CM/Del/OJ/DH(2007)1007 Section 4.1 PUBLIC 13 November 2007
1007th meeting (DH), 15-17 October 2007
- Annotated Agenda1
Public information version
SECTION 4 - CASES RAISING SPECIFIC QUESTION
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)
(See Addendum 4 for part or all these cases)
The Deputies are invited to supervise the progress made in the adoption of the implementing measures in the following cases raising several problems. Supplementary information on some or all the cases listed below will be issued in Addendum 4. The Deputies are invited to resume consideration of these items on a case-by-case basis.
SUB-SECTION 4.1 – SUPERVISION OF INDIVIDUAL MEASURES ONLY2
- 1 case against Austria
36812/97+ Sylvester, judgment of 24/04/03, final on 24/07/03
The case concerns the failure of the Austrian authorities to enforce a court decision rendered in December 1995 (and final two months later) under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which ordered that the first applicant's daughter (the second applicant, born in 1994), unlawfully taken away by her mother, should be returned to him in the United States. After an unsuccessful attempt to enforce that decision in May 1996, the Austrian Courts granted an appeal lodged by the mother and set aside the enforcement of the return order by court decision of August 1996 (final in October 1996) on the grounds that, due to the considerable lapse of time since the two year-old child had lost contact with her father, there would be a risk of grave psychological harm if she was separated from her mother, who had become her main person of reference. Subsequently, the second applicant's mother was awarded sole custody of the second applicant.
The European Court noted that, in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences. A change in the relevant facts may exceptionally justify the non-enforcement of a final return order under the Hague Convention, but the change must not have been brought about by the state's failure to take all measures that could have reasonably been expected. The European Court noted important delays during the period when the domestic courts dealt with the appeal lodged by the mother against the enforcement of the return order and also indicated that the domestic authorities did not take any measures to create the necessary conditions for executing the return order while the lengthy enforcement proceedings were pending. Consequently, the European Court found that the Austrian authorities had failed to take, without delay, all measures that could have been reasonably expected to enforce the return order, and thereby breached the father's and daughter's right to respect for their family life, by allowing the passage of time to determine the outcome of the custody proceedings (violation of Article 8).
Individual measures: The applicant complained that it would be futile for him to repeat before an Austrian court his request for the daughter's return to the United States at the present time. Considering the lapse of time and the evaluation made by the European Court, it is nevertheless accepted by the Deputies that the enforcement of the 1995 return order is today impossible.
The Austrian delegation has indicated that the first applicant has instead enjoyed visiting rights in Austria, and currently regularly visits his daughter on the basis of an out-of-court agreement with the child's mother (approximately 12 days a year).
The first applicant has insisted on the fact that the existing limitations on the contacts between him and his daughter are the result of the violation of the Convention for which Austria is responsible. He has complained about the present visitation arrangements, both on his own and on his daughter's behalf, stressing that he is compelled to accept them due to the inability of the Austrian judicial system to afford him, even if a request for better visitation rights would be accepted, such rights with sufficient speed and enforcement. In support of this position, he has maintained that the court proceedings earlier engaged with this aim (until 2001) have demonstrated that, under Austrian law, the mother of the child may lodge appeals suspending for long periods of time the execution of visiting rights obtained and that even if a final decision is obtained, he has no effective way of enforcing it against the will of the mother. Moreover, he expresses his fear that he will loose all contact with his daughter if such proceedings are engaged, as the mother would then abrogate the out-of-court agreement and deny him the possibility to meet the child.
He also complains that he has never been permitted to have unsupervised contacts with the child or take her to visit the United States with the eventual aim of having visits to the Unites States established on a regular basis.
He has therefore requested the Committee to ensure that the respondent state takes affirmative, pro-active measures in order to grant him special assistance in reaching a solution which better respects his and his daughter's right to family life than the present situation.
In reply, the Austrian authorities have submitted that the applicant may apply for, and rapidly obtain, to the extent that his requests are granted, effectively enforceable visitation rights. The government has, however, indicated that the Austrian authorities cannot lawfully do anything unless the applicant lodges a request before the domestic authorities to obtain a change, either in the form of a request to the Federal Ministry of Justice based on Article 21 of the Hague Convention or in the form of an application lodged with the competent District Court for Civil Affairs for obtaining a visitation order. According to the Austrian authorities, the domestic system affords effective legal remedies to the first applicant, which must be used.
Concerning the possibility of the daughter being taken to visit the United States, the Austrian authorities have pointed at the fact that in the United States, an arrest warrant against the mother and a US custody order granting sole custody to the father are in force, making such visiting arrangements impossible. The applicant informed the Secretariat that the arrest warrant was withdrawn in October 2005.
• The new procedure concerning access rights:
The applicant has informed the Secretariat that, on 04/04/2005, the US authorities, on his behalf, sent the Austrian authorities a request based on Article 21 of the Hague Convention concerning the access to the second applicant. After having received translations into German, the Austrian Central Authority sent the application to the competent court. The applicant has been granted free legal aid and a lawyer has been appointed to represent him in the proceedings free of charge. The Austrian authorities have also indicated that, according to § 271 (1) of the Civil Code, a guardian has to be appointed ex officio during the proceedings in the case of a conflict between the interests of the child and her/his legal representative. A guardian does not have to be appointed if the interest of the child can be taken care of by the court itself.
The Graz District Court ordered that an expert report be drafted by a child psychologist. The applicant indicated that the expert had recommended that no contact between him and his daughter should take place until May 2006, except for telephone conversations assuming that the daughter agrees to accept them. The applicant has filed a reply to this report. Court hearings took place before the Graz District Court on 02/06/2005, 06/07/2005 and 26/09/2005. The Austrian delegation has informed the Committee that the applicant was absent at this last hearing, for health reasons. Another hearing took place on 22/11/2005, but no decision was taken by the court at that date. The applicant complained of the excessive delays which have occurred during the proceedings, particularly pointing out the long intervals (more than two months) between the hearings. The applicant furthermore complained that, despite his request, no interim contacts had been ordered by the court and that he has not spoken with his daughter since July 2005.
At the 948th meeting (November 2005) the issue was raised whether or not the Committee of Ministers should await the outcome of the proceedings engaged by the applicant before the Austrian courts in order to obtain, as far as possible, restitutio in integrum before closing its supervision of the issue of individual measures. Summing up the debate, the Chairman noted that many delegations had expressed support for Austria’s desire to close examination of this case. He noted, however that this support was not unanimous and that there was also a difference of appreciation between the Austrian delegation and the Secretariat.
The Secretariat recalls on this issue that the practice of the Committee of Ministers in similar situations has always been not to consider closing supervision of the execution of a judgment until the competent domestic authority, before which the execution question has been brought, has taken its decision. In the present situation this would imply continuing supervision.
• Recent development in the domestic procedure concerning access rights: The Austrian authorities have informed the Secretariat that another court hearing took place on 15/03/2006 in the presence of an interpreter and a child psychologist. Assisted by the judge, the applicant and the mother of the applicant’s daughter reached an agreement to suspend the legal proceedings for three months and reach an out-of- court agreement on the applicant’s visiting rights. To date, neither party has requested the court to resume the proceedings.
• Information is expected as to whether the out-of-court negotiations between the parties are still going on.
General measures: In the light of the information submitted, the Secretariat considers that this aspect of the case may be considered settled (see for more details 966th meeting, May 2006, Section 4.1).
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided on individual measures, namely the development of the court proceedings, and in particular whether the parties are still negotiating.
- 2 cases against Azerbaijan
34445/04 Mammadov (Jalaloglu), judgment of 11/01/2007, final on 11/04/20073
The case concerns torture inflicted on the applicant, Secretary General of the Democratic Party of Azerbaijan at the material time, while he was in police custody in October 2003 (violation of Article 3).
The case also concerns the absence of an effective investigation into the applicant’s allegations of ill-treatment (violation of Article 3) in particular in that the authorities failed to secure the forensic evidence in a timely manner and the ensuing criminal investigation was not satisfactory (see § 74 to 79 of the Court’s judgment).
Finally, the case concerns the right to an effective remedy (violation of Article 13), because the domestic courts simply endorsed the criminal investigation, without independently assessing the facts of the case.
Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
The Committee's consistent position in this kind of cases is that there is a continuing obligation to conduct investigations where a (procedural) violation of Article 3 is found.
• Information is requested as to whether a fresh investigation is possible into the events at issue.
General measures (No examination envisaged at the meeting)
• The judgment should be translated into Azeri, published and sent out to police and prison authorities and to the civil and criminal courts.
• Information is also required on general measures taken or envisaged to ensure first respect of the prohibition of torture, inhuman or degrading treatment and secondly to proper investigations in case of allegations of ill-treatment. In this respect the Azerbaijani authorities might refer to the wealth of experience acquired by member states in executing judgments under the Committee of Ministers’ supervision (see Interim Resolutions DH(99)434, ResDH(2002)98 et ResDH(2005)43 concerning Turkey, ResDH(2005)20 concerning the McKerr group of cases against the United Kingdom, etc., as well as in the light of the standards of the Committee for the Prevention of Torture.
The Secretariat is awaiting the Azerbaijani authorities’ reply to its letter inviting them to present a plan of action for the execution of this judgment.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning payment of the just satisfaction, if necessary, as well as individual and general measures.
5548/03 Hajiyev, judgment of 16/11/2006, final on 16/02/2007
The case concerns a violation of the applicant's right of access to court (violation of Article 6§1).
The applicant was sentenced to 15 year's imprisonment by a Supreme Court judgment which was final and not subject to appeal at the time of his conviction. After the adoption of a new Code of Criminal Procedure in 2000, he was unable to benefit from the appeal procedures which should have applied to his case according to the provisions of the transitional Law, because of the absence of a clear domestic judicial interpretation of this transitional Law.
Individual measures: On 10/05/2004 the applicant was pardoned and released from prison under a presidential pardon. On 21/05/2004, the Plenary Chamber of the Supreme Court upheld the applicant's request for reduction of his sentence. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained
The applicant states in a letter of 16/05/2007 that on 3/03/2007, he appealed against his conviction under Article 386 of the Code of Criminal Procedure.
• Information is awaited on the outcome of these proceedings.
• Information is awaited concerning the translation, publication and dissemination of the European Court's judgment to judges, together with a circular drawing their attention to paragraphs 33, 35 and 46.
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided on individual and general measures.
- 3 cases against Croatia
- Cases concerning the length of civil proceedings
State of proceedings at the time of the European Court's judgment
Poje, judgment of 09/03/2006, final on 09/06/2006
Nogolica No. 3, judgment of 07/12/2006, final on 07/03/2007
Sukobljević, judgment of 02/11/2006, final on 02/02/2007
These cases concern the excessive length of certain civil proceedings (violations of Article 6§1).
The Poje case also concerns the lack of an effective remedy at the applicants' disposal against the excessive length of the proceedings in question (violation of Article 13). The European Court noted than even though the applicants had lodged a constitutional complaint while their proceedings had still been pending, the Constitutional Court dismissed the complaint as inadmissible in 2003, once the proceedings had ended, without examining their length until that time.
Individual measures: In the Poje case, the first-instance court delivered its judgment on 21/04/2006. The proceedings are now pending at appeal. The competent courts' attention has been drawn to the European Court's findings with a view to accelerating these proceedings as far as possible.
• Information is awaited on the state of the pending proceedings and if appropriate on their acceleration.
1) Violations of Article 6§1: The cases present similarities to that of Horvat (judgment of 26/07/2001) closed by Resolution ResDH(2005)60, following:
- the adoption of general measures to improve the efficiency of the judicial system and avoid new violations (Act amending the Act on Civil Procedure, adopted on 14/07/2003, which aims at strengthening procedural discipline and simplifying civil proceedings) and
- the introduction of an effective remedy against the excessive length of judicial proceedings (new Article 63 of the Act on the Constitutional Court, in force since 15/03/2002).
In addition, it might be noted that following the amendments to the Law on the Judiciary, which entered into force on 29/12/2005, the Constitutional Court is no longer competent to examine at first instance complaints against the excessive length of judicial proceedings. Instead, the courts superior to those dealing with the merits of a case will have such competence. Their decisions concerning such complaints may be appealed before the Supreme Court and the decisions of the latter before the Constitutional Court.
2) Violation of Article 13: it should be noted that the Constitutional Court changed its practice of dismissing complaints against the excessive length of judicial proceedings once the proceedings had finished even if such complaints had been lodged while the proceedings were been pending (see decision No. U-IIIA-603/2003 of the Constitutional Court of 24/09/2004).
The Deputies decided to resume consideration of these items at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided concerning individual measures, namely the progress of the proceedings and, if possible, their acceleration.
- 1 case against Denmark
- Case of length of civil proceedings
21846/04 Brøsted, judgment of 15/03/2007 - Friendly settlement
The case concerns the length of certain civil proceedings and the absence of an effective remedy in this respect (complaint under Articles 6§1 and 13).
Individual measures: As part of the friendly settlement, the government of the respondent state and the applicant agreed among other things that the issue of costs and expenses related to the submission and conduct of the application before the European Court is to be resolved finally by the Civil Affairs Agency, taking into account that this Agency has already issued a decision granting the applicant a certain sum of legal aid.
• Information is awaited on whether the Civil Affairs Agency has already resolved the issue of costs and expenses.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided on whether the Civil Affairs Agency has resolved the issue of costs and expenses.
- 8 cases against France
33834/03 Riviere, judgment of 11/07/2006, final on 11/10/20064
This case concerns inhuman and degrading treatment inflicted on the applicant, who was detained under conditions which were not appropriate to a person with a mental disorder (violation of Article 3). The European Court acknowledged that in the circumstances the prison authorities had not remained passive but had made efforts to alleviate the applicant’s mental disorder from a medical point of view, but nevertheless found that his medical supervision was not appropriate.
The European Court referred inter alia to a number of provisions in national law concerning the hospitalisation of prisoners with mental disorder, and to Committee of Ministers’ Recommendation No. R (98) 7 on the ethical and organisational aspects of health care in prison (the importance of which the Court underlined). The Recommendation states that prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility adequately equipped and possessing appropriately trained staff. The Court also held that Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital so that he may receive a particular kind of medical treatment, but that under this provision the state must ensure that people are detained in conditions compatible with respect for their human dignity and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, the provision of the requisite medical assistance.
1) Place of detention: Following the European Court’s judgment, the French authorities considered
transferring the applicant to Château-Thierry prison, which specialises in the care of psychopathic detainees. This transfer did not take place because the applicant refused it, a fact which he indicated himself to the Secretariat as early as October 2006. Thus the applicant is still in Riom prison, as he was when the European Court delivered its judgment. In Riom he benefits from professional training and also has contacts with a friend who visits him regularly. This would no longer be possible were he transferred. The Director of Riom Prison stated on 6/04/2007 that the applicant still does not wish to be transferred to another prison, which the applicant confirmed in a letter the same day. According to the last information received from the French authorities, the applicant had an appointment with the enforcement judge on 21/06/2007, with a view to his conditional release, which the applicant is actively preparing. The French authorities will provide information on the outcome of this meeting as soon as possible.
2) Applicant’s health care: The French authorities indicated in December 2006 that the applicant meets a psychiatric nurse each week as well as the prison psychiatrist on request or if the nurse considers it necessary. In his letter of 6/04/2007 the Prison Director said that for the time being the applicant is well and that he “regularly” meets a psychiatrist. The psychiatrist also wrote on 29/03/2007 confirming that he sees the applicant “regularly” in consultation and that his present state of health is compatible with his continuing his detention at Riom.
• Further information is awaited on the progress of his application for conditional release. At this stage, in view of the conclusions of the Court, details would also appear useful on the frequency at which the applicant meets a psychiatrist (according to the information provided, these meetings are “regular”).
If the applicant were not to be released however, information would also be necessary on the steps which would be taken, if his state of health deteriorated once more.
General measures: (No examination envisaged)
1) Origin of the violation: The Secretariat notes that several sources (both public bodies and NGOs, etc.) have drawn attention to structural difficulties concerning the psychiatric care of detainees.
For example, in a report drawn up in 2001, the General Inspectorate of Judicial Services (Ministry of Justice) and the General Inspectorate of Social Affairs (Ministry of Employment and Solidarity) considered that care structures within prisons were not capable of fulfilling their purpose and that the conditions for resorting to psychiatric hospitals were to be criticised. In April 2005 the Health Ministry observed in its plan for psychiatry and mental health for 2005-2008 that there was an overall mismatch between the demand and the effective supply regarding the psychiatric care of detainees. Likewise, in its report on prison conditions in France in 2005, the International Prison Observatory considered for its part that psychiatric care structures were unsuitable and deficient and could only deal with difficulty with mental illness in prisons.
2) Measures adopted: As a preliminary remark, the Secretariat notes that since Decree No. 86-602 of 14/03/1986, hospitals are responsible for detainees’ mental health; Law No. 94-929 of 27/10/1994 harmonised hospitals’ responsibilities in the area of penal health by also making them responsible for prisoners’ bodily health (see the government’s reply to the CPT’s report on its visit to France, 11 to 17/06/2003, document CPT/Inf(2004)7).
The French authorities provided the following information, concerning the measures taken in order to improve the psychiatric care to detainees. Law No. 2002-1138 of 9/09/2002 lays down a new regime for the in-patient treatment of all prisoners with psychiatric disorders, irrespective of the illness and the duration of their committal, where there is a medical decision that the detainee needs full-time care. Special secure units called “UHSA” (unités hospitalières spécialement aménagées) are being set up within, and under the clinical responsibility of ordinary hospitals. The security aspect for the secure units is the responsibility of the prison authorities. Seventeen secure units, representing 705 places, will be created, in two phases. The first phase, which provides for 9 secure units (440 places) will begin in 2008, the remainder being scheduled for 2010-2011. The project has received the agreement of the professional bodies and trade unions representing both professional groups involved, i.e. medical and prison staff, who were consulted respectively in May and June 2006. Ministerial approval was given in autumn 2006 to the list of hospitals in which it is proposed to create secure units (which may be obtained from the Secretariat). The technical and functional requirements have been sent to the regional hospital authorities, which issued invitations to tender as from October 2006, for the first nine units. A budget of 12,6 million euros has been earmarked in 2007 to finance the preliminary studies of conception and programming.
Finally, the French authorities indicated that they had sent the European Court’s judgment to the departments concerned in the Ministry of Justice, and that it would shortly be posted on the intranet site of the Ministry of Justice, together with a commentary.
• The Secretariat is assessing this information.
The Deputies, in view of the debates on this case concerning the individual and general measures, decided to resume consideration of it:
1. at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning the payment of default interest, if necessary;
2. after confirmation of the said payment, with a view to examining the possibility of closing the case, in the light of the most recent details concerning the applicant’s situation and, possibly, the general measures.
39922/03 Taïs, judgment of 01/06/2006, final on 01/09/20065
This case concerns the death of the applicants’ son in 1993, while he was detained in a police cell in which he had been placed overnight to sober up.
The European Court found that the government had not provided a plausible explanation as to the cause of the injuries that resulted in the death of the applicants’ son. The Court further took the view that the inertia of the police officers confronted with Pascal Taïs’s physical and mental distress, and the lack of effective police and medical supervision had constituted a violation of France’s obligation to protect the lives of persons in custody (violation of the substantive aspect of Article 2).
The European Court also found that the French authorities had not conducted an effective – or, a fortiori a quick – investigation into the circumstances surrounding the death of the applicants’ son (procedural violation of Article 2). To reach this conclusion, apart the length of the proceedings which had failed to establish the actual cause of death, the European Court took the following elements into account: no detailed evidence had been taken from the girlfriend of the deceased even though she had been at the police station on the night of the incident ; the fact that the investigating judge had refused to allow a reconstruction of the events ; the making of a post-mortem psychological inquiry, the usefulness of which in establishing the truth was doubtful but which had provided the judicial authorities with a means of minimising or excluding the police officers’ responsibility for their son’s death.
Individual measures: In a letter which reached the Secretariat at the end of April 2007, the applicant indicated that he had asked for the investigation to be re-opened, but that the Public Prosecutor’s Office rejected his application on 12/01/2007. The French delegation specified (26/06/2007) that to reopen the investigation would contravene the res judicata status of a final judicial decision; the investigation at issue ended with a decision by the investigating magistrate that it was not necessary to continue with it. This decision was confirmed on 19/06/2003 by the special chamber of the Bordeaux Court of Appeal competent for questions concerning investigations (chambre d’accusation) and the judgment became final. The delegation added that reopening of the proceedings would in any case be impossible, as the relevant provisions (Art. 626-1 ff., Code of Criminal Procedure) only apply to convictions but not to the dropping of charges.
• Bilateral contacts are under way on these matters.
General measures: (No examination at this meeting)
The judgment of the European Court was sent to the First President of the Court of Cassation and to the Public Prosecutor before the same Court, as well as to the Public Prosecutor before the Court of Appeal of Bordeaux, which was concerned in this case. The French delegation also stated that the judgment would be published and commented on the Intranet site of the Ministry of Justice.
The judgment has also been sent out to the police, and will be commented upon during police officers’ training, in order to draw the consequences of this judgment in their work and to avoid new, similar violations.
The delegation added that, more generally speaking, the French government has maintained important efforts for several years, taking into account the CPT’s recommendations, to improve conditions of detention on remand. For example, a Circular was issued on 11/3/2003 sets out measures to “modernise professional practice and the means devoted to detention on remand (…) in order to guarantee respect for the dignity of detainees”.
•The examination of these measures is under way.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided concerning the payment of the just satisfaction if necessary, and on individual and general measures.
7508/02 L.L., judgment of 10/10/2006, final on 12/02/2007
The case concerns an infringement of the applicant’s right to respect for his private and family life (violation of Article 8) on account of the production and use in divorce proceedings of documents from his medical records. The European Court held that it was only on a subsidiary basis that the courts had referred to the medical report at issue in support of their decisions and that therefore the interference with the applicant’s right to respect for his private life was not was not “necessary in a democratic society”.
Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage. Moreover, the Court stated that, under sections 1440 and 1441 of the new Code of Civil Procedure, anyone may ask the registry of the tribunal concerned, without justifying any particular interest, for a copy of any judicial decision in civil, social or commercial matters, and that the registry must deliver a copy or extracts of the decision (§ 33).
• Information is awaited on measures envisaged to ensure that information regarding the applicant’s private life is not given if a copy of a judgment concerning the applicant were requested.
General measures (no examination envisaged):
• Dissemination of this judgment to the Cour de cassation and to civil courts is awaited. Moreover information is awaited on measures envisaged to provide sufficient safeguards as regards the use in divorce proceedings of data concerning the parties’ private lives (§47).
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual and general measures.
71665/01 Augusto, judgment of 11/01/2007, final on 11/04/20076
The case concerns a violation of the applicant’s right to a fair trial (violation of Article 6 § 1) on account of the failure to communicate to her the report by the doctor appointed by the CNITAAT (national tribunal for incapacity and insurance for industrial accidents) in proceedings to obtain in 1996 a retirement pension on the basis of her incapacity to work.
Individual measures: As regards pecuniary damage, the Court declined to speculate as to the outcome of the proceedings had they been conducted in conformity with the Convention. The Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
• Assessment: Bilateral contacts are underway to assess whether individual measures are necessary in this case.
General measures: Subsequent to the facts of this case, Law No 2002-73 of 17/01/2002 and a Decree of 3/06/2003 changed proceedings before the CNITAAT. Now, the president in charge of the case may appoint one or several medical expert and copies of their reports must be sent to the parties (see in particular § 30 of the judgment).
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning payment of the just satisfaction, if necessary, as well on individual measures if appropriate.
57547/00+ Dumont-Maliverg, judgment of 31/05/2005, final on 31/08/2005
This case concerns the excessive length of the applicant’s detention on remand (from 1997 to 2001; more than 4 years and 1 month) (violation of Article 5§3).
The European Court noted that there had been evidence against the applicant and the judicial investigating authorities had consistently relied on the same grounds when remanding him in custody or refusing his applications for bail. One of these had been the risk of serious prejudice to public order. In the Court’s view, the authorities had at no stage sufficiently established the existence of such a risk as a valid ground for refusing the applicant bail. As to the alleged risk of the applicant’s re-offending or putting pressure on the victims, the Court considered that in the context in which the offences had been committed, credible alternatives to detaining the applicant had been available under the Code of Criminal Procedure. Lastly, the Court noted that the risk of the applicant’s absconding had been referred to in very general terms and had not been substantiated.
Individual measures: when the Court delivered its judgment, the applicant was no longer detained on remand in the sense of the Convention, as in 2001 he was sentenced to a 16-year prison sentence with an 8-year tariff. The applicant appealed against this judgment.
• Information is awaited concerning the applicant’s present situation.
General measures: As in the similar case of Blondet (Section 5.3), it is recalled that legislative measures have been examined in the context of the Muller case (final Resolution ResDH(2003)50), in particular those limiting the conditions and the length of detention on remand, the exceptional character of which has been reaffirmed (Law No. 2000-516 of 15/06/2000 “reinforcing the protection of the presumption of innocence and the rights of victims”).
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided concerning the applicant’s current situation.
51360/99 Marschner, judgment of 28/09/2004, final on 28/12/20047
This case concerns the excessive length of three sets of criminal proceedings against the applicant and of one set of administrative proceedings concerning civil rights and obligations (violations of Article 6§1). The first two sets of criminal proceedings began in 1996 and the third in 1997 (respectively 8½ years, more than 7 years and 2 months and 7½ years); the first and the third sets of proceedings were still pending when the European Court gave its judgment. The administrative proceedings began in 1999 and were also still pending at the date of the judgment of the European Court (5 years and 4 months).
Individual measures: the third set of criminal proceedings was closed by a judgment of the Paris Court of Appeal of 21/01/2004, which has subsequently become final. However, the first set of criminal proceedings, begun in 1996, is still pending. According to the latest information available; the applicant was convicted on 7/03/2007 by the Tribunal de Grande Instance de Paris. He has appealed against this conviction.
• Further information is necessary, regarding the progress of the first set of criminal proceedings and of the administrative proceedings and, if they are still pending, on their acceleration.
1) Length of criminal proceedings: This case presents similarities to that of Etcheveste and Bidart (judgment of 21/03/2002,), closed by Final Resolution CM/ResDH(2007)39, following measures adopted to avoid excessive length of criminal proceedings, in particular at the investigatory stage (inter alia, as from the entry into force of Law No. 2000-516 of 15/06/2000, judicial inquiries are subject to a proceedings schedule and new rights have been granted to parties to avoid extension of proceedings.
2) Length of administrative proceedings: The general measures adopted with regard to this question are presented in the cases of Nicolas and Beaucaire, in the present Section.
▪ Assessment: No further general measure appears necessary.
The Deputies decided to resume consideration of this item:
1. at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning payment of the just satisfaction if necessary;
2. at the latest at their 1028th meeting (3 5 June 2008) (DH), in the light of further information to be provided on individual measures, namely the acceleration of the proceedings.
- Case of length of proceedings concerning civil rights and obligations before administrative courts
2021/03 Nicolas, judgment of 27/06/2006, final on 11/12/2006
22945/02 Beaucaire, judgment of 06/06/2006, final on 06/09/20068
These cases concern the excessive length of proceedings concerning civil rights and obligations before administrative courts (violations of Article 6§1). In the Nicolas case, the European Court recalled that cases which, like the present case, concern labour disputes, are to be dealt with particularly promptly.
In both cases, the proceedings began in 1999 and were still pending when the European Court delivered its judgments.
Individual measures: acceleration of the proceedings, if they are still pending.
• Information is awaited in this respect, especially in the Nicolas case, in view of the particular promptness required. .
1) Excessive length of proceedings: These cases present similarities to that of Sapl (judgment of 18/12/2001) and other cases of length of proceedings before administrative courts, closed by Resolution ResDH(2005)63 following the measures announced by the respondent state, in particular Law No. 2002-1138 of 09/09/2002, providing inter alia recruitment of staff, the creation of new courts and budgetary resources and procedural measures to enable administrative courts both to reduce their backlogs more quickly and reduce the flow of incoming cases. It is further recalled that in the notes on the case of Raffi against France (judgment of 28/03/2006, examined in section 2 at the 982nd meeting, December 2006) reference was made to further measures recently announced by the French authorities, concerning in particular the implication of the Head of the Standing Inspectorate of Administrative Courts (mission permanente d'inspection des juridictions administratives) in order to avoid the excessive length of proceedings before administrative courts.
2) Effective remedy: In the case of Broca and Texier-Micault (judgment of 21/10/2003) the European Court found that a remedy now exists in French law whereby complaint may be made against the excessive length of proceedings before administrative courts, but that applicants could not be required to exhaust it in the framework of applications lodged before 01/01/2003 (as in these cases).
As also noted in the Raffi case mentioned above, there has been a change in this respect: since 01/09/2005, this remedy falls under the exclusive jurisdiction of the Conseil Etat; thus applications lodged on this basis will be settled promptly, avoiding any excessive length of proceedings to engage the state's responsibility
• Assessment: in the light of the foregoing, no further general measure is necessary.
1. decided to resume consideration of the Beaucaire case at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. decided to resume consideration of both items at their 1028th meeting (3 5 June 2008) (DH), in the light of information to be provided on individual measures, namely the acceleration of the proceedings if still pending, taking due note of the requirement for particular promptness in the Nicolas case;
3. recalled that the other execution measures required had already been taken.
- 3 cases against Georgia
40765/02 Apostol, judgment of 28/11/2006, final on 28/02/2007
The case concerns a violation of the applicant’s right to a fair trial due to excessive restriction of his access to enforcement proceedings concerning a final judgment given in his favour on 21/11/2001. This judgment, remained unenforced as the applicant was unable to pay the court dees, demanded in advance, for the enforcement proceedings (violation of Article 6§1).
Because he was unable to bear “preliminary expenses associated with enforcement measures”, the authorities refused to initiate the enforcement proceedings.
Individual measures: The applicant did not submit any claim for just satisfaction. The Court held that Georgia should use all appropriate means to ensure enforcement of the judgment of 21/11/2001.
• Information is awaited on the execution of the judgment of 21/11/2001.
General measures: The Court stated that by placing the responsibility of funding the organisation of the enforcement proceedings on the applicant, the state tried to escape its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice.
• Publication of the Court’s judgment and its dissemination to the ministries involved in this case seem necessary. Moreover, information on other measures envisaged to avoid repetition of the violation found is awaited
The Secretariat is awaiting the reply of the Georgian authorities to its initial-phase letter of 16/07/2007 inviting them to present an action plan for the execution of this judgment.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual and general measures
73241/01 Davtyan, judgment of 27/07/2006, final on 27/10/2006
68622/01 Danelia, judgment of 17/10/2006, final on 17/01/20079
The Davtyan case concerns the lack of effective investigations into the applicant's complaints of 9/11/1999 concerning ill treatment allegedly suffered in June 1999, while he was in police detention (violation of Article 3). The European Court stressed in particular that the mere launching of an inquiry, which was interrupted at an early stage without ever leading to a final decision, could not be considered to comply with the requirements of the Convention.
The Danelia case also concerns the absence of an investigation by the authorities to determine the possible responsibility of agents of the Ministry of the Interior in alleged torture suffered by the applicant while in police custody (violation of Article 13); this case also concerns the fact that it was impossible for the applicant to be examined by independent experts (violation of the procedural aspect of Article 3).
Individual measures: Mr Davtyan was released in September 2005. The European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained. Mr Danelia is no longer in detention. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
The Committee's consistent position in this kind of cases is that there is a continuing obligation to conduct investigations where a procedural violation of Article 3 is found. Information has been requested from the Georgian authorities as to whether a fresh investigation is possible into the events at issue in these two cases.
By letter of 27/03/2007, the Georgian authorities mainly reiterate the arguments relied on before the Court in the framework of the complaint concerning Article 3 and add that the applicant, Mr Davtyan, did not lodge an appeal against the prosecutor’s decision of 10/12/1999 refusing an investigation. For that reason they conclude that there is no legal basis to start the investigations in the Davtyan case again. As regards the case of Danelia, no reply has been received to date.
A letter specifying what Georgia’s obligations are regarding individual measures was sent to the Georgian authorities on 23/08/2007.
• Information provided by the Georgian authorities (letter of 27/03/2007): Several measures have been taken to eliminate torture and ill-treatment during detention. Article 92 of the Law on Imprisonment provides that every person who enters the prison shall undergo medical examination. Any information regarding injuries is noted in so called “Krebsi” (Daily Notes) of the Penitentiary Department which is automatically transferred to the Unit Supervising the Penitentiary Department and Human Rights Protection Unit of the Prosecution Service of Georgia. In accordance with Article 263 of the Code of Criminal Procedure, this information is enough automatically to start a preliminary investigation. An investigation may also be initiated on the basis information received from physical or legal persons, local government bodies, officials, operative-investigative authorities and mass media.
The statistical data for 2006 show an increase in the number of investigations into allegations of torture and ill-treatment. This increase is the result of the government’s willingness to investigate each case of abuse. In 2006 investigation was initiated into 137 cases of torture and ill-treatment. Criminal cases against 16 officials were submitted to court for trial. Sentence was passed against 7 officials in 4 criminal cases.
Lastly, several training programmes have been organised for the security forces, in particular by the Training Centre of the Prosecutor's Office (created in 2006) and the Training Centre at the Ministry of Internal Affairs (created in 2004). A Code of Ethics for Prosecutors and a Code of Ethics for the Police were adopted in June 2006.
• Assessment: A copy of the texts quoted in the letter mentioned above (in particular an English or French version of the articles of the CCP) would be useful in order to finalise the evaluation of this information; information is awaited on the possibility for individuals to have a medical examination by independent experts; lastly the confirmation of publication and dissemination of these two judgments is awaited.
The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on payment of the just satisfaction, if necessary, as well as on individual and general measures.
- 2 cases against Greece
72081/01 Mavroudis, judgment of 22/09/2005, final on 22/12/2005
The case concerns the failure by the authorities of Thessaloniki University to comply with four domestic judgments delivered between 1990 and 1995, and in particular with judgment No. 793/1995 of the Thessaloniki Administrative Appeal Court (upheld by the Supreme Administrative Court in 1999) which considered that the University was bound to appoint the applicant to a post of lecturer in Byzantine music (violation of Article 6§1).
The case also concerns the excessive length of proceedings before administrative courts: the proceedings relating to the applicant’s appointment began in December 1989 and were still pending when the European Court delivered its judgment; as were two sets of proceedings for damages lodged by the applicant in October 1996 and in December 1998 (violation of Article 6§1).
• Information provided by the the Greek authorities (letter of 23/06/2006): The European Court’s judgment was sent to Thessaloniki University for the adoption of individual measures. The university authorities replied that they wished to await the judgment of the Thessaloniki Appeal Court on the applicant’s 2002 appeal against the University’s “special election body” (hearing scheduled for 07/12/2006). No new information has been received since then.
• Information is thus urgently awaited as to whether Thessaloniki University has executed the domestic judgments in favour of the applicant and on any measures taken or envisaged by the Greek authorities to achieve, to the extent possible, restitutio in integrum for the applicant.
• Information is also urgently awaited on measures taken or envisaged to accelerate the pending proceedings, particularly in view of the second violation.
1) First violation of Article 6§1: see Final Resolution ResResDH(2004)81 in the Hornsby case and other cases against Greece.
2) Second violation of Article 6§1:
• Measures adopted: Greece has adopted a number of legislative and other measures with a view to accelerating proceedings before administrative courts (see Final Resolution ResDH(2005)65 in the case of Pafitis and others and 14 other cases against Greece, adopted on 18/07/2005). Additional measures to provide an effective domestic remedy for this kind of violations are currently under way (see Interim Resolution CM/ResDH(2007)74 of 06/06/2007).
• Additional measures required: Additional problems in this field have been highlighted in more recent judgments and are being addressed by the Greek authorities under the Committee’s supervision (e.g. the Manios case, Section 4.2, 997th meeting, June 2007).
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning individual measures..
- Case of length of criminal proceedings
26763/04 Dalidis, judgment of 21/09/2006, final on 21/12/200610
- 3 cases against Hungary
37251/04 Csikós, judgment of 05/12/2006, final on 05/03/200711
This case concerns the violation of the applicant’s right to a fair trial and his rights of defence due to a judgment confirming his conviction and increasing his sentence to four years’ imprisonment (from 3½ years’ handed down on 13/10/2003) by the Heves Country Regional Court in a closed session and in the absence of both the applicant and his lawyer (violations of Articles 6§1 and 6§3(c)).
The European Court found that the applicant’s sentence should not have been increased, as a matter of fair trial, without him or his lawyer being present at the appellate court’s session.
Individual measures: The European Court recalled its case-law to the effect that where an individual has been convicted by a court in proceedings which did not meet the Convention’s requirement of fairness, a retrial, reopening or review of the case, if requested, represents in principle an appropriate way of redressing the violation.
The Secretariat notes that section 406 §1 b) of the new Code of Criminal Procedure, which entered into force in July 2003, provides the possibility of reviewing final court decisions following Strasbourg judgments.
• Information is awaited concerning the applicant’s personal situation and as to whether in the specific circumstances he may apply under the provision mentioned above for review of the decision increasing his sentence.
General measures (No examination envisaged at the meeting): The European Court noted that on 26/05/2005 the Constitutional Court annulled section 360(1) of the new Code of Criminal Procedure, which contained the impugned legal provision permitting in camera deliberations to be held on appeal. Nevertheless, the Constitutional Court did so without ordering the review of criminal proceedings in cases of successful complainants who were in a position similar to that of the applicant in the present case.
• Information is awaited concerning the publication and dissemination of the European Court’s judgment; and as to whether the Hungarian authorities are envisaging the adoption of any other general measures in addition to the annulment of section 360(1)by the Constitutional Court, so as to ensure that in similar situations, a convicted person or his lawyer is present if a sentence is increased at appeal.
The Secretariat is awaiting a reply to the initial phase letter.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, as well as on the applicant’s personal situation and whether the applicant may apply for review of the decision increasing his sentence; and in the light of information concerning general measures.
- Cases of length of criminal proceedings
55220/00 Csanádi, judgment of 09/03/2004, final on 09/06/2004
6437/02 Nagy, judgment of 20/12/2005, final on 20/03/2006
These cases concern the excessive length of certain criminal proceedings (violations of Article 6§1). The proceedings began respectively in 1995 and 2001 and were still pending before the courts of first instance when the European Court delivered its judgments.
- In the Csanádi case, proceedings against the applicant were stayed in November 2005 as the authorities do not know where he is. There is an international warrant of arrest out against him at present.
- In the Nagy case proceedings are still pending at first instance. A hearing was scheduled for 14/01/2007.
• Further information is awaited on the state of the proceedings and if appropriate on their acceleration.
General measures: The cases present similarities to the Németh case (see Resolution ResDH(2006)48). Resolution ResDH(2006)48 states that the Government considered that new similar violations could be avoided for the future by informing the authorities concerned of the requirements of the Convention: copies of the Németh judgment have been sent to the Office of the National Judicial Council for dissemination to the competent courts; in addition, the Court’s judgment has been published on the website of the Ministry of Justice www.im.hu .
According to the Hungarian authorities, the length of criminal proceedings does not constitute a large-scale problem, as shown by the small number of such cases pending before the European Court.
It should be noted that the issue of effective remedies against the excessive length of judicial proceedings is being examined in the framework of the Tímár group of cases (982nd meeting, December 2006).
The judgments of the European Court in these cases were published on the website of the Ministry of Justice www.im.hu.
The Deputies decided to resume consideration of these items at the latest at their 1028th meeting (3 5 June 2008) (DH), in the light of further information to be provided on the individual measures, namely the state of the proceedings and, if appropriate, on their acceleration.
- 3 cases against Italy
37119/97 N.F., judgment of 02/08/01, final on 12/12/01
This case concerns an unlawful interference with the freedom of association of the applicant, who is a judge. In 1994 the Supreme Judicial Board (CSM) imposed disciplinary sanctions on the applicant on account of his membership of the freemasons from 5/03/1991 to 3/10/1992.
The European Court considered that the legal basis of the sanction, i.e. Article 18 of Royal Decree No. 511 of 31/05/1946 combined with a 1990 directive of the CSM, was not sufficiently clear, specific, or predictable (violations of Article 11).
Individual measures: The applicant was given a warning on 25/11/1994, which was subsequently confirmed by the Court of Cassation. In a letter of 11/09/2006 he complained of a series of negative consequences for his judicial career, including:
- denial of promotion by the CSM, 13/07/2000;
- refusal by the CSM to reopen the disciplinary proceedings following the European Court’s judgement, on 27/06/2002;
- refusal by the CSM to mention the Court’s judgment in his professional file, on 30/07/2002;
- refusal by the CSM on 2/04/2003 of career development in respect of the period 16/10/1997 to 16/10/2000;
- the negative assessment of the Milan Judicial Council on 2/02/2005 concerning his application for a post of Section President in the Appeal Court.
• Measures taken by the authorities
- The denial of promotion on 13/07/2000 was overturned by a decision of the regional administrative tribunal on 11/07/2002. In its decision the tribunal confirmed the case-law to the effect that any fact, without restriction, concerning a candidate may be taken into account in relation to his career development, including those at the origin of a disciplinary sanction. On the other hand, the CSM had only considered those facts, without considering their potential repercussions on the present or future career of the applicant. The Ministry of Justice appealed against this decision on 1/10/2002, and a decision is still awaited from the Council of State.
- On 23/07/2003, the CSM decided to add the judgment of the European court to the applicant’s professional file.
• Assessment of the Italian authorities: The Italian authorities contend that the disciplinary sanction as such has never been taken into account in relation to the applicant’s career; and that the authorities have always limited themselves to the fact at the origin of the sanction. They take the view that this fact is subject to discretionary assessment which, in principle, is beyond the scope of any supranational supervision. What is more, the CSM, in its decision of 2/04/2003, aligned itself with the regional administrative tribunal as it approved career advancement for the applicant as from 16/10/2000. With regard to the earlier period, i.e. from 16/10/1997 onwards, the assessment is still negative, in the view of the Italian authorities on account of the same freedom of appreciation. That also goes, apparently, for the negative opinion of the Milan Judicial Council which assessed the applicant’s candidature in relation to others. Finally, the Italian authorities state that, insofar as the disciplinary sanction was not examined as such, the request to reopen the disciplinary proceedings is without merit.
• Secretariat’s assessment: The disciplinary sanction imposed in violation of the Convention has not been erased. It remains a factor in the applicant’s legal situation because the legal system provides no direct remedy to redress violations found by the European Court. If the situation in the respondent state does not permit the erasure of the formal sanction, it is appropriate that the Committee of Ministers at least ensures that it has no further effect on the applicant. This has nothing to do with the exercise of the authorities’ right of discretionary appreciation concerning the development of the applicant’s career.
Nonetheless, in order that the execution of the Court’s judgments should not be simply theoretical or illusory, it is necessary to make sure that the sanction – which exists – is not put into practice. In this respect, the administrative tribunal’s decision to set aside the denial of promotion is positive in that it underlined that the fact at the origin of the disciplinary sanction was virtually the sole reason justifying the refusal to develop the applicant’s career – without taking account of his recent, positive appreciation reports. That decision was nonetheless appealed before the Council of State, and it is proper to await that body’s conclusions in the matter before deciding whether the consequences of the violation have been effectively erased. The Secretariat wrote on 02/5/2007 requesting information on the state of these proceedings.
• Recent developments: In 2005, the applicant seised the court, relying on Articles 1, 11 and 46 of the convention. He alleged that the Italian authorities had not executed the Court’s judgment of 2/08/2001, having refused to annul the disciplinary sanction or to reopen the domestic proceedings. By a decision of 3/05/2007 the Court declared this application inadmissible. It observed that even though in similar cases (see the Maestri case, until recently examined jointly with the present case, now in section 6.2) retrial or reopening of proceedings were considered in principle to be an appropriate means of remedying the violation, such an indication was not included in the 2001 judgment.
In a letter dated 11/09/2007 the Italian delegation intimated to the Secretariat that in view of the Court’s decision of 3/05/2007, the present affair should be closed. It underlined that whilst the Court had mentioned the requirement to erase the consequences of the sanction in the Maestri case, it indicated in the decision of 3/05/2007 a contrario that the same did not apply to the N.F. case. In the delegation’s view, the Court had limited itself to awarding a sum is respect of all counts of damage.
In the light of the Court’s decision of 3/05/2007 and the comments fof the Italian delegation, the Secretariat is in the process of examining whether the measures already taken in this case are actually all that is needed to achieve proper execution of the judgment.
General measures: The problem of the ambiguous legal basis was resolved by a guidance adopted in 1993 which sets out clearly the incompatibility of membership of the freemasons with the exercise of the functions of judge. This guidance was adopted after the applicant had ceased to be a mason but before the proceedings against him had begun.
The European Court’s judgment in the N.F. case has been brought to the attention of the competent judicial authorities. The judgment was also published in the legal journal Il Foro italiano, No. 11 of 2001 as well as in Il Sole 24 Ore - Guida al Diritto, No. 39 of 13/10/2001.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH).
30595/02 Bove, judgment of 30/06/2005, final on 30/11/2005
The case concerns the failure by the Italian authorities to implement court decisions ordering the progressive re-establishment of relations between the applicant and his daughter, who was recognised by both parents at her birth on 19/01/1995. On 22/09/1996, the Naples Youth Court gave custody to the mother, with visiting rights to the father but because of a dispute between the parents, the court also instructed the social services to supervise the visits. Since June 2000, meetings have been limited, as the mother had accused persons close to the applicant of sexual abuse of the her daughter. These accusations were dismissed without further action in April 2001. Nonetheless, although the courts always recognised the father’s visiting rights, he has had no opportunity to meet his daughter since 2002 and the situation has deteriorated to the point that they have no further contact
Under these circumstances, the authorities had not made a reasonable effort to facilitate family reunion, despite repeated, prolonged and ultimately ineffective legal action by the applicant. The European Court noted that the necessary assistance had not been provided to promote contacts (violation of Article 8).
Individual measures: In January and March 2006, two meetings took place between the daughter and a judge of the court in the presence of a psychological adviser. The conclusion was that no significant change in the daughter’s attitude of rejection was possible without a change in the mother’s attitude.
The Children’s Section of the Naples Court of Appeal issued a decree on 22/03/2006 in which it:
- recognised both parents’ authority in respect of the child;
- vested sole custody of the daughter with the mother;
- suspended contacts between father and daughter;
- ordered mediation between the parents to be continued.
Accordingly the social services organised five encounters between the parents in 2006 (28/01, 3/05, 5/06, 25/06, and 27/09). A report dated 10/07/2007 by the social services reveals five further encounters in 2007 (28/01, 8/02, 12/03, 2/04, 14/05) and concludes that the mediation was being conducted in an increasingly constructive spirit. Both parents have indicated their agreement to continuing in this way.
• Assessment by the Italian authorities: In the light of these efforts and results, the Permanent Representation considers that this case may be closed.
• Assessment by the Secretariat: It appears that the efforts of the Italian authorities are very encouraging and suggest good prospects of family reunion. A first concrete outcome i.e. a meeting between father and child (which has not taken place since 2002) might be close.
The applicant’s counsel wrote on 14/09/2007 complaining of the court decision suspending father/daughter contacts. He adds moreover that encounters between the parents had not taken place regularly (none in July, August or September 2007) on account of the mother. He therefore considers that the Court’s judgment is not being executed satisfactorily.
General measures (No examination envisaged)
In response to the request that the European court’s judgment in this case should be published and disseminated, the Ministry of Justice published it in its Bulletin. This has been published on the Ministry’s internet site (http://www.giustizia.it/news/bollettino-bollettino.htm) since earlier in 2007, and mainly contains information about judicial administration such as staff career news.
• Information awaited: as the judgment has been translated in its entirety into Italian, it would be useful to know whether it will also be published in the part of the site specifically devoted to judgments of the European Court (http://www.giustizia.it/pol_internaz/tutela/tutela_du_indice.htm).
In this respect and in a general context, the Secretariat wrote to the Italian delegation on 01/02/2007 stressing the importance of publishing judgments on internet so as to raise the awareness of all actors in the judicial system as well as the public of the requirements of the convention as interpreted by the Court.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH).
39221/98+ Scozzari and others, judgment of 13/07/00 – Grand Chamber - Interim Resolutions ResDH(2001)65 and ResDH(2001)151
The case concerns two violations of Article 8, in the circumstances set out below due, in the first place to the placement and maintenance of two minor children taken into state care in a community called “Il Forteto”, and secondly to the authorities’ failure in their duty to preserve the possibility of rebuilding family links between the children and their mother through regular visits.
The European Court considered that the suspension of the parents' authority over their children and the provisional removal of the children from the family had been justified because they had been subjected to repeated acts of violence and the elder had been sexually abused by a family friend (§§ 148-151).
In finding these violations, the European Court took into consideration the following points in particular:
1) Placement of the children in Il Forteto:
- Two of the people responsible for running the community had been convicted in 1985 of ill-treating and sexually abusing handicapped persons placed in the community’s care (§§32-34) gave rise to serious misgivings (§§206-208) called for particular prudence and vigilance (§216);
- These individuals continued, contrary to the assurances given by the respondent government, to play a very active role in supervising children. Some Forteto workers had contributed significantly to delaying or setting obstacles to the enforcement of the decisions of the Florence Children's Court authorising contacts between the first applicant and her children (§209). In general, the workers of Il Forteto exercised a growing influence over the children, distancing them from their mother (§210).
- There was uncertainty concerning who exactly was in charge of the children, as various people presented themselves as foster-parents (§211);
- No term was set for the placement and no valid justification was given for this (§214).
However, the European Court was not called upon to rule on Il Forteto as such or on the general quality of care given to the children confided to it. Nor was it required to determine whether the confidence vested in the community by many institutions was justified or not (§203).
2) Meetings between mother and children:
- The meetings organised between 1997 and 2000, which were sporadic given their number and frequency (two in virtually three years) were essentially pointless seen in the light of the principles flowing from Article 8 (§178) which require effective and consistent implementation of court decisions favouring parent/child encounters aimed at rebuilding relationships with a view to possible family reunion (§181).
- The social services exercised too much autonomy in carrying out the Youth Court’s decisions, demonstrating a negative attitude towards the applicant which, although without any convincing objective basis, contributed to deepening the rift between her and the children (§179)
- The Children's Court condoned the social services' action without assessing it in depth (§179).
The circumstances resulted in the frustration and misdirection of the court's decisions authorising contact between mother and children, with the attendant risk of bringing about irreversible separation. From the procedural point of view, it may be noted that the first applicant, who has double Italian and Belgian nationality, acted before the European Court in her own behalf and in the children's (§§ 138-140). In 1999, the Belgian government intervened in the proceedings and submitted observations (§8).
• The children's present situation: The placement was maintained until the elder son attained his majority in 2005 and continues in respect of the younger son, who was only born in 1994 and will thus not reach majority until 2012. He is currently in the care of a married couple who are members of the Forteto.
• Measures taken to date: The information provided by the authorities concerning the various questions related to the execution of this case (see in particular ResDH(2001)65 and ResDH(2001)151) and in reply to the demarches by the Belgian authorities, are summarised below.
a) Actual conditions of the children's care and the potential influence of persons convicted of ill-treatment:
In July 2001, subsequent to the European Court's judgment, the Florence Children's Court named the people in charge of the children: a couple living, but maintaining an autonomous existence, in the Forteto community and, crucially, exercising “exclusive and direct” and individual responsibility. Thus the Community as such exercised no role of care or guardianship over the children.
It transpires from available general information, including two reports drawn up by the Tuscan regional authorities in 2000 and 2001, that legally speaking, the community is an agricultural co-operative and that the former community leaders with criminal records were no longer involved in bringing up children. Moreover in 2003 the Supreme Judicial Council noted in a study concerning the efficiency of the supervision of judicial placement orders, that the people concerned no longer exercised any activity in contact with children. The Italian authorities are open to visitors to the establishment, a possibility of which the Belgian authorities took advantage on 11-13/06/2001.
At the outset of the execution of this judgment, it was proposed that the children, who also have double nationality, should be placed in Belgium, in proximity to appropriate, specialised facilities (see in particular Interim Resolution ResDH(2001)65 as well as the first applicant's appeal to the Italian courts on 16/10/2001). This solution was rejected by the Italian authorities because the children did not wish to leave Italy and live in Belgium.
b) Duration of the placement:
In the 1997 proceedings called into question by the European Court, the Florence Children's Court when suspending parental authority on account of the parents' behaviour, decided on a placement of unlimited duration. National law (in particular Article 333 of the Civil Code) does not require the fixing of a term where parental authority has been suspended, unlike other situations (see “General measures” below). Even so, in July 2001 the Children's Court, citing the judgment of the European Court, remedied the lack of a temporal limit by fixing a term of three years. In 2002 the Florence Appeal Court ruled that the placement should end in June 2003. Then, on 9/09/2005 it was decided in the light of the satisfactory results of the placement of the younger son with the couple in question, to extend the placement to 2007.This decision has been appealed (see below).
c) Proper enforcement of court decisions:
Following the European Court's judgment, the social service officials criticised in the case were replaced. The Florence Court, in several subsequent decisions, exercised strict control over the development of the mother/children relationship pursuant to Italy's obligations under the judgment. It concluded, not least in a decision of 9/09/2005, that the supervision of the implementation of the decisions concerning visits had been effective, noting in this respect the change of social service officials involved and the fact that fresh judges were now in charge of the case.
d) Encounters between mother and children:
• 2001-2004: From December 2001 onwards, regular visits were ordered by the judge with progressing frequency: first monthly, then in 2002 thrice monthly and in 2004 on a weekly basis, away from the children's place of residence. Psychological assistance programmes were set up to help the applicant restore good relations with her children. However, the applicant almost constantly urged that the placement of the children should be ended or that they should be placed elsewhere, preferably in Belgium.
• Suspension of visits in 2005: In January 2005 the Public Assistance Department reported that on 11/01/2005 the applicant had attempted during a visit to remove her younger son with the assistance of an unnamed man. The Children's Court issued an emergency order on 18/01/2005 suspending visits and summoning the parties to appear before it. The children were heard at a first hearing on 8/03/2005; a second hearing scheduled for 15/032005 was postponed due to difficulties in summonsing the parents. At the third hearing on 9/04/2005, the applicant failed to appear due to ill-health whilst the father could not be found, being pursued by the police. At the fourth hearing on 17/05/2005, only the applicant’s lawyer was heard, he requested a postponement of the hearing on account of the applicant’s illness. At a fifth hearing on 21/06/2005, the applicant and the elder son were heard in the presence of counsel. Finally, the Children's Court, having investigated the events of the preceding January, issued a ruling on 9/09/2005 authorising the resumption of encounters between the mother and the younger son, in protected premises and on condition that the mother accepted appropriate psychological preparation. This decision was enforceable with immediate effect. The applicant applied to have it reviewed by the Appeal Court on 22/02/2006. The two children opposed this application, whilst the Belgian government intervened in the proceedings on the side of the applicant.
• 2005-2007 – impasse: Following the Children's Court's ruling of September 2005, co-operation between the applicant and the domestic authorities did not demonstrate much progress, the former demanding through her counsel the direct resumption of visits whilst the latter insisted that she should first submit to the psychological preparation programme. This impasse still holds today.
• Information is awaited concerning the outcome of pending proceedings as follows:
- Following the events of January 2005, the preliminary-hearing judge instituted criminal proceedings against the applicant and the children’s father for bodily harm and attempted kidnapping. The hearing was fixed for 8/10/2007 before the ordinary first-instance court.
- With regard to the proceedings to review the Youth Court decision of 9/09/2005, the Florence Appeal Court ordered reports and fixed a hearing for 28/11/2007.
• Recent information: On 28/08/2007, the Belgian government sent a list of questions concerning the individual measures taken or planned, to encourage the resumption of contacts between the child and his mother. In early September, the Secretariat organised meetings between the delegations concerned with a view to clarifying the issues remaining to be resolved in the case. At these meetings, the Italian delegation undertook to provide answers to the Belgian questions. In view of the willingness expressed by the Belgian authorities in a letter from the Permanent Representative of Belgium to the Director General of Human Rights and Legal Affairs of 24 July 2007 (see document DD(2007)325bis, the submission by the elder son) the possibility was also considered of meeting with the elder son in accordance with his express wish.
1) Strengthening the supervision of care measures:
• Jurisdiction of Children's Courts and prosecutors: The 29 Children's Courts in Italy have specialised competence within their respective districts. They sit in a college consisting of two stipendiary judges and two honorary judges designated by the Supreme Judicial Board. A special prosecutor's office intervenes before the Children's Court and may demand either criminal or civil measures. Children's Courts are competent for questions of parental authority, fostering and care orders. Under Article 333 of the Civil Code, they have the power to suspend parental authority in case of harmful behaviour. Law No. 149 of 28/03/2001 on the Right of Minors to their own Family amended this article to the effect that such measures may be revoked at any time and to provide that parents and minors may be assisted by counsel at the state's expense where provided by law. The amendment also provides the possibility of separating a parent or partner who is demonstrated to have ill-treated or abused a child.
• Powers of guardianship judges and guardians: Guardianship judges sit in the ordinary courts rather than children's courts, exercising a supervisory function (Article 344 of the Civil Code). At the material time, these judges were also responsible for regular and ad hoc inspections of both public and private institutions for the protection of minors. Law No. 149 of 2001 transferred this competence to prosecutors before children's courts. Given the fact that the children are under the responsibility of specific persons, their situation fall under the general supervision of the guardianship judge. Where parental authority is abandoned or suspended by the children's court, the guardianship judge designates a guardian to represent the minor in civil affairs and to attend to the ward's personal and patrimonial interests. Guardians must possess the qualities required by law (Articles 348 and 250 of the Civil Code).
• Law No. 149 of 2001: This Act bears the title “the Right of Minors to their own Family” and partially amends Law No. 184 of 1983 which regulates adoption and state guardianship. In its general principles, the new Article 1 provides that “All children are entitled to grow up in their own family...”. The new provisions apply to cases in which the birth-family agrees with measures by the authorities but also strengthen the general principles of interpretation with regard to enforced placement of minors. Under Law No. 184 as amended, placement orders must indicate how the person given responsibility over a child is to exercise that responsibility, and how the members of the family of origin are to maintain their links with the child thus placed in care. The order must also lay down the duration of the placement, which must be fixed in regard of all measures aimed at reintegration with the family of origin (Article 4, paragraphs 3 and 4). The social service department responsible for the placement must inform the judge of any significant event and must present half-yearly reports on the situation in the birth family. It must facilitate the minor's relations with, and return to its birth family (Article 5, paragraph 2).
A 2003 Opinion by the Supreme Judicial Board (CSM) noted that the reinforced supervisory system instigated by Law 149/2003 is generally satisfactory. The CSM also requires that where children are placed with carers who have criminal records, youth magistrates must (a) exercise special attentiveness and vigilance, (b) duly justify their placement decisions, (c) examine carefully the advisability of making such placements continuous and (d) take due account of the legitimate preoccupations of those concerned.
2) Other measures taken:
The Italian authorities indicate that seminars have been organised to raise the awareness of youth magistrates and social workers of the requirements of the Convention as interpreted by the Strasbourg case-law in respect of family law.
The European Court's judgment has been translated and published in Revista Internazionale degli Diritti del'Uomo, No. 3/2000, pp. 1015 - 1046.
The Deputies decided to resume consideration of this case at their 1013th meeting (3-5 December 2007).
- 1 case against Latvia
73819/01 Estrikh, judgment of 18/01/2006, final on 18/04/200712
- 1 case against Luxembourg
24720/03 Alliance Capital (Luxembourg) S.A, judgment of 18/01/2006, final on 18/04/2007
The case concerns an excessive interference with the applicant company’s right of access to a court and consequently, with its right to a fair hearing (violation of Article 6§1). Proceedings were brought against the applicant company by two other companies (Allianz Kapitalanlagegesellschaft and Allianz Asset Management) and the first-instance and appeal courts ordered the applicant to change its business name. Following a material error made by the Court of cassation, which forgot to mention one of the two companies in its judgment, the applicant company could not obtain a decision in its appeal in respect of one of the companies and was presented with two diametrically opposed findings in a dispute concerning applications which were related, not to say identical.
Individual measures: It transpires from the judgment that the dispute between the applicant company and the two other companies was settled (§21)
• Information is awaited as to whether measures are envisaged to correct the material error which led to the violation a,d resulting in the existence of two diametrically opposed sets of findings (§41).
General measures: The European Court, which considered the merits together with the alleged inadmissibility on grounds of failure to exhaust domestic remedies, noted that the applicant company had no effective means of redress against an error for which it could not be held responsible.
• Information provided by the Luxembourg authorities (letter of 4/07/2007): the judgment of the Court has been published in CODEX, January - February 2007.
• Dissemination of the Court’s judgment to the courts involved in this case seems necessary. Moreover information is awaited on measures envisaged to give parties effective redress for this kind of error.
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided on individual and general measures.
- 1 case against Moldova
30649/05 Holomiov, judgment of 07/11/2006, final on 07/02/200713
- 3 cases against the Netherlands
- Case concerning freedom of expression
10807/04 Veraart, judgment of 30/11/2006, final on 28/02/2007
The case concerns an interference with the applicant's freedom of expression which the European Court found not to be “necessary in a democratic society” (violation of Article 10).
The applicant is a lawyer and, at the material time, was representing certain members of a family accused by their daughter and sister in a television programme to have committed several crimes against her (including sexual abuse resulting in five pregnancies, three infanticides, one forced abortion and the sale of a baby). The woman in question had stated that she based these claims on memories which she had repressed but had been able to recover with the aid of a therapist. In a radio programme on the issue, the applicant questioned the professional qualifications and competence of this therapist and expressed the opinion that he and his ilk were not fit to administer psychotherapy to patients. The therapist in question lodged a complaint against the applicant with the Dean of the local Bar Association. The Amsterdam Disciplinary Council declared the therapist's complaint unfounded. The therapist appealed however, and the Disciplinary Appeal Tribunal found that the applicant's statements had been unnecessarily wounding for the therapist and declared the complaint well-founded. He was given an admonition.
The European Court considered that an acceptable assessment of the relevant facts required an investigation into at least whether or not the therapist had the professional competence to establish the truth of the woman's accusations by psychotherapy alone, or whether the applicant was in a position to substantiate and justify his statements himself. The Disciplinary Appeals Tribunal did not conduct such an investigation and its decision was thus based on an inadequate assessment of the facts and the reasons given therefore lacked relevance.
• Information is awaited on measures taken or envisaged to remedy the consequences of the violation for the applicant. In particular, information would be useful as to whether the admonition is still inscribed on the applicant's professional record. If so, the erasure of this admonition would seem necessary.
General measures: The problem at issue in the judgment does not seem to be a systemic one. The judgment was published in EHRC 2007/17 pp 166-174. Given the direct effect of European Court's judgments in the Netherlands, all authorities concerned are expected to align their practice to the present judgment.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning individual measures:
50252/99 Sezen, judgment of 31/01/2006, final on 03/07/2006
The case concerns a violation of the applicants’ right to family life due to the refusal by the respondent state to prolong the residence permit of the first applicant, the husband of the second applicant (violation of Article 8).
The first applicant came to the Netherlands in 1989, where he married the second applicant who had been in the Netherlands since the age of seven. The husband received a residence permit for the purposes of forming a family unit and working in the Netherlands. In 1992, he ex jure acquired the right to remain in the Netherlands indefinitely, a right which would expire when he would no longer actually form part of the family unit. In 1993 the first applicant was convicted of a drug offence and sentenced to four year’s imprisonment, of which he served approximately two years. He has not re-offended.
Due to marital problems, the applicants did not live together for some time in 1995/1996. During that period however, their second child was conceived and in June 1996 the applicants resumed cohabitation. In May 1996 the applicants applied for an extension of the first applicant’s residence permit. This was refused. The first applicant had lost his indefinite right to remain in the Netherlands when he ceased to live with his wife. The fact that cohabitation had been resumed did not revive this right ex jure. In view of the first applicant’s criminal conviction the authorities considered that it was justified to deny him further residence. The interference with the first applicant’s right to respect for his family life was held to be justified in the interests of public order and for the prevention of crime.
The European Court found that the second applicant and the applicants’ children cannot, for several reasons, be expected to follow the first applicant to Turkey. Furthermore, the Court found that the present case concerns a functioning family unit where the parents and children are living together, the splitting up of which is an interference of a very serious order with the right protected by Article 8 of the Convention. In conclusion, the Court held that the respondent state failed to strike a fair balance between the applicants’ interests on the one hand and its own interests in preventing disorder and crime on the other.
Individual measures: The first applicant has received a residence permit with retroactive effect as from 20/05/1996, which is valid until 19/01/2008. One of the conditions applicable to this permit is that the applicant exercises family life with his children. The applicant’s lawyer has instituted an objection under Dutch administrative law against this condition, stating that the applicant should be allowed to reside in the Netherlands as long as he exercises family life with his children or his wife.
• Information would be useful on whether the residence permit is expected to be prolonged after 19/01/2008 and whether the authorities are considering inclusion of the exercise of family life by the first applicant with his wife in the conditions applicable to his residence permit.
General measures: Given the direct effect of European Court’s judgments in the Netherlands, all authorities concerned are expected to align their practice to the present judgment. With this aim, the judgment has been published in several legal journals in the Netherlands, in particular the NJCM-Bulletin (2006, No.4, p.510-528), European Human Rights Cases (2006, no.3, p. 303-309) and Nederlands Juristenblad (2006, no. 17, p.952).
The Deputies decided to resume consideration of this case at their 1013th meeting (3-5 December) (DH), in the light of further information to be provided concerning individual measures.
60665/00 Tuquabo-Tekle and others, judgment of 01/12/2005, final on 01/03/2006
The case concerns the Netherlands authorities' refusal to allow Mrs Tuquabo-Tekle's daughter by a previous marriage and living in Eritrea, to join her mother and step-family in The Netherlands and thus develop a family life.
The European Court found that the respondent state had failed in its obligation to strike a fair balance between the applicants' interests (family reunion) and its own interest (controlling immigration) (violation of Article 8). The Court drew attention to the similarity of the case to that of Şen (Section 6.2). The Court further found that, in the particular circumstances of the present case, the fact that the child concerned was older than that in the Şen case, was not an element which should lead to assessing the case differently.
• Information is awaited on progress in ensuring family reunion in this case.
General measures: On 8/09/2006, a new policy was adopted by the Ministry of Justice in cases regarding the right to family reunion of minor children with a parent legally residing in the Netherlands. According to the authorities, the criterion of “factual family ties” used to determine whether a right to family reunion exists, is now interpreted in a manner “similar” to the European Court’s interpretation of Article 8 of the Convention. It is now assumed that a child has factual family ties with the parent concerned if family life within the meaning of Article 8 of the Convention exists. Exception is only made to this rule in cases where the child will live independently from his or her parent and will provide for him- or herself; where the child forms an independent family by engaging in marriage or a relationship; or where the child has responsibility for the care of extramarital children. These three exceptions, none of which applied to the child in the present case, also formed part of the previous policy and have been maintained since in such situations it may be assumed that the child has reached a certain level of independence. In those cases the application of a strict immigration policy outweighs the individual interest of the child to join his or her parents in the Netherlands.
The other conditions (proof of a legal family relationship and the requirement of sufficient funds) also remain unchanged.
The judgment was published in the EHRC 2006, p. 648, no. 11.
The Deputies decided to resume consideration of this case at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning individual measures, namely the family reunion of the applicants.
- 3 cases against Poland
48542/99 Zawadka, judgment of 23/06/2005, final on12/10/2005
This case concerns the violation of the applicant’s right to respect for his family life (violation of Article 8).
The applicant had the right to visit his youngest son, P, born in 1994, in accordance with a settlement concluded with the mother of the child in 1996. In 1997, after obstacles were posed by the mother, he tried in vain to obtain assistance from the court. In the meantime, the mother brought proceedings to establish her parental authority. In May 1997, the applicant took the child. By a decision of 24/02/1998 the Białystok Regional Court limited his visitation rights and on 19/06/1998 the District Court stripped him of all parental rights. In August 1998 the police removed the child from him.
The applicant subsequently seised the Białystok Regional Court to complain of the way in which the exercise of his visiting rights had been obstructed asked the court to help him in enforcing them, but without success. In March 2001, the court informed him that his son had gone to London in May 2000. In August 001, it suspended proceedings concerning his visiting rights because the mother could not be found.
The European Court found that the authorities had been remiss in their obligation to provide the applicant the assistance he would have needed to exercise his parental visitation rights effectively. In particular, the authorities had omitted to encourage the parties to co-operate in implementing the access arrangements. They also omitted to secure concrete and appropriate assistance by competent state agents within a specific legal framework suited to the needs of the separated parents and their under-age child. The Court underlined, that as a consequence, the applicant has permanently lost contact with his child.
• Information provided by the Polish authorities (letter of 07/01/2007): The proceedings concerning the enforcement of the judicial decision of 24/02/1998 on the applicant’s visiting rights had been discontinued at an unspecified date because for more than three years the applicant was not able to indicate the address of his child and his mother. In January 2000, he requested the reopening of these proceedings, but his request was rejected (also at an unspecified date).
According to the authorities, the applicant may institute proceedings on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, if his son is residing abroad, and/or request the reopening of proceedings concerning the execution of the judicial decision concerning his visiting rights.
• Bilateral contacts between the Polish authorities and the Secretariat are under way to assess the need for individual measures.
• Measures taken: The European Court’s judgment has been published on the internet website of the Ministry of Justice www.ms.gov.pl and sent out to the presidents of courts of appeal with a circular drawing judges’ attention to the Court’s reasoning in this case. It has been also sent out to the National Police Commander-in-Chief, who in turn requested the competent directors and commanders to publish it on the Police internet site and to include it in the police officers’ training programme.
• Assessment: in these circumstances no additional measure appears to be necessary.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of the outcome of bilateral contacts concerning the necessity for individual measures.
39199/98 Podbielski and PPU Polpure, judgment of 26/07/2005, final on 30/11/2005
This case concerns the violation of the applicant's right of access to a court due to domestic courts' refusal to exempt him from court fees in respect of an appeal lodged against a judgment concerning his pecuniary claims (violation of Article 6§1).
The applicant, having carried out construction work for the commune of Świdnica, instituted proceedings in 1992 to obtain payment of the amounts due, including contractual penalties and damages for late payment. In 1993 the Wałbrzych Regional Court partially allowed his claims, but rejected those concerning contractual penalties. Following an appeal lodged by the applicant, the Supreme Court annulled this judgment and remitted the case to the court of first instance. Consequently, the applicant increased his claims. By a judgment of 20/02/1995, the Wałbrzych Regional Court ordered the commune to pay nearly 1,8 million PLZ (a tenth of what he had asked for) as penalties and, by a judgment of 23/10/1996, rejected his claims concerning damages. The applicant therefore tried to lodge an appeal against this judgment and requested exemption from court fees. By a final decision of 10/06/1999 the Supreme Court rejected this request and the judgment of 23/10/1996 became final. At this stage of the proceedings, the applicant’s financial claims related to an amount exceeding 3,500,000 PLN (980 800 euros).
Given the importance of the right to a court in a democratic society, the European Court concluded that the judicial authorities had failed to secure a proper balance between the interest of the state in collecting court fees and the interests of the applicant in vindicating his claims through the courts. Thus the imposition of the court fees on the applicant constituted a disproportionate restriction of his right of access to a court.
1) Attempt to reopen proceedings: Following the European Court's judgment the applicant, relying on Article 401, Section 2, of the Code of Civil Procedure, applied for the reopening of the proceedings finally terminated by a decision of the Supreme Court of 10/06/1999. This request was dismissed on 19/10/2005 on the grounds that the Code of Civil Procedure did not contain a clear provision allowing reopening in cases in which the European Court had delivered a judgment in favour of the applicant. This dismissal has been criticised in judicial circles and in the media (see Bulletin No. 2/2005 of the Council of Europe Information Centre in Warsaw).
In November 2005 he attempted to appeal against the Supreme Court's judgment of 19/10/2005 but on 22/12/2005 the Supreme Court declared his appeal inadmissible as not being provided by law. On 07/04/2006 the Minister of Justice sent the applicant a letter in which he joined the Supreme Court's position concerning the interpretation of Article 401, Section 2, of the Code of Civil Procedure and declared himself incompetent to contest the decisions of this jurisdiction.
2) Constitutional complaint: On 12/05/2006 the applicant lodged a constitutional complaint against Article 401, Section 2, of the Code of Civil Procedure as contradictory with the provisions of the Polish Constitution on the superiority of international treaties over domestic laws. On 11/10/2006 the Constitutional Court refused to examine the applicant’s appeal on the ground that it had been introduced out of time, the judge indicating that the time-limit for lodging an appeal ran from the date upon which he had received the Supreme Court decision of 19/10/2005 and not that of 22/12/2005. The applicant’s counsel lodged objection to this decision, but his appeal was rejected on 5/02/2007.
3) The applicant’s situation: The applicant's company has meanwhile become insolvent. On 28/07/2006 he asked the Minister of Justice and the Minister of Finance to stay all judicial and enforcement proceedings related to this insolvency until a decision concerning his constitutional complaint is delivered. The Ministry of Justice informed him on 27/11/2006 and 25/01/2007 that it had no competence to suspend them. Consequently, one set of proceedings is pending (applicant’s letter of 3/01/2007). On 23/01/2007, the applicant refused to allow the bailiff to enter his house and refused to comply with the enforcement proceedings (letter of 23/02/2007). Consequently, criminal proceedings were instituted against him by the police (letter of 24/08/2007).
The applicant complains that, following the violation found by the European Court:
- he does not have the financial means to pay his debts and his enterprise has become insolvent,
- the domestic courts are failing to respect the obligations arising from the European Court's judgment.
He asks the Committee of Ministers to intervene to redress the negative consequences of the violation (in particular the pecuniary damage).
The applicant informed the Secretariat that the Polish government did not intend to reach a friendly settlement making it possible to compensate him for the pecuniary damage resulting from the violation (in a telephone conversation on 30/11/2006).
4) Position of the Polish authorities:
• Information provided by the Polish authorities at the 976th meeting (October 2006): In the opinion of the Polish authorities, no obligation to reopen civil proceedings stems from the European Court’s judgment, even in the light of the Committee of Ministers’ Recommendation No R 2000(2). However, they do not exclude the possibility of amending the Polish Code of Civil Procedure to allow reopening of proceedings in civil cases following judgments of the European Court in the future.
• The Secretariat’s position at their 922nd Meeting (April 2007): Referring to the elements of reflection contained in its document CM/Del/OJ/DH(2007)992, the Secretariat finds, inter alia, that in the circumstances of this case the principle of legal certainty is not contrary to a review or reopening. In the framework of this dispute, the applicant was opposed to the commune.
• Information provided by the Polish authorities (992nd meeting, April 2007): The Polish authorities are of the opinion that the European Court’s judgments have no impact on the domestic judicial decisions. In support of this statement, they invoke Article 41 of the Convention and the principle of legal certainty. Moreover, they underline that the European Court, even though its case-law has not always been coherent, has found several times that the Convention did not impose on a respondent state the obligation to modify judgments or reopen domestic proceedings. In any event, the examination of the compatibility of domestic laws and decisions with the Convention does not fall within the European Court’s competence.
However, the Polish authorities’ position is in line with that of Secretariat, according to which the principle of legal certainty is not crucial in this case, since the commune was the third person against which the applicant was opposed in the domestic proceedings
According to the Polish authorities, certain legal remedies existing in Polish law may allow the applicant to rectify his situation resulting from the violation of the Convention:
- reopening of the civil proceedings on the basis of general rules included in Article 401 of the Code of Civil Procedure, for instance by invoking the partiality of judges;
- action for compensation on the grounds of Article 417 and 4171 of the Civil Code, which governs state tort liability;
- action to establish that a court decision is null and void as contrary to the law; such an action may be instituted on the basis of an amendment to the Code of Civil Proceedings of 22/12/2004.
• Recent information provided by the Polish authorities (10/04/2007): According to the Polish Commission on the Codification of Civil Law, the Convention does not impose on states parties the obligation to reopen domestic proceedings closed by a final judgment; the European Court is not a jurisdiction superior to the domestic courts and it may not assess the compatibility of a judicial decision with the Convention. In this case the outcome of the domestic proceedings, terminated by a final decision, is not in itself contrary to the Convention and thus a reopening, which would allow the applicant to have a second review of his claims, is not necessary.
Moreover, according to this commission, the applicant may request the reopening of proceedings on the basis of the provisions of the Code of Civil Procedure currently in force and the court competent to examine such a request would then be obliged to take into account the criteria stemming from the Convention. Besides that, he could also institute an action on the basis of the amendment of 22/12/2004, by invoking the incompatibility of the judicial decisions with the Convention.
Nevertheless the commission does not exclude the possibility of adopting legislative provisions to solve the problem of the consequences of international courts’ decisions on the domestic legal order.
• Assessment by the Secretariat: The Polish authorities’ position raises the question as to whether the Convention imposes an obligation on respondent states to execute the European Court’s judgments, and in particular the obligation of restitutio in integrum.
Concerning measures proposed by the Polish authorities, the Secretariat notes that:
- the applicant has already asked for reopening of proceedings on the basis of Article 401 of the Code of Civil Procedure, invoking the lack of possibility to act, and that his request has been rejected (see above);
- as regards the use of Article 417 of the Civil Code, governing the general rules on the State’s tort liability, it is not clear whether the use of this remedy would be efficient in the case of the applicant. In this case the possible damage resulted from court decisions. Thus, according to Article 4171 of the Civil Code, the applicant has to request to the judge to find that the impugned decisions has been delivered in contradiction with the law (amendment to the Code of Civil Proceedings of 22/12/2004). However, the latter provision is applicable only to decisions which became final after 01/09/2004.
Moreover, a similar issue may be raised in the case of Kania (judgment of 10/05/2007, final on 10/08/2007; Section 2), concerning the lack of exemption from court fees for lodging a point-of-law appeal in proceedings instituted against the State Treasury.
• Bilateral contacts are under way to assess the proposed individual measures.
General measures: This case presents similarities to the Kreuz case (judgment of 19/06/01) (Section 6.2), in which measures have been already taken.
The Diet adopted a new Act on court costs in civil cases. This law entered into force on 2/03/2006, and brings together in a single text questions of general principle related to the imposition of costs, their amount and procedures for exemption, these questions having previously been determined by different sets of rules (in particular the 1967 Act on court costs and the Civil Code).
The new law provides fixed amounts for costs in most court proceedings; previously, the general rule was that costs should be proportional. In addition, they simplify the calculation of proportional costs, which remain applicable in most disputes over assets. At present, proportional costs are equivalent to 5% of the value of the asset in dispute, with a minimum of 30 PLN and a maximum of 100 000 PLN.
The new aw also lays own the rules for exemption from costs. Parties to a dispute may be exempted, in whole or in part, by the judge if they make a declaration to the effect that they could not pay them without risking their living or that of their family. Such declaration must be accompanied by a detailed statement of their financial situation. In any event, they must pay the minimum charge of 30 PLN.
The possibility of exemption is available equally to physical and legal persons as well as organisational entities without legal personality.
The Deputies decided to resume consideration of this case at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning the individual measures.
11562/05 Byrzykowski, judgment of 27/06/2006, final on 27/09/200614
- 3 cases against Portugal
30533/03 Carvalho Acabado, judgment of 18/10/2005, final on 15/02/2006
21240/02+ Companhia Agrícola de Penha Garcia, S.A. and 16 other cases “Agrarian reform”, judgment of 19/12/2006, final on 19/03/200715
These cases concern the failure by the respondent state to strike a fair balance between the public interest and the applicants’ right of to the peaceful enjoyment of their property (violation of Article 1 of Protocol No.1). The applicants were all owners of land expropriated or nationalised in the framework of an agricultural reform. The final amount of compensation, and the amount of interest the applicants were entitled to, were only determined considerably later. In the Carvalho Acabado case, the applicant appealed this final determination and, in May 2005, at the time the applicant submitted her observations to the European Court, the appeal was still pending and the relevant amounts not yet paid.
• Information is awaited on the current state of the domestic proceedings in the case of Carvalho Acabado and on whether in the meantime the applicants in that case and in the case of Carneiro Vieira da Silva and others have received the compensation awarded and, where appropriate, the interest due.
General measures: The cases present similarities to that of Matos e Silva LDA and others against Portugal (judgment of 16/09/1996) in Section 6.2, following the enactment of a legislative reform of administrative courts (Legislative Decree 229/96) aimed inter alia at accelerating administrative proceedings.
The Deputies decided to resume consideration of these cases at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on payment of the just satisfaction, if necessary, and on individual measures.
73229/01 Reigado Ramos, judgment of 22/11/2005, final on 22/02/2006
The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8). After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have visitation rights. A year later, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant. The European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which is still valid, had been automatic and stereotyped and that they had failed to take practical and concrete steps to resolve the issue.
Individual measures: At the 987th meeting (February 2007), the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child have been identified. According to information recently submitted by the Portuguese authorities, the representative of the applicant and the agent of the Portuguese government to the Court have agreed that the agreement regarding the applicant’s visiting rights should be modified in the light of the interests of the child. To discuss this, and other issues, a meeting was held before a judge on 20/06/2007 at which both the applicant and the child’s mother, as well as their respective representatives, were present.
At this meeting it was agreed between the parties that, before a new regime on visiting rights could be determined, the child in question, as well as both the parents, will undergo psychological examination. The judge moreover ordered that the subject of these examinations was to be determined within 10 days. Finally, the judge ordered that a request be sent to the Forensic Institute, emphasising the urgency of the matter, so that an appropriate institute for conducting these examinations would be designated.
• Information is awaited on the follow-up to this meeting.
General measures (No examination envisaged at this meeting): A copy of the judgment has been sent to all national authorities concerned, including to the Instituto de Reinserção Social (the organisation which advises courts on matters related to parental rights). The judgment has also been translated and published on the internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Instituto de Reinserção Social were requested to adopt appropriate measures in order to prevent new, similar violations in the future.
• Information is awaited on the measures taken or envisaged by the Supreme Council of Magistrates and the Instituto de Reinserção Social and in particular on whether there is in Portugal an adequate legal arsenal capable of ensuring the respect of its positive obligations under Article 8. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. investigative measures, psychological and social assistance, sanctions, etc.) and their capability to ensure the legitimate rights of interested persons as well as respect for judicial decisions (see §56 of the judgment).
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual measures, in particular on the follow-up given to the recent meeting between the applicant and the child’s mother, and on general measures.
- 9 cases against Romania
37284/02 Lafargue, judgment of 13/07/2006, final on 13/10/200616
The case concerns a violation of the applicant’s right to respect for his family life due to the failure by the Romanian authorities in their obligation to take adequate and sufficient efforts to ensure respect for the applicant's right of access to and residence with his son, born in 1995, over a period of approximately six years (violation of Article 8).
After the applicant’s divorce in 1997, the custody of the child was awarded to his ex-wife. On 16/12/1999 an access and residence order was made (final on 3/05/2000) authorising the applicant to spend one week with his son during the winter holidays and two weeks during his annual holidays. The applicant applied to the court bailiff service of the Bucharest Court of First Instance to obtain enforcement of this decision. However, his attempts remained ineffectual mainly due to the conduct of the mother, who failed to appear or came alone when summoned to attend with the child, or refused her former husband, accompanied by a court bailiff, entry to her flat.
Following a request by the French authorities under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Romanian Ministry of Justice brought an action demanding that a detailed access programme be drawn up for the applicant. In 2005, the Bucharest Court of First Instance drew up a provisional access programme granting the applicant access on alternate weekends, from 4 p.m. on Friday to 5 p.m. on Sunday. Even so, the applicant was only able to meet his child for five months at the beginning of 2005 and after notice of the application had been given to the government. Moreover, the Romanian authorities only imposed a small fine on the ex-wife.
Individual measures: The authorities did not pursue the programme of meetings between the applicant and with his child after first five months of 2005, even though psychologists' reports attested to the effectiveness of such meetings.
• Information provided by the Romanian authorities: The Ministry of Justice has taken judicial steps to ensure that the applicant’s child received psychological preparation for the renewal of contacts with the father. According to information provided on 4/06/2007, once the decision of the competent court is drawn up, the authorities will take steps to begin the psychological consultation of the child. After three months of psychological support the specialists will be able to provide an evaluation of the child’s attitude.
In addition, the applicant spent a week with his son during the winter holidays.
• Further information is awaited on the current situation of the applicant, in particular on progress in enforcing the decision of 1999, the state of proceedings under the 1980 Hague Convention and on other measures taken or envisaged in order to ensure respect of the applicant's access and residence rights.
General measures (No examination envisaged):
1) General legislative provisions regulating the exercise of the right of access
• Information is awaited on any appropriate general legislative provisions capable of ensuring the respect of the state’s positive obligations under Article 8 with respect to access rights. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. enforcement measures, including sanctions, psychological and social assistance, etc.) and their capacity to ensure implementation of the legitimate rights of interested persons and respect for judicial decisions. Furthermore, information would be useful on any measures envisaged by the Romanian authorities in this respect.
2) Specific legislative provisions concerning the implementation of the 1980 Hague Convention with respect of the right of access
a) On 15/09/2004 Romania adopted Law No. 369/2004 on the implementation of the 1980 Convention on the Civil Aspects of International Child Abduction (entered into force on 29/12/2004). Specific provisions of this Law relate to the right of access:
- Enforcement measures
Law 369/2004 provides that the Romanian Central Authority (Ministry of Justice) shall attempt to bring about a friendly resolution concerning the exercise of the right of access. If this attempt fails, and at the explicit request of the person endowed with such right, the Central Authority shall take the necessary measures to ensure the compulsory enforcement of this right. The Law provides an initial, civil fine (approximately 125 to 625 euros) and, if the perpetrator does still not comply, the general rules governing the enforcement of court decisions are applicable. In addition, the court may order a defendant to pay a civil fine of approximately 12 to 25 euros for each day of delay.
- Preparation of the child for the contact with its parent
Law 369/2004 explicitly provides the possibility of psychological therapy for the child for a maximum of three months where access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent (Article 18).
b) On 5/04/2005 the Ministry of Justice, on the basis of Article 24 of Law 369/2004, adopted Order No. 509/C to approve the Regulation on the modalities of exercising the duties of the Ministry of Justice as a Central Authority designated through Law No. 100/1992 on Romania's accession to the 1980 Hague Convention.
• The Romanian authorities are invited to provide relevant examples of the application of Law 369/2004 and Order No. 509/C showing the positive changes in practice of domestic authorities since the relevant facts in this case.
3) Publication and dissemination of the European Court's judgment to relevant authorities: information is awaited in this respect.
1. noted with satisfaction the measures taken by the Romanian authorities, in particular, setting-up of psychological support for the child and the decision of the Bucharest Court of 22 June 2006, final in May 2007, granting the applicant visitation rights;
2. invited the authorities of the respondent state to provide the Committee with additional information on the effective exercise of the visiting rights by the applicant;
3. decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided concerning general measures as well as on the payment of the just satisfaction, if necessary;
4. decided to resume consideration of this item at the latest at their 1028th meeting (3 5 June 2008) (DH), in the light of further information to be provided concerning individual measures.
- Cases concerning the annulment of final court decisions relating to property ownership17
31678/96 Gheorghiu T. and D.I., judgment of 17/12/02, final on 21/05/0318
21118/02 Konnerth, judgment of 12/10/2006, final on 12/01/200719
6248/03 Popea, judgment of 05/10/2006, final on 05/01/200720
28104/03 Raicu, judgment of 19/10/2006, final on 19/01/200721
13028/03 Simion, judgment of 14/12/2006, final on 14/03/200722
25632/02 Stere and others, judgment of 23/02/2006, final on 23/05/2006
21351/03 Stîngaciu and Tudor, judgment of 03/08/2006, final on 03/11/200623
40670/98 Todorescu, judgment of 30/09/03, final on 30/12/0324
- 2 cases against the Russian Federation
4353/03 Tarariyeva, judgment of 14/12/2006, final on 14/03/200725
The case concerns the authorities’ failure to protect the life of the applicant’s son who died in the Khadyzhensk colony due to the lack of adequate medical follow up of his disease and post-operative care and defective medical assistance administered to him at the public hospital (violation of Article 2).
The European Court further found that the investigation into the death of the applicant’s son was slow and its scope too restricted, leaving out many crucial aspects of the events. The applicant’s right to effective participation in the investigation was not secured. Finally, after the acquittal of the suspect due to the poorly prepared evidentiary basis, the applicant was deprived of an accessible and effective civil-law remedy, either because a civil claim was barred by operation of law or because it had no chances of success in the light of the existing judicial practice (procedural violation of Article 2).
The case further concerns inhuman treatment inflicted on the applicant’s son as a result of his handcuffing at the civilian hospital and the conditions of his transport in a prison van, which contributed to his suffering (violation of Article 3).
Individual measures: It results from the judgment that only the head of the surgery department of the public hospital was referred to a trial court in this case. For unspecified reasons the report of medical experts of 19/06/2003 which concluded to the defendant’s guilt was rejected by the trial court and the defendant was consequently acquitted. The criminal proceedings against other doctors of the prison hospital and of the public hospital were discontinued by prosecutors on the ground that an alleged offence had not been committed.
• Information provided by the applicant: The applicant informed the Secretariat of the delay in payment of the just satisfaction awarded by the European Court, depriving her of the possibility to hire a lawyer so as to continue the criminal and other proceedings with a view to establishing the guilt of those responsible for her son’s death. These observations were transmitted to the Russian authorities for comment.
She also stated that she had lodged several applications with a number of competent authorities, in particular with a Prosecutor General of the Russian Federation, but without success.
She indicated that on 25/05/2007 the Civil Chamber of the Supreme Court of the Adyugeya Republic quashed the first-instance court’s approval of the prosecutor’ refusal to open criminal proceedings in respect of physicians of LPU-5 and referred the case back to the first-instance court for a new examination. It would however appear that these proceedings were already pending when the European Court delivered its judgment. Thus the Russian authorities are invited to ensure that the findings of the European Court are taken into account by the first-instance court in the framework of its new examination of the case.
• Information is therefore awaited on the outcome of the proceedings pending before the Teuchegskiy district court and any other measure envisaged or being taken to remedy the shortcomings in the investigations identified by the European Court with a view of establishing the responsibilities of all persons involved, notably under other possible counts of indictment.
Information is also awaited on any possible disciplinary inquiry in respect of all persons involved in the events and sanctions imposed.
Finally, information is expected on the measures taken or envisaged in order to provide redress to the applicant for the consequences of the violations found.
General measures (No examination envisaged):
1) Violation of Article 2 in relation to the lack of requisite medical care: see the Popov case (Section 4.1)
2) Procedural violation of Article 2 in relation to the civil claim for compensation: see the Khashyev and other cases (Section 4.3; CM/Inf/DH(2006)32 revised).
3) Violation of Article 3 in relation to handcuffing of the applicant’s son at the civilian hospital
• Information is awaited on whether there are specific rules, instructions or regulations governing the situation of convicted persons at civil hospitals.
4) Violation of Article 3 in relation to transport of the applicant’s son: see the Khudoyorov case (Section 4.2, 1007th meeting).
• Information is also awaited on publication of the European Court's judgment in general and specialised law journals and dissemination of the judgment, together with appropriate instructions to be issued by the Federal Service for execution of sentences and by the Ministry of health, to all authorities concerned.
1. took note of the information provided by the Russian authorities concerning the individual and general measures;
2. decided to resume consideration of this item at their 1013th (3-5 December 2007) (DH), in the light of the assessment to be made by the Secretariat of the information provided by the authorities.
26853/04 Popov, judgment of 13/07/2006, final on 11/12/2006
The case concerns the domestic courts’ refusal to examine defence witnesses in the proceedings which resulted in the applicant’s conviction and sentencing to ten years’ imprisonment. The European Court found that such refusal constituted a limitation of defence rights incompatible with the guarantees of a fair trial since his conviction was based on conflicting evidence (violation of Article 6§3 (d) in conjunction with Article 6§1).
The case also concerns the poor conditions of the applicant's detention on remand in pre-trial detention facility SIZO 77/1 in Moscow between 2002 and 2004.
The European Court further considered that the applicant's detention in overpopulated cells (0.9 to 2.34 m² per inmate), combined with the length of the detention in such conditions, amounted to inhuman and degrading treatment. This situation was exacerbated by the lack of medical assistance required by the risk of a relapse of the applicant’s cancer (violation of Article 3).
The European Court also found that the conditions of detention in the disciplinary cells of the YaCh-91/5 prison in Sarapul, combined with the time he spent therein, his physical condition and the lack of adequate medical care, amounted to inhuman and degrading treatment. Moreover, despite the need for regular medical examination indicated in the applicant’s medical file, the prison authorities failed to carry out such examination for 1½ years, i.e. until the European Court ordered them to do so (violation of Article 3).
Finally, the European Court found that the interrogation of the applicant by the prison administration in relation to the allegations he made before the European Court constituted undue interference with his right of individual petition in the absence of any transcripts of the meetings between the applicants and the state officials and outside of any investigation into his allegations (violation of Article 34).
1) Re-opening of proceedings: Given the procedural violation found, the European Court considered that the most appropriate form of redress would be the reopening of proceedings. This possibility is provided by Article 413 of the Code of Criminal Procedure (§ 263 of the judgment).
The applicant’s representative has lodged numerous submissions requesting the reopening and subsequent annulment of the applicant’s conviction. They were transmitted for comments to the Russian authorities.
• Proceedings initiated by the applicant’s lawyer: He stated that on 22/01/2007 he lodged a supervisory-review application in respect of the applicant’s conviction before the Supreme Court of the Russian Federation (Article 408 §1 2) of the Russian Code of Criminal Procedure). He requested the annulment of his client’s conviction on the ground that the charges against him were trumped up by the police with a view to concealing the identity of those who actually committed the offence.
• Information is awaited on the outcome of the application made by the applicant’s lawyer.
• Proceedings re-opened at the authorities’ request: In the meantime, on 29/08/2007, the Supreme Court, at the request of its President, granted reopening of proceedings in the applicant’s case on the basis of newly discovered circumstances, i.e. the judgment of the European Court (Article 413 of the Russian Code of Criminal Procedure) and referred the case back to the first-instance court.
However the applicant’s representative expressed doubts as to the effectiveness or advisability of this fresh examination of the case by the first-instance court, considering that it would be useless and cause further suffering to his client.
• Information is thus awaited on the progress of the new proceedings in the applicant’s case and on the scope of this re-examination.
• Information is particularly awaited as to whether the applicant should remain in custody pending the new trial.
2) The applicant’s access to the requisite medical assistance: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained as a result of the poor conditions of his detention both in remand centres and in prison disciplinary cells. However, it remains unclear whether measures have been taken to ensure the applicant the requisite medical assistance. In his numerous submissions, the applicant’s lawyer has repeatedly pointed out the seriousness of the applicant’s state of health and the urgency of the situation.
• Information is awaited in this respect.
General measures (No examination envisaged)
1) Refusal to examine witnesses for the defence
• Information is awaited on dissemination of the European Court’s judgment to all courts, together with an explanatory note from the Supreme Court of the Russian Federation drawing their attention to the Convention’s requirements regarding fair trial.
2) Violation of Article 3 in relation to the applicant’s detention on remand
- Poor conditions of detention on remand: The case presents similarities to that of Kalashnikov (1007th meeting, October 2007, Section 4.2, Interim Resolution ResDH(2002)123).
- Lack of requisite medical care: It results from the judgment that the applicant, who was seriously ill, did not receive the medical care he needed from the medical unit of the pre-trial detention centre (§§ 211-212 of the judgment). The general standards in this area are reflected in the Committee of Ministers’ Recommendation Rec(2006)13 on detention on remand, including the conditions of its use and the establishment of guarantees against abuse – in particular § 37 concerning continuing medical treatment.
• Information is awaited on the measures taken or envisaged in order to ensure to persons in the applicant’s situation the requisite medical assistance, in particular on the possibility for detainees to make outside tests and consult outside specialists and the arrangements taken in this respect.
3) Violation of Article 3 in relation to the applicant’s imprisonment
Poor conditions of detention in prison punishment cells
• An action plan is awaited with a view to improving the conditions of detention in punishment cells, especially for persons with particular ailments.
Lack of adequate medical care in prison: The question of lack of requisite medical care in prisons has to be addressed by the authorities to prevent new, similar violations. In this respect, the authorities’ attention is drawn in particular to Committee of Ministers’ Recommendation Rec(2006)2 on the European Prison Rules, especially part III concerning health.
• Information is awaited on the measures taken with a view to improving the medical care in prison for persons whose physical condition requires special supervision and follow up.
4) Interference with the right of individual petition: The case presents similarities to that of Poleshuk in which a number of important measures (instructions, circular letters, etc…) have been taken to prevent similar violations on account of detention centres. The authorities are invited to adopt the similar measures in respect of the prisons.
• Information is awaited in this respect as well as on publication of the European Court’s judgment in general and specialised law journals and dissemination of the judgment, together with appropriate instructions to be issued by the Federal Service for execution of sentences and possibly by the General Prosecutor’s office, to all authorities concerned.
1. welcomed the decision of the Russian Supreme Court of 29 August 2007 to quash the previous judicial judgment which sentenced the applicant and to re-open proceedings in this case, following the judgment of the European Court ;
2. encouraged the Russian authorities to bring the new proceedings to a close in line with the Convention requirements;
3. nonetheless invited the authorities to clarify the basis upon which the applicant was held in detention on remand between the abovementioned decision of the Supreme Court of 29 August 2007 and the decision of Preobragensky District Court of 11 September 2007 ruling on his detention in remand, as well as the reasons for this detention;
4. took note of the information provided by the authorities on other individual measures required by the judgment, in partcular as to whether the applicant may have access to regular medical examinations, as well as on general measures;
5. decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH).in the light of possible further information on individual and general measures.
- 2 cases against Switzerland
7548/04 Bianchi, judgment of 22/06/2006, final on 22/09/2006
The case concerns a violation of the applicant's right to family life due to the inadequacy of measures taken by the Swiss authorities in implementation of an order for the return of his son under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
i) the circumstances
The applicant, an Italian national, married E.H. in Italy on 26/06/1998. They decided to live in Italy and a son was born to them on 28/11/1999. They separated in June 2002 and the mother left for Switzerland with the child without authorisation. Divorce proceedings were initiated in Italy on 25/07/2002. In February 2003, the Civil Court in Pistoia (Italy) awarded custody of the child to the applicant, who offered to share custody with the mother and also offered mediation, which the mother refused. In view of what had happened in June 2002, the applicant turned to the Swiss authorities in September 2002 to have his child returned, relying on the 1980 Hague Convention. Following a decision by the Swiss Federal Court of April 2003, ordering that the child be returned to Italy by 15 May at the latest, the mother and returned to Italy with her child. In December 2003 the applicant handed the child over to the mother for a scheduled access visit, and she once more abducted the child to Switzerland. The applicant again applied to the Swiss authorities under the Hague Convention, asking that his child be returned to Italy. On 7/01/2004, the Willisau District Court ordered the child to be kept in Switzerland until a final decision on his return had been taken and without granting the applicant visiting rights.
The two sets of criminal proceedings were then stayed pending the outcome of the proceedings for return of the child. In April 2004, the Willisau District Court granted the applicant visiting rights of four hours a week, to take place at a neutral venue and in the presence of a representative of the supervisory authority or a police officer and a municipal welfare officer. A report by the supervisory authority states that the nine meetings between the applicant and his child between April and July 2004 had proceeded satisfactorily and that the applicant had complied with all the conditions laid down by the District Court. In July 2004 the Canton of Lucerne Higher Court, ruling on an appeal lodged by the applicant against the decision of the Willisau court rejecting his application to have the child returned to Italy, ordered that the child be returned by 31 July 2004 at the latest, if necessary with the help of the police. This decision was confirmed in October 2004 by the Swiss Federal Court.
On 10/08/2004, the Willisau prefecture instructed the cantonal police to establish the circumstances of the abduction and question the mother. A few days later, the mother contacted the police officer in charge of the case and said that she would come in for questioning provided that she was not retained in custody. She turned up alone and refused to divulge the whereabouts of the child, saying that she could be contacted at any time through her lawyer. After questioning her, the police office released her.
Since September 2004, the Swiss authorities have made numerous attempts to trace the child and the mother.
ii) The Court’s assessment
The European Court, after pointing out that the removal or retention of a child is considered unlawful under Article 3 of The Hague Convention, expressed doubts as to whether the decision by the Willisau District Court ordering the child to be kept in Switzerland pending the outcome of the proceedings on his possible return to Italy had been correct, given that it had to some extent endorsed the situation created by the illegal action by the child’s mother.
The Court also entertained doubts as to whether the decision of the District Court to conduct a fresh investigation of the case had been appropriate, given that it had already examined the case and that it had been determined by the Swiss Federal Court only a few months earlier and that no mention had been made of any fundamental change in the circumstances. The Court also said that it was not convinced that that the attitude of the said court was compatible with the object and the purpose of the Hague Convention, which was to ensure the “immediate return” of children (§ 92). Nor was it convinced that the lapse of time between the lodging of the application for the return of the child and the court’s ruling (almost four months) was compatible with the Hague Convention, which required the judicial and administrative authorities to act “expeditiously” in proceedings for the return of children. Moreover, for the entire duration of the proceedings pending before it, the Willisau court did not offer the applicant favourable terms of access of a kind which might have enabled him to maintain his ties with his child (§§ 93-94-96). As regards the police, the Court found it surprising that the officers in charge had allowed the mother to leave after questioning without handing over the child, despite the fact that she had already abducted him (§ 98). While noting the various attempts made by the Swiss authorities as from September 2004 to trace the child and the mother, the Court nevertheless considered that their attitude, during the period between the child’s abduction in December 2003 and their last contact with his mother on 15 August 2004 had, on the whole, been somewhat lax and as such incompatible with the object and purpose of the Hague Convention and with its wording, which was particularly clear and rigorous. This passive attitude had caused a complete break-off in contact between father and son, which was liable to result in growing alienation between them and this could not be said to be in the child’s best interests. Accordingly, the Court could not consider that the applicant’s right to respect for his family life had been protected in an effective manner.
• The child’s current situation: the child has still not been found, since 15 August 2004.
• Action taken by the Swiss authorities: The following action has been taken, without producing any concrete results:
• by the courts: 1) in September 2004, the Willisau District Court issued an international arrest warrant against the mother on the grounds of child abduction; 2) In January 2006, the mother applied to the Willisau Civil Court for divorce and custody of the child. She justified her failure to appear in person by sending in a doctor’s certificate issued in the Dominican Republic, with photos showing that she was expecting another child. In June 2007, the Court dismissed her application, holding that the reasons she had given for not appearing in person were unjustified.
• by the police and the administrative authorities:
1) in June 2005, a “wanted” notice was sent out for the mother and the child, with the promise of a substantial reward;
2) Pictures and a description of mother and child have been placed on the Internet and in the “wanted” section of several Swiss and German police websites (www.kapo.lu.ch, www.polizei.bayern.de);
3) Various other enquiries are being made and have been intensified over the past few months .
• Information is awaited on the outcome of the action taken
• Measures taken in Italy:
1) In March 2005, the Pistoia District Court issued an international arrest warrant against the mother on the grounds of child abduction; 2) In June 2006 Pistoia Civil Court delivered its judgment, confirming the separation of the married couple and awarding effective custody of the child to the applicant and weekly visiting rights to the mother; 3) The Pistoia public prosecutor’s department has asked the Swiss authorities for judicial and police assistance in finding the mother and the child.
• Mediation proposal:
1) In a letter to the head of the Lucerne criminal investigation department, dated 2/02/2007, one of the mother’s lawyers offered mediation, a meeting with a mediator and representatives of the two parties. The federal authorities are awaiting a reply from the responsible police authorities in Lucerne.
2) In September 2007 the applicant informed the Secretariat that he had made an offer of family mediation through the General Consulate of Italy on 28/07/2007. This proposal has been forwarded to the Swiss Embassy in Italy and the Federal Department of Justice for information. It proposes that the child should be entrusted to a regional supervisory authority in Ticino and that the mother should continue to live with the child; the criminal proceedings would be stayed during the period of mediation.
• Information is awaited on the response to the offer of mediation.
General measures (No examination envisaged at this meeting): The judgment of the European Court was sent out to the authorities directly concerned and brought to the attention of the Cantons via a circular. It was also published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 70.115, available via http://www.vpb.admin.ch/deutsch/doc/70/70.1115.html and it will be mentioned in the yearly report of the Federal Council on the activities of Switzerland in the Council of Europe in 2006.
According to information that has been received, a new law has been drafted proposing new measures to deal with cases of international abduction in Switzerland, particularly with a view to accelerating proceedings in cases of child abduction. This information is currently being assessed.
The Deputies decided to resume consideration of this item at their 1020th meeting (4-6 March 2008) (DH), in the light of a draft interim resolution to be prepared by the Secretariat and which should take stock of the actions undertaken by the Swiss authorities on individual measures and on further steps with a view to finding the child.
41773/98 Scavuzzo-Hager and others, judgment of 07/02/2006, final on 07/05/200626
- 4 cases against “the former Yugoslav Republic of Macedonia”
- Cases of length of proceedings concerning civil rights and obligations before labour or civil courts (and lack of an effective domestic remedy)
Duration of the proceedings
State of the proceedings at the date of the judgment of the European Court
Janeva, judgment of 03/10/2002 - Friendly settlement27
Since December 1991
Štip Labour Court; Supreme Court
Pending at the time of friendly settlement
Atanasovic and others, judgment of 22/12/05, final on 12/04/06
Since March 1991
Kumanovo Municipal Court
MZT Learnica A.D., judgment of 30/11/06, final on 28/02/ 0728
Skopje District Commercial Court, Skopje Court of First Instance, Skopje Court of Appeal
Milošević, judgment of 20/04/06, final on 20/07/06
Since May 1993
Skopje First Instance Court and Court of Appeal; Supreme Court
These cases concern the excessive length of proceedings concerning civil rights and obligations before labour or civil courts (violations of Article 6§1). The case of Atanasovic and others also concerns the lack of an effective domestic remedy in respect of this violation (violation of Article 13).
• Information has been awaited since April 2007 on urgent measures required to accelerate the pending proceedings.
• Information provided by the authorities of the respondent state (21/12/2006): The following general measures have been implemented with reference to the violations found:
1) Violation of Article 6§1:
New Law on Civil Proceedings: This law was adopted in September 2005 (Official Gazette No. 79/2005) with the primary purpose of increasing the efficiency and reducing the duration of civil proceedings. The major changes introduced are the following:
- Redefinition of the principle of “the search for material truth”: courts now limit themselves to matters raised and evidence adduced by the parties;
- New provisions concerning delivery of receipts, so as to accelerate procedures and reduce the scope for manipulation by parties;
- Changes to enhance the efficiency of civil proceedings regarding legal representation, time-limits for admission of evidence at various stages in proceedings and appeal procedures;
- Appeal Courts may no longer repeatedly refer cases back to the first instance: instead, they must themselves determine any case which comes before them a second time. Article 400 of the Law on Civil Procedures provides the possibility of prompt reopening of cases following a judgment of the European Court finding a violation related to the fairness of proceedings.
• New Law on Enforcement also adopted in 2005 (Official Gazette No. 35/2005, 50/2005) which provides, among other things, that:
- Final court decisions immediately become enforcement orders which the beneficiaries may submit, outside the judicial system, for enforcement by private enforcement agents, who are obliged to carry out the decision of the court without delay.
- Legal challenges by debtors against civil court decisions cannot delay enforcement;
- Courts are no longer responsible for the enforcement of their decisions;
- Enforceable, final court decisions and notarised enforcement orders of which the time limit for voluntary enforcement has expired become enforcement documents which can be executed by private enforcement agents as above;
- The law also set up the system of private enforcement agents, who are not paid by the courts. They are designated to court districts by the Minister of Justice and enforce the orders of the court or the body having jurisdiction for the district for which they are appointed. Enforcement agents may not hold public office or exercise managerial or supervisory functions in commercial companies, state institutions, collection services. Nor may they engage in business activities, act as notaries or attorneys nor serve in religious communities or groups.
Enforcement agents must open special accounts used solely to receive amounts realised in enforcement operations and remit them to the beneficiaries. Payments to beneficiaries must be made immediately: i.e. no later than the next working day following enforcement.
2) Violation of Article 13:
New Law on Courts: This was adopted in 2006 and provides a domestic legal remedy and a procedure whereby applicants may request protection of their right to a hearing within a reasonable time before domestic courts before lodging applications with the European Court. The major changes introduced by the Law on Courts are that:
- The Supreme Court is competent to decide, on request of the parties or other participants in the proceedings, whether there has been a violation of the right to hearing within reasonable time.
- Parties considering that their human rights have been violated in this respect may file a request for protection of that right with the immediate higher-instance court. The court thus seised must process the request no later than six months following the lodging of the request and decide whether the lower court has violated the right to a hearing within reasonable time. If a violation is found, it awards just satisfaction, charged to the Court Budget.
• Information awaited: copies of the laws mentioned above.
3) Translation, publication and dissemination of the European Court’s judgments: the judgments in Janeva, Atanasovic, and Milošević have been translated and published on the internet site of the Ministry of Justice and sent out to the relevant courts.
The Janeva judgment was also circulated on 18/02/2003 to the Ministry of Foreign Affairs, the Constitutional Court, the Supreme Court, the Public Prosecutor’s Office.
Courts’ attention has been drawn to the need to accelerate the proceedings in the Milošević case.
The Deputies decided to resume consideration of these items:
1. at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on the payment of the just satisfaction, if necessary,
2. at their 1020th meeting (4-6 March 2008) (DH), in the light of further information to be provided on individual measures, namely the acceleration of proceedings in these cases.
- 189 cases against Turkey
68263/01 Şahin and others, judgment of 21/12/2006, final on 21/03/2007; rectified on 03/07/2007 and 06/09/2007
The case concerns excessive use of force by the police (violation of Article 3) and the ineffectiveness of investigation into the applicants' complaints against police officers (violation of Article 13). In 1998, an allegedly illegal demonstration took place in Istanbul. When the security forces intervened to break it up, clashes occurred in which demonstrators attacked police officers with batons and stones, resulting in the arrest of 261 people (including the applicants) and the injury of 36 police officers.
The applicants complained to the prosecutor's office that they had sustained injuries due to excessive use of force by the police. Upon examination, the prosecutor's office decided to discontinue the investigation, ruling that the intervention was legitimate and that the applicants' injuries (various bruising) did not disclose disproportionate use of force. The applicants' appeal to an assize court was rejected on the same grounds.
The European Court found that there was domestic legal framework on dispersing demonstrations, laying down acceptable limits to the force that could be used. However, in this case, this framework had proved ineffective as the prosecutor was convinced that the police intervention was necessary and proportionate to the aim pursued.
• Information is awaited on any individual measure taken or envisaged by the authorities.
• Information provided by the Turkish authorities (11/09/2007) regarding amendments to the legislation applicable in this context: Law No. 2911 governing public meetings and demonstrations now contains a detailed description of what constitutes “illegal” public meetings or demonstrations. Among other things, these provisions include the carrying of firearms, explosives, batons or sharp or penetrative tools; the brandishing of posters, placards and signs associated with illegal organisations or groups; the holding of a public meeting or demonstration other than on the date and time or place notified. Should a public meeting or demonstration begin as legal but become illegal (as in the cases listed above), Article 23 of the law now requires the police officer in charge to seek authorisation from the governor before taking action to disperse the gathering. In the case of resistance or aggression by demonstrators against the police or aggression against third parties, the police may intervene using force without further warning.
If there are persons among the demonstrators who are carrying guns or other dangerous objects, they will be removed from the group, after which the public meeting or demonstration could continue. The police who intervene must try to strike a balance between individual rights to participate in a public meeting or demonstration, and the prevention of abuses of those rights.
Under Article 25 of the Regulation on police intervention by use of force, in order to disperse an illegal public meeting or demonstration the police must first warn the group, using loud-speakers, that they must disperse peacefully and that otherwise force shall be used. The same article provides that the use of force must observe the principle of proportionality. Hence minimum force should be used, which then could be increased incrementally, if necessary. Article 4 of the same regulation contains a parallel provision of proportionality when describing “use of force”.
The Turkish authorities also confirmed that the judgment of the Court has been translated and sent out to judicial authorities, as well as the Ministry of the Interior. The Turkish translation of the judgment is also available on the website of the Ministry of Justice at
The Deputies decided to resume consideration of this item at their 1020th meeting (4-6 March 2008) (DH), in the light of information to be provided on individual measures.
74306/01 Öktem, judgment of 19/10/2006, final on 26/03/200729
43124/98 Türkmen, judgment of 19/12/2006, final on 19/03/2007
The case concerns the torture inflicted on the applicants while in police custody (violation of Article 3) as well as the impunity enjoyed by police officers during the conduct of the proceedings against them in 1994. The charges against the police officers were dropped by a decision of the Court of Cassation in 2000 on the ground that the prescription period of 5 years had expired in 1999 (violation of Article 3).
The European Court stated that it is inconceivable that a civil servant accused of a serious offence such as torture, should continue exercising his duties during investigations or proceedings against him or – worse still – when he has been found guilty. Nor is it acceptable that the conduct and the outcome of such proceedings, including the execution of the sentence, are hampered by exceptional measures such as an amnesty. It is equally unacceptable to bring proceedings to an end because of the application of prescription periods, a situation which is incompatible with the obligation of promptness and diligence in the conduct of proceedings in such cases with. In the applicants’ case the Court considered that the proceedings against the police officers could not be regarded as having been conducted with reasonable expedition; neither had the Turkish authorities taken the positive steps required by the seriousness of the circumstances to ensure that the proceedings were brought to a successful conclusion before the prosecution became time-barred (violation of Article 3).
Lastly, the case concerns the lack of independence and impartiality of the state security court which tried and convicted the applicants (violation Article 6§1).
1) Violation of Article 6§1: This case presents similarities to the Gençel group (see Section 4.1). The European Court has reiterated its view that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings because of the inapplicability of domestic law to their case. However, both applicants were released from prison in 2002 and 2003 on presidential pardons and they currently live in Germany where they were granted political asylum. In July 2006 their case was reopened in accordance with the provisions of the new Criminal Code. In February 2007, an assize court in Istanbul readjusted the applicants’ previous prison sentences to the new code, and thereby reduced their sentences to 6 years and 3 months’ imprisonment.
• Assessment: While these developments are welcome, it is understood that the assize court proceedings were limited to the recalculation of applicable imprisonment periods under the new criminal code, rather than a retrial on the merits.
• Information is therefore expected on the measures envisaged to ensure them proper redress.
2) Violation of Article 3:
• Information is expected on measures envisaged, including the possibilities of initiating disciplinary measures against the police officers found by the European Court to have tortured the applicants.
General measures: See the Batı group (997th meeting, June 2007, section 4.2) for the measures taken concerning the statutory limitations introduced with the entry into force of the new Criminal Code. For other measures see the cases concerning the actions of security forces in Section 4.3 at this meeting.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided on individual measures.
15259/02 Ertürk Hasan, judgment of 12/04/2005, final on 12/07/2005
36150/02 Kaya Mehmet, judgment of 06/12/2005, final on 06/03/2006
These cases both concern the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (since abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violations of Article 6§1).
In the Ertürk Hasan case, proceedings began in November 1983 and are still pending before the Court of Cassation (at the time the European Court issued its judgment, the proceedings had been pending more than 21 years of which 18 fall under the European Court's jurisdiction). In the Mehmet Kaya case, proceedings began in September 1980 and were still pending before the Ankara Assize Court at the time the European Court gave its judgment (more than 25 years of which 18 fall under the Court's jurisdiction).
The applicants were released pending trial respectively in December 1988 and in April 1991.
1) Case of Ertürk Hasan:
• Information provided by the Turkish authorities (03/04/2006): the final decision of the Ankara Assize Court of 16/07/2002 had been quashed by the Court of Cassation on 28/05/2004. Subsequently, the case-file was transferred to the Ankara Assize Court which held its most recent hearing on 28/03/2006. On 10/10/2006 the Turkish authorities stated that the Ankara Assize Court rendered its decision on 03/10/2006 and convicted the applicant. However the court, taking into account the time he has already spent in prison, imposed no sentence on the applicant. This decision is subject to appeal.
• Information is awaited on the termination of the appeal proceedings if there are any
2) Case of Kaya Mehmet
• information is urgently awaited on the outcome of the proceedings.
General measures: These two cases present similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Şahiner and others against Turkey, which was closed by Resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.
The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual measures, in particular on the outcome of the pending proceedings against each of the applicants.
35811/97 Kolu Mustafa, judgment of 02/08/2005, final on 02/11/2005
46213/99 Örs and others, judgment of 20/06/2006, final on 20/09/2006
The cases concern the unfairness of criminal proceedings brought against the applicants.
In the case of Kolu Mustafa, the applicant was sentenced to 33 years and four months' imprisonment on the basis of the confessions he made, which he claimed were obtained under torture, in the absence of a lawyer, while in police custody in solitary confinement. The European Court found that the applicant had made several self-incriminating statements while in police custody and that there was nothing to suggest that he had given those statements in the presence of a lawyer or after having been informed of his right to be assisted by a lawyer. Neither had it been shown that the police officers had informed the applicant of his right to remain silent. Furthermore, during the trial stage the applicant was denied not only the possibility of challenging the allegations made by his accusers but also an opportunity to challenge the use of confessions obtained in the absence of a lawyer in solitary confinement (violation of Article 6§§1, 3c and d).
In the case of Örs and others, the European Court found that they had been convicted (to different terms of imprisonment between six years and three months) on the basis of the statements which appear to have been obtained under duress, and in any case without the assistance of a lawyer and in breach of their right not to incriminate themselves, while the applicants' complaint for ill-treatment was pending before the domestic courts (violation of Article 6§§1 and 3(c))..
The case of Örs and others also concerns the excessive length of the applicants' detention in police custody before being brought to a judge (10 and 11 days) (violation of Article 5§3).
1) Kolu Mustafa: The applicant was released in December 2000 in application of Amnesty Law No. 4616 of 22/12/2000. However, the Turkish authorities informed the Secretariat that the applicant's conviction was still valid (although his sentence had been decreased by half) and still appeared on his criminal record.
• Information is therefore awaited on the erasure of all the consequences of the violation found by the Court either through reopening of proceedings or erasure of the applicant's criminal records.
2) Örs and others: The applicants must have served their prison sentences taking into account the time elapsed since their convictions.
• Information is nevertheless awaited on the erasure of all the consequences of the violation found by the Court for the applicants.
• Measures adopted: Several measures have been taken with the entry into force of the new Code of Criminal Procedure (CCP) on 01/06/2005 and with the amendments introduced in the Rules on Apprehension, Police Custody and Interrogation in relation to the procedural safeguards in police custody (see, Appendix 1 to Interim Resolution ResDH(2005)43). These amendments, as far as relevant, can be summarised as follows:
1. All suspects or accused shall have the right to have access to a lawyer at every stage of the investigation. The right to have access to a lawyer, including during the interrogation, shall not be obstructed or limited (Article 149 of the CCP).
2. A lawyer shall be appointed if suspect or accused declares that he or she has no means to appoint one. In the investigation of crimes requiring at least five years' imprisonment, a lawyer shall automatically be appointed whether or not the suspect or the accused requests it (Article 150 of the CCP).
3. Apprehended persons shall be informed of their rights at the time they are taken into custody (Article 6 of the Regulations).
4. Lastly, no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the CCP).
The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual measures, namely the erasure of all the consequences of the violations.
Cases raising the issue of restitutio in integrum for the applicants:
reopening of the domestic proceedings not allowed by Turkish law:
39465/98 Parsıl, judgment of 26/04/2005, final on 26/07/2005
The case concerns the violation of the applicant’s right to a fair trial on account of the failure to disclose Principal Public Prosecutor's written opinion concerning the validity of the applicant's appeal on a point of law before the Court of Cassation in an embezzlement case (violation of Article 6§1).
In March 1996, the applicant was sentenced to 7 years and 9 months' imprisonment and a fine of 33 333 333 Turkish liras (390 euros) and was banned from exercising public office.
Individual measures: The applicant cannot obtain the reopening of the impugned proceedings under Law No. 4793 as this law does not apply to proceedings which were pending before the European Court at the date of its entry into force.
• Information is therefore awaited on the measures envisaged by the Turkish authorities in order to erase all the consequences of the violation for the applicant.
General measures: A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. Thereafter, this provision was included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which and entered into force on 01/06/2005 (see in this context, the Göç case in Section 6.2).
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided on individual measures, namely the erasure of all consequences of the violation found for the applicant.
- 172 cases concerning the independence and impartiality of state security courts
(See Appendix for the list of cases in the Gençel group)
These cases concern the 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 (violations of Article 6§1).
The Y.B and others case also concerns a violation of the principle of presumption of innocence (violation of Article 6§2).
Individual measures: The European Court considered that where an individual has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.
However, the provisions of the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in these cases, inasmuch as the Code only provides for the reopening of proceedings in respect of the Court’s judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003.
Consequently, the applicants’ appeals for reopening of proceedings in the cases of N.K (43818/98), Özertikoğlu İsmail (48438/99), Süvarioğulları (50119/99), Güven and others (in respect of Ramazan Akdağ) (40528/98), Yıldırım Süleyman (40518/98), Güneş Ismail (53968/00), Gençel (53431/99) and Kaymaz and others (57758/00) were rejected by domestic courts. In the case of Kaymaz and others, the applicants lodged a new application with the European Court alleging that the fact that they had been deprived of the possibility to have their cases reopened constituted violations of Articles 3, 5§1(a) and 6 (in conjunction with Article 14) of the Convention.
• Information expected: concerning the applicants’ situation and the measures envisaged ensuring proper redress to the applicants, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
General measures (No examination envisaged)
1) Violations of Article 6§1 (independence and impartiality): these cases present similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) 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. On 07/05/2004, the Parliament approved a constitutional amendment abolishing state security courts.
2) Violations of Article 6§2 (presumption of innocence): in the case of Y.B and others, publication and dissemination of the European Court’s judgment to the police force, in particular to the Anti-Terrorism Branch.
The Deputies decided to resume consideration of these cases at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on payment of the just satisfaction, if necessary, as well as on individual measures, namely the erasure of all consequences of the violation for the applicants.
- Cases concerning ill-treatment suffered by the applicants and the lack of independence and impartiality of state security courts
52941/99 Gültekin and others, judgment of 31/05/2005, final on 31/08/2005, rectified on 06/12/2005
27526/95 Günaydın Vedat and Şahin, judgment of 13/10/2005, final on 15/02/2006
48063/99 Aslan Orhan, judgment of 20/10/2005, final on 20/01/2006
42579/98 Demir Murat, judgment of 02/03/2006, final on 02/06/2006
43925/98 Karakaş and Yeşilırmak Yılmaz, judgment of 28/06/2005, final on 28/09/2005
39813/98 Önder Soner, judgment of 12/07/2005, final on 12/10/2005
40986/98 Soner and others, judgment of 27/04/2006, final on 27/07/2006
42594/98 Uçkan, judgment of 22/06/2006, final on 22/09/2006
These cases concern the ill-treatment of the applicants during police custody (violations of Article 3).
They also concern the 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 (violations of Article 6§1).
The applicants in two of the cases are still serving heavy prison sentences (life imprisonment in the case of Gültekin and others and 20 years in the Önder case).
Individual measures: As regards the violations of Article 6§1, these cases present similarities to the Gençel group (see above). The European Court has reiterated its view (except in the case of Karakaş and Yeşilırmak) that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings for the reasons explained above.
• Information expected: on the applicants' situation and the measures envisaged to ensure them proper redress, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
1) Violations of Article 3: these cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (Section 4.3, in this connection see Interim Resolution ResDH(2005)43 adopted at the 928th meeting (June 2005) which takes stock of the measures already taken and points out the outstanding issues to be resolved).
2) Violations of Article 6§1: these cases present similarities the Gençel group above-mentioned.
The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided concerning individual measures, namely the erasure of all consequences of the violations found for the applicants.
32984/96 Alfatli and others (applicant Mahmut Memduh Uyan), judgment of 30/10/03, final on 24/03/04
The case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (jurisdiction of which was abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violation of Article 6§1). The proceedings, of which the European Court took account as from 28/01/1987 (the date of Turkey’s recognition of the right of individual petition) began in February 1985 and were ended in December 1995 (more than 8 years and 11 months).
In the meantime, the applicant, who was sentenced to death by the Martial Law Court, was released in February 1995 while the proceedings were pending before the Court of Cassation.
The case also concerns the independence and impartiality of the Ankara Martial Law Court on account of the presence of two military judges and an army officer on the bench (violation of Article 6§1).
Individual measures: Concerning the independence and impartiality of the Martial Law Court, the European Court has expressed the view that in cases in which it finds that an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress is to ensure that the applicant is in due course granted a retrial by an independent and impartial tribunal.
In a letter of 01/06/2004 the applicant informed the Secretariat that he was willing to apply for the reopening of the domestic proceedings. However, the provisions of Code of Criminal Procedure on reopening of domestic proceedings do not apply in his case (the same situation as in the cases concerning the independence and impartiality of state security courts).
• Information provided by the Turkish authorities: on 07/10/2004 the Turkish authorities informed the Secretariat that the “plan of action” for the implementation of the measures required had been brought to the attention of the Ministry of Justice. On 11/01/2005 the Turkish authorities informed the Committee that the provisions of Law No. 5352 (Law on Criminal Records) do not allow the erasure of the applicant’s conviction from his criminal records due to the heavy punishment imposed (i.e. death sentence commuted to life sentence).
• Information is awaited on the specific measures taken or envisaged by Turkey in order to ensure redress for the applicant, either by allowing the reopening of proceedings or any other ad hoc measures.
General measures: The case presents similarities to other cases of excessive length of criminal proceedings and independence and impartiality of Martial Law Courts such as that of Şahiner and others against Turkey, which was closed by final resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolishment of the jurisdiction of Martial Law Courts.
The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided concerning the individual measures, namely the erasure of all consequences of the violations found for the applicant.
- 1 case against Ukraine
47148/99 Novoseletskiy, judgment of 22/02/2005, final on 22/05/200530
This case concerns the applicant’s eviction from a flat following his temporary departure for Russia in 1995. This flat had been earlier granted to the applicant for unlimited duration by the Melitopol State Teacher Training Institute where he had taught. The applicant’s complaints were examined by the Ukrainian courts, which finally recognised his right to occupy the flat refusing, however, to award him compensation for being deprived of it between 1996 and 2001. Moreover, the flat had been restored to the applicant in a condition unfit for human habitation, which prevented the applicant from living there with his family.
The European Court found that the state had failed in its positive obligations consisting in restoring and protecting the effective enjoyment by the applicant of his right to respect for his home, his private and family life (violation of Article 8).
The Court also found a violation of the applicant’s right to property as his possessions disappeared from the flat during his absence and the criminal investigation was neither effective nor impartial (violation of Article 1 of Protocol 1).
1) Violation of Article 8: The European Court noted that, according to the last witnesses’ statements received in 2004, the flat was still in a degraded condition and no action had been taken by the authorities since 28/03/2001 to remedy the situation (see § 88 of the judgment).
• Clarification is accordingly awaited concerning the condition of the flat as well as on measures envisaged or taken to remedy the consequences of the violation.
2) Violation of Article 1 of Protocol No. 1: The European Court awarded the applicant just satisfaction in respect of all heads of damage including, apparently, the property which disappeared from the flat.
General measures: The judgment was promptly translated into Ukrainian and placed on the Ministry of Justice’s official web-site. It has also been published in the Official Herald of Ukraine, No. 31, 2005 and in the Bulletin of the Supreme Court, No. 8, 2005. Finally, the Government Agent before the Court drew attention to the present judgment in the course of a number of seminars and trainings for judges.
The Deputies decided to resume consideration of this item:
2. at their 1013th meeting (3-5 December 2007) (DH), in the light of information to be provided concerning payment of just satisfaction, if necessary;
2. at latest at their 1028th meeting (3 5 June 2008) (DH), in the light of information to be provided on individual measures, namely those envisaged or taken to remedy the degradation of the applicant’s flat.
- 2 cases against the United Kingdom
39482/98 Dowsett, judgment of 24/06/03, final on 24/09/03
The case concerns the unfairness of criminal proceedings brought against the applicant in the Crown Court (in 1989) and subsequent proceedings before the Court of Appeal (in 1994) due to the failure by the prosecution to disclose certain evidence to the defence.
The European Court observed that a procedure, such as in this case, whereby the prosecution itself - without notifying the trial judge - assessed the importance to the defence of concealed information and weighed that against the public interest in keeping the information secret, could not comply with the requirements of a fair trial. It reiterated the importance of placing material relevant to the defence before the judge for his or her ruling on questions of disclosure at the trial stage, i.e. at the time when it could serve most effectively to protect the rights of the defence.
The Court found that the review procedure before the appeal court could not remedy the unfairness caused at the trial because in this case, in deciding whether the material in issue should be disclosed, the Court of Appeal would neither have been assisted by defence counsel's arguments nor have been able to draw on any first hand knowledge of the evidence given at trial (violation of Article 6§1 in conjunction with 6§3b).
Individual measures: The applicant, who was sentenced to life imprisonment following these proceedings, applied to have his case reviewed by the Criminal Cases Review Commission (CCRC).
On 25/07/2005 the CCRC took a final decision, refusing to return the case to the Court of Appeal and concluding in particular that the new information put before it concerning the main document at issue, taken in any combination with any other frailties in the prosecution case, was not sufficient to lead it to believe that there was a real possibility that any properly directed jury might reasonably have reached a different decision in Mr Dowsett’s case. On 22/06/2006, the Divisional Court granted the applicant leave to seek a judicial review of the CCRC's decision, limited to the implications of the European Court's judgment for the safety of the conviction.
The High Court dismissed the application on 08/06/2007 ( EWHC 1923 (Admin)), concluding that the CCRC was “plainly entitled” to reach the conclusion that it had reached and so not to refer the case.
• Assessment is under way of this information in the light of the criteria set forth in Committee of Ministers’ Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights.
General measures: This case presents similarities to that of Rowe and Davis (judgment of 16/02/2000) (in Section 6.2 on the basis of the domestic case-law developments noted in the judgment and of the publication of the European Court's judgment).
These common-law rules have, however, since been superseded by the Criminal Procedure and Investigations Act 1996 (CPIA), the relevant provisions of which have recently been modified by Part V of the Criminal Justice Act 2003. This Part also introduces heavier burdens of disclosure on the defence.
As regards disclosure by the prosecution, in accordance with the new Section 3 of the 1996 Act, as amended, the prosecutor will in future be under an initial duty to disclose to the accused “any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”. In addition, by virtue of the new Section 7A, the prosecutor will be under a continuing duty to keep under review the question whether at any given time the prosecution has such material which has not been disclosed to the accused, and, if so, to disclose the material to the accused as soon as reasonably practicable. A range of measures are in place to ensure that the prosecution discharges its disclosure obligations in full. It should be recalled that under the CPIA, in neither the new text nor the former does Section 3(6) require the prosecutor to disclose material that, upon his application to a court, the court has found to be not in the public interest to disclose and orders accordingly.
Finally, although prosecution disclosure duties apply without the defence having to make an application for disclosure, in accordance with the new Section 8, a safeguard section, the accused may apply to the court for an order requiring the prosecutor to disclose material which has not been disclosed to him or her and which he or she believes is required to be disclosed.
The United Kingdom authorities indicated that these provisions came into force on 04/04/2005 under the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order SI 2005/950 made on 24/03/2005.
The judgment of the European Court was published in European Human Rights Reports, (2004) 38 EHRR 41.
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of the assessment of the information provided concerning individual measures.
39647/98+ Edwards and Lewis, judgment of 27/10/2004 - Grand Chamber
The case concerns violations of the applicants' right to a fair trial due to two judicial decisions (of 1995 and 1996) to withhold certain evidence from the defence in violation of the principle of equality of arms and without adequately protecting the interest of the accused in criminal proceedings against them (violations of Article 6§1). The applicants argued that their criminal offences were the result of entrapment by undercover police officers.
The trial judges dismissed these claims on the ground that the undisclosed evidence did not prove entrapment, that it would not assist the defence and that non-disclosure was justified by genuine public interest. The European Court noted that the defence had been unable to argue the case on entrapment in full before the judges, because the evidence could not be challenged, and that the same judges who decided to withhold the evidence had also decided on an issue of fact related or possibly related to the withheld evidence. The applicants were sentenced to nine years' and four and a half years' imprisonment respectively.
Individual measures: Neither of the applicants is still detained.
According to the information received from the applicants' lawyers, Mr Lewis had not appealed his conviction prior to his application to the European Court. Leave was subsequently granted to appeal out of time but this appeal against his original conviction was dismissed on 06/04/2005 by the Court of Appeal ([2005} EWCA Crim 859). A further application was made to the European Court under Article 6 following the Court of Appeal’s judgment, but that application was rejected at an early stage.
Mr Edwards applied to the Criminal Cases Review Commission (CCRC) to have his case referred to the Court of Appeal. According to information provided by the applicant, the CCRC decided on 28/02/2007 not to refer his case. On 14/08/2007 a single judge of the High Court refused to grant permission for the judicial review of this decision. The applicant has renewed his application for a hearing before the full court, arguing in particular that the domestic courts have failed to give due effect to the judgment of the European Court.
• Assessment: In view of the concerns raised as to the effective application at domestic level of the judgment of the European Court, information is awaited as to the outcome of the judicial review application in the case of Mr Edwards.
General measures: In a letter of 21/04/2005, the United Kingdom authorities indicated that on 05/02/2004 the House of Lords had delivered the decision in the case of R v H and others  2 AC 134, in which it considered the question of whether the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings were compliant with Article 6 of the Convention.
1) Disclosure of sensitive evidence: the House of Lords set out in its decision a number of general guiding principles on disclosure and the procedure which must be followed when a court is faced with an application to withhold sensitive material from the defence. The House of Lords concluded that such procedure was in compliance with Article 6. The principles were summarised in the Guidance which was issued by the Director of Public Prosecutions on 13/02/2004 and circulated among lawyers, caseworkers and prosecutors. One of the principles sets out that prosecutors should not put material unnecessarily before the court. The principles were later included Chapters 12 and 13 of the Crown Prosecution Service's Disclosure Manual issued in April 2005. Moreover, the United Kingdom authorities indicated that Part 5 of the Criminal Justice Act 2003 recently amended the disclosure regime in the Criminal Procedure and Investigations Act 1996. This latter Act gave statutory force to the prosecution's duty of disclosure. The new test requires initial and continuing prosecution disclosure of any previously undisclosed material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”. The new edition of the Crown Prosecution Service's Disclosure Manual (issued in April 2005) supersedes all previous guidance. Along other things it clearly sets out when the prosecutor's statutory duty to disclose is triggered, the importance of scrupulously observing that duty, and sets out the consequences of failure to do so.
2) Possibility of appointing a “special independent counsel”: the House of Lords held that there may be certain criminal trials where such counsel is necessary and in the interests of justice. However, such an appointment should always be exceptional and not automatic.
Moreover, the UK authorities have provided information on the procedure that is followed in the event that a court decides that it requires the assistance of independent counsel.
The Deputies decided to resume consideration of this item at the latest at their 1020th meeting (4-6 March 2008) (DH), in the light of information to be provided on individual measures.
1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1007th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.
2 Inclusion of cases in this Section does not exclude the possibility that general measures may be examined at subsequent meetings.
3 This case also appears in Section 3.a
4 This case also appears in Section 3.a
5 This case also appears in Section 3.b
6 This case also appears in Section 3.a
7 This case also appears in Section 3.b
8 This case also appears in Section 3.b
9 This case also appears in Section 3.a
10 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
11 This case also appears in Section 3.a
12 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
13 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
14 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
15 This case also appears in Section 3.a
16 This case also appears in Section 3.b
17 The Secretariat proposes to postpone these cases to the 1013th DH meeting (3-5 December 2007).
18 This case also appears in Section 3.b
19 This case also appears in Section 3.b
20 This case also appears in Section 3.b
21 This case also appears in Section 3.a
22 This case also appears in Section 3.a
23 This case also appears in Section 3.b
24 This case also appears in Section 3.b
25 This case also appears in Section 3.a
26 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
27 This case also appears in Section 3.a
28 This case also appears in Section 3.a
29 The Secretariat proposes to postpone this case to the 1013th DH meeting (3-5 December 2007).
30 This case also appears in Section 3.a