ MÜSLÜM No. 2	12/07/2005	12/10/2005
47296/99	GÜNEL	27/11/03	27/02/03
53968/00	GÜNEŞ İSMAIL	13/11/03	13/02/04
46272/99	GÜNEŞ	22/04/2004	10/11/2004
1827/02+	GÜRSOY AND OTHERS	31/10/2006	31/01/2007
40528/98	GÜVEN AHMET AND OTHERS	22/01/2004	14/06/2004
37625/03	GÜVEN BIRTAN AND OTHERS	31/07/2007	31/10/2007
54479/00	GÜZEL No. 1	04/04/2006	04/07/2006
57343/00	HATUN AND OTHERS	20/10/2005	20/01/2006
54919/00	İÇÖZ	15/01/2004	14/06/2004
75603/01	İLDAN	26/06/2007	26/09/2007
58057/00	İREY	27/07/2004	27/10/2004
47340/99	JALALIAGHDAM	22/01/2004	14/06/2004
57939/00	KALYONCUGIL AND OTHERS	29/01/2004	14/06/2004
52691/99	KARABAŞ	21/07/2005	21/10/2005
56015/00	KARABULUT	24/01/2008	07/07/2008
64293/01	KARADUMANLI	30/09/2008	30/12/2008
45718/99	KARAKURT	20/09/2005	15/02/2006
60161/00	KARAOĞLAN	31/10/2006	31/01/2007
65942/01	KARATEPE MUSTAFA	29/11/2007	29/02/2008
41551/98	KARATEPE	31/07/2007	31/10/2007
59641/00	KARTAL AND KIZILDAĞ	08/04/2008	08/07/2008
69790/01	KAVAK	09/11/2006	09/02/2007
54335/00	KAYA AND OTHERS	24/06/2004	24/09/2004
2624/02	KAYA HIDIR	09/01/2007	09/04/2007
44054/98	KAYA İRFAN	22/01/2004	14/06/2004
57758/00	KAYMAZ AND OTHERS	28/10/2004	28/01/2005
52701/99+	KEÇECI	15/07/2005	15/10/2005
60574/00	KEKLIK	06/07/2006	06/10/2006
67215/01	KENAR	13/12/2007	13/03/2008
35363/02	KEPENEKLIOĞLU AND CANPOLAT	06/09/2005	06/12/2005
58058/00	KEZER AND OTHERS	24/01/2006	24/04/2006
40498/98	KILIÇ MURAT	30/09/2004	30/12/2004
48083/99	KILINÇ MÜKREMIN	15/03/2005	15/06/2005
44785/98	KIPER	23/05/2006	23/08/2006
76400/01	KIRANCI	26/06/2007	26/09/2007
48062/99	KIRCAN MUSTAFA	22/01/2004	14/06/2004
48263/99	KIRMAN	27/11/03	27/02/03
71354/01	KOÇ FEHMI	27/03/2007	27/06/2007
40991/98	KOÇAK KEMAL	19/07/2007	19/10/2007
49523/99	KONUK	22/06/2006	22/09/2006
50903/99	KORKMAZ	22/01/2004	14/06/2004
61648/00	KUTAL AND UĞRAŞ	13/06/2006	13/09/2006
42434/98	MUT	11/04/2006	11/07/2006
43818/98	N.K.	30/01/03	30/04/03
65887/01	OKUYUCU AND BILMEN	16/01/2007	16/04/2007
63357/00	ÖNCÜ AND OTHERS	29/11/2005	01/03/2006
64684/01	ÖNER AND OTHERS	25/10/2005	25/01/2006
44662/98	ÖZ AND YÜREKLI	19/07/2007	19/10/2007
50087/99	ÖZBEY MÜSLÜM	21/12/2006	21/03/2007
56006/00	ÖZCAN MEHMET AND OTHERS	11/10/2005	11/01/2006
55427/00	ÖZCAN SERDAR	08/04/2004	08/07/2004
46952/99	ÖZDEMIR HIDIR	15/01/2004	14/06/2004
42141/98	ÖZDEN	24/05/2005	24/08/2005
49707/99	ÖZDOĞAN	18/01/2005	18/04/2005
48059/99	ÖZER K. AND OTHERS	22/04/2004	22/07/2004
48438/99	ÖZERTIKOĞLU İSMAIL	22/01/2004	14/06/2004
58397/00	ÖZSOY	02/02/2006	02/05/2006
59244/00	ÖZTÜRK AYŞE	04/11/2004	04/02/2005
52695/99	ÖZTÜRK	20/09/2005	20/12/2005
51289/99	ÖZÜLKÜ	27/11/03	27/02/03
60177/00	ÖZÜPEK AND OTHERS	15/03/2005	15/06/2005
48617/99	ÖZYOL	23/10/03	24/03/04
49276/99	PEKER MEHMET	20/11/2007	31/03/2008
53014/99	PEKER	23/10/03	24/03/04
32489/03	POLAT HASAN	22/09/2009	22/12/2009
48065/99	POLAT METIN AND OTHERS	15/01/2004	14/06/2004
38422/97	REYHAN	21/07/2005	21/10/2005
54545/00	ŞAHINDOĞAN	30/11/2004	28/02/2005
57919/00	ŞAHMO	20/09/2005	20/12/2005
48054/99	SARIOĞLU	04/12/03	24/03/04
56016/00	SEÇKIN AND OTHERS	03/05/2007	03/08/2007
41968/98	SEKIN DURAN	02/02/2006	02/05/2006
63306/00	SEZER ZEKERIYA	29/11/2007	29/02/2008
50118/99	ŞIMŞEK	23/10/2003	24/03/2004
47328/99	ŞIRIN	15/03/2005	15/06/2005
50119/99	SÜVARIOĞULLARI AND OTHERS	23/10/03	24/03/04
13797/02	ŞUYUR	23/05/2006	23/08/2006
30452/96	TAKAK	01/04/2004	07/07/2004
45907/99	TANRIKOLU AND OTHERS	20/10/2005	12/04/2006
60011/00	TANRIKULU AND DENIZ	18/04/2006	18/07/2006
62877/00	TAŞ DEDE	10/11/2005	10/02/2006
48134/99	TAŞ YEŞIM	04/12/03	04/03/04
49517/99	TAŞKIN HÜSEYIN	04/12/03	04/03/04
48805/99	TAYDAŞ AND ÖZER	04/11/2004	04/02/2005
69515/01	TEKIN AND TAŞTAN	11/01/2005	11/04/2005
64570/01	TEKIN HALIS	19/07/2007	19/10/2007
52899/99	TEKIN MAHSUN	20/12/2005	20/03/2006
41990/98	TEMIRKAN	20/09/2005	20/12/2005
35070/97	TEZCAN UZUNHASANOĞLU	20/04/2004	20/07/2004
48060/99	TOKAY AND ULUS	23/03/2006	23/06/2006
57561/00	TOPRAK	08/01/04	08/04/04
48095/99	TÖRE NAZIF	14/04/2005	14/07/2005
42738/98	TUNCEL AND OTHERS	27/11/03	24/03/04
51053/99	TUTMAZ AND OTHERS	23/10/03	24/03/04
55951/00	UÇAR AND OTHERS	27/11/03	27/02/03
42775/98	ÜKÜNÇ AND GÜNEŞ	18/12/2003	14/06/2004
48616/99	ÜNAL SÜLEYMAN	10/11/2004	10/02/2005
48544/99	UZUN	20/04/2006	20/07/2006
46284/99	YANIKOĞLU	14/10/2004	14/01/2005
52661/99	YAVUZ KENAN	13/11/03	13/02/04
53586/99	YAVUZASLAN	22/04/2004	22/07/2004
57965/00	YAYAN İBRAHIM	20/04/2006	20/07/2006
50249/99	YEŞIL	01/07/2004	01/10/2004
52162/99	YEŞILTAŞ HÜSEYIN AND KAYA ZEKI	15/07/2005	15/10/2005
40518/98	YILDIRIM SÜLEYMAN	29/07/2004	29/10/2004
52164/99	YILDIZ AND OTHERS	21/07/2005	21/10/2005
26892/02	YILDIZ AND SEVINÇ	27/10/2009	27/01/2010
49156/99	YILDIZ BEKIR	06/09/2005	15/02/2006
58400/00	YILDIZ HÜSEYIN	25/10/2005	25/01/2006
47874/99	YILMAZ AND BARIM	22/06/2006	22/09/2006
57172/00	YILMAZ AND DURÇ	22/12/2005	22/03/2006
62319/00	YILMAZ FEYYAZ	15/07/2005	15/10/2005
50743/99	YILMAZ HAYRETTIN BARBAROS	23/10/2003	24/03/2004
53497/99	YILMAZ LEVENT CAN	21/07/2005	21/10/2005
47278/99	YILMAZ MAHMUT AND OTHERS	08/08/2006	08/11/2006
42552/98	YILMAZ MEHMET BÜLENT AND YILMAZ ŞAHIN	07/10/2004	07/01/2005
45733/99	YILMAZ METIN	22/12/2004	22/03/2005
48992/99	YILMAZ MURAT	24/06/2004	24/09/2004
66689/01	YILMAZ YILDIZ	11/10/2005	11/01/2006
62227/00	YÜKSEKTEPE	24/10/2006	26/03/2007
47628/99	YURTSEVER	02/02/2006	02/05/2006
60848/00	ZENGIN BÜLENT	29/11/2007	29/02/2008

EXECUTION OF THE GENCEL GROUP OF CASES

ACTION REPORT

A. FACTS

1. The cases in the Gencel Group concern violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them. They relied on Article 6 § 1 (right to a fair trial by an independent and impartial court) of the Convention. The precedent judgment in the case of Gencel v. Turkey became final on 24 March 2004 and currently 206 judgments are being supervised by Committee of Ministers under this group.

B. JUDGMENTS

2. The Court held unanimously that there had been a violation of Article 6 § 1.

C. INDIVIDUAL MEASURES

Just satisfaction

3. The just satisfaction amounts awarded by the Court have been paid to the applicants in due time and relevant documents indicating payment have been submitted to the Department for the Execution of the Court Judgments.

Other Individual Measures

4. The Court considered that where an individual was convicted by a domestic court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if so requested, represented in principle an appropriate way of redress for the violation.

5. The reopening of judicial proceedings has been an existing legal remedy in the Turkish legal system. However, the applicants’ proceedings in the Gencel Group of cases could be reopened due to an exceptional time restriction provided under Article 311 of the Code of Criminal Procedure.

6. A provisional article has been added to the Code of Criminal Procedure by “The Law Amending Certain Laws in the Context of Human Rights and Freedom of Expression” (hereinafter “the Law”), which is known in Turkey as the “Fourth Judicial Reform Package”. It was adopted by the Turkish Parliament on 11 April 2013 and came into force on 30 April 2013.

7. The above-mentioned provisional article has made it possible for the applicants to request the reopening of proceedings in all relevant cases that have been under the supervision of the Committee of Ministers as of 15 June 2012. Accordingly, retrial requests could be made within three months following the entry into force of the Law. Therefore it has been possible for all applicants in the Gencel Group of cases to request the reopening of proceedings.

8. The Law was published on the Official Gazette in 30 April 2013. It received broad media coverage during its legislative process and thereafter. Consequently, the content of the Law is well known by the public and should be known by the applicants in these cases as well.

D. GENERAL MEASURES

Translation and Publication of the Judgment

9. The judgments in the Gencel Group of cases have been translated into Turkish and published on the official website of the Human Rights Department of the Ministry of Justice.

These judgments are available at http://www.inhak.adalet.gov.tr/.

10. The translated judgments have been disseminated to the relevant institutions such as the Ministry of Interior, the Court of Cassation, the High Council of Judges and Prosecutors and the Justice Academy, as well as to the domestic courts that have rendered the judgments.

E. EXECUTION

11. The Gencel Group of cases present similarities to the judgment in the case of Çıraklar v. Turkey (28 October 1998) which was closed by a final resolution, DH(99)555, following the legislative and constitutional amendments changing the composition of state security courts and ending the functions of military judges and military prosecutors in these courts. The Parliament subsequently approved a constitutional amendment on 7 May 2004, abolishing state security courts. Consequently the Government considers that there is no further general measure which needs to be taken for the execution of the Gencel group of cases.

12. Additionally, the Court has unanimously declared the case of Hulki Güneş v. Turkey (17210/09) inadmissible on 2 July 2013. The Court observed that “a new law enacted by Turkey on 11 April 2013 allowed the reopening of those cases against Turkey in which the European Court of Human Rights had found a violation of the Convention and in respect of which execution proceedings had been pending before the Committee of Ministers of the Council of Europe on 15 June 2012”. Under the Law, the applicant had the possibility to request the reopening of the proceedings within three months of its entry into force, that is, from 30 April 2013. The Court therefore considered that the complaint was manifestly ill-founded and declared it inadmissible.

13. In the light of the submissions made above, the Government maintains that Turkey has taken the necessary individual and general measures for the execution of the judgments in the Gencel Group cases and kindly invites the Committee of Ministers to close their examination.

Resolution CM/ResDH(2013)257
Tyulyakova against Ukraine

Execution of the decision of the European Court of Human Rights

Application No.	Case	Date of the decision
6136/09	TYULYAKOVA	11/12/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlement were executed by the government of the respondent State,

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close its examination.

Resolution CM/ResDH(2013)258
K.A. and others against the United Kingdom

Execution of the decision of the European Court of Human Rights

Application No.	Case	Date of the decision
63008/11	K.A. AND OTHERS	22/01/2013

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

Having satisfied itself that the terms of the friendly settlement were executed by the government of the respondent State (see document DH-DD(2013)1095);

DECLARES that it has exercised its functions under Article 39, paragraph 4, of the Convention and

DECIDES to close its examination.

Execution of Judgments of the European Court of Human Rights

Action Report

KA and others v UK (application No. 63008/11; decision final on 22/01/2013)

Information submitted by the United Kingdom Government on 8 October 2013

Case Summary

The case concerned the proposed expulsion of the applicants, a mother and her three minor children, from the United Kingdom to Pakistan. The applicants complained that their proposed expulsion would be a violation of Articles 2, 3, 8 and 13 of the Convention. On 22 January 2013, the case was struck out of the Court’s list of cases on the basis of a friendly settlement reached between the parties as follows:

“the United Kingdom Border Agency would grant the applicants leave to remain in the United Kingdom outside the immigration rules for a period of thirty months in full and final settlement of their complaints before the Court and confirmed that the applicants may be entitled to a further period of leave at the end of that period if, at that time, they had a protection need or if they met the requirements of the immigration rules in respect of private or family life.”

Individual Measures

The applicants were all granted discretionary leave to remain in the UK on 13 May 2013. Their leave expires on 12 November 2015, upon which they may seek an extension of their stay in the United Kingdom.

General Measures

In light of the individual circumstances of the Court’s decision, the case does not require the adoption of any general measures.

State of execution of decision:

The government considers that it has taken all necessary measures required to execute the terms of the friendly settlement as set out in the Court’s decision.

Interim Resolution CM/ResDH(2013)259
Sejdić and Finci against Bosnia and Herzegovina

Execution of the judgment of the European Court of Human Rights

Application n°	Case	Judgment of	Final on
27996/06	SEJDIĆ AND FINCI	22/12/2009	Grand Chamber

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”) and having regard to the Grand Chamber judgment of the European Court of Human Rights (“the Court”) of 22 December 2009 in the case of Sejdić and Finci against Bosnia and Herzegovina transmitted to the Committee for supervision of its execution,

Recalling the Committee’s repeated calls on the authorities and political leaders of Bosnia and Herzegovina to reach a consensus and to amend the Constitution of Bosnia and Herzegovina and its electoral legislation to comply with this judgment and that these calls have been echoed notably by the Parliamentary Assembly of the Council of Europe (including most recently in its Recommendation 2025(2013)), as well as different bodies of the European Union and the United Nations;

Recalling the assurances given on numerous occasions by the representatives of the executive and the main political parties of Bosnia and Herzegovina that all political stakeholders are fully committed to finding an appropriate solution for the execution of this judgment;

Recalling also that the Constitution of Bosnia and Herzegovina provides that “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law”;

Expressing the gravest concern that, despite the repeated assurances, including at its last human rights meeting in September 2013, the necessary constitutional and legislative amendments have still not been made and that time is running out for the 2014 elections to be held in compliance with the Convention requirements;

Reiterating that failure to do so would not only amount to a manifest breach of obligations under Article 46, paragraph 1, of the Convention but could also potentially undermine the legitimacy and the credibility of the country´s future elected bodies;

Regretting that the important declaration signed by all political leaders on 1 October 2013 was not followed, despite the commitment expressed, by a detailed agreement on key principles of the electoral system, including the necessity of providing every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina;

Noting that political leaders of Bosnia and Herzegovina are presently investing intensive efforts to negotiate rapidly a consensus on the content of the constitutional and legislative amendments aimed at eliminating discrimination based on ethnic affiliation in elections for the Presidency and the House of Peoples of Bosnia and Herzegovina,

FIRMLY CALLS UPON all authorities and political leaders of Bosnia and Herzegovina to ensure that the constitutional and legislative framework is immediately brought in line with the Convention requirements so that the elections in October 2014 are held without any discrimination against those citizens who are not affiliated with any of the “constituent peoples”.

[1] « une décision définitive peut faire l’objet d’une demande de réexamen en raison de la découverte de nouvelles circonstances, si :

… (g) Il existe un arrêt /une décision de la Cour européenne des Droits de l’Homme dans lequel / laquelle, la Cour a constaté une violation des dispositions de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales ou de ses protocoles additionnels par rapport à l’affaire à réexaminer et que la violation constatée découle de la décision judiciaire à réexaminer. »

[2] Information submitted by Polish authorities on 13 November 2013