Ministers’ Deputies
Annotated Agenda

CM/Del/OJ/DH(2007)1007 Section 6.1 PUBLIC 13 November 2007
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1007th meeting (DH), 15-17 October 2007

- Annotated Agenda1
- Decisions

Section 6.1

Public information version

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SECTION 6 - CASES PRESENTED WITH A VIEW TO THE PREPARATION OF A DRAFT FINAL RESOLUTION
(See Addendum 6 for part or all these cases)

Action

At the time of issuing the present annotated Agenda and Order of Business, the information available on the measures taken in these cases seemed to allow the preparation of draft resolutions putting an end to their examination by the Committee of Ministers (if necessary, supplementary information on some or all the cases listed below will appear in an Addendum 6). As regards the cases appearing under sub-section 6.1, the Deputies are invited to examine the new information available with a view to evaluating whether a draft final resolution can be prepared. As regards cases listed under sub-section 6.2, the Deputies are invited to note that the elaboration of a draft final resolution, in cooperation with the delegation of the respondent State, is under way. In both cases, the Deputies are invited to postpone consideration of these cases to their next meeting.

Cases in which the new information available since the last examination appears to allow the preparation of a draft final resolution

- 3 cases against Austria

42780/98 I.H., judgment of 20/04/2006, final on 20/07/2006
The case concerns the violation of the applicants’ right to be promptly informed of the nature of the charges against them because a more serious charge was substituted in the verdict reached by the regional court in 1997. The applicants had been charged with rape under Article 201§2 of the Criminal Code, but were actually convicted of aggravated rape under Article 201§1, which carries a heavier sentence.
The European Court took the view that, for the right to defence be exercised effectively, the defence must have at its disposal full, detailed information concerning the charges made, including the legal characterisation that the court might adopt in the matter. Such information must be given either before the trial in the bill of indictment, or at least in the course of the trial by other means such as formal or implicit extension of the charges (§34 of the judgment). Furthermore the applicants received no redress for this omission at appeal (violation of Article 6 § 1, 3 (a) and (b)).
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage. Furthermore, the applicants may request reopening of the proceedings under section 363a of the Austrian Code of Criminal Procedures.
General measures: A summary of judgments and decisions by the European Court concerning Austria is regularly prepared by the Federal Chancellery and disseminated widely to relevant Austrian authorities as well as Parliament and courts. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the Court's judgments in English.
In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of the Convention and the Court's case law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

10523/02 Coorplan-Jenni GmbH and Hascic, judgment of 27/07/2006, final on 11/12/2006
62539/00 Jurisic and Collegium Mehrerau, judgment of 27/07/2006, final on 11/12/2006
The cases concern the fact that, in February 2000 (Jurisic and Collegium Mehrerau) and in February 2001 (Coorplan-Jenni GmbH and Hascic), the applicant companies were denied an oral hearing before the Administrative Court in proceedings concerning applications to grant employment permits to their employees under the Employment of Aliens Act (Ausländerbeschäftigungsgesetz) (violations of Article 6§1).
These cases also concern the violation of the right of the applicants, Mr Jurisic and Mr Hascic to have access to a court, as they were not considered to be parties to the proceedings in question (violations of Article 6§1).
Individual measures: The Employment of Aliens Act is no longer applicable to the applicants, Mr. Jurisic and Mr. Hascic, because their respective spouses became Austrian citizens in 2002 and 2000. Thus the individual applicants may work without restrictions.
Furthermore, the respondent state in both cases acknowledged that the right of access to a court had been violated.
Assessment: Thus no further individual measures appear necessary.
General measures:
1) Denial of an oral hearing before the Administrative Court: these cases present similarities to the Schelling case (Section 6.2).
2) Denial of access to a court: As with all judgments of the European Court against Austria the judgment was automatically transmitted to the Presidency of the domestic court concerned. A summary of European Court judgments and decisions concerning Austria is regularly prepared by the Federal Chancellery and sent out widely to relevant Austrian authorities as well as Parliament and courts. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS).

Judgments of the European Court concerning Austria are habitually published in a summary version via <http://www.menschenrechte.ac.at/> together with a link to the Court's judgments in English. In view of these measures taken and the direct effect of the Convention in Austria, it can be assumed that the requirements of Article. 6§1 of the Convention and the Court's case law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of a final resolution to be prepared by the Secretariat.

- 1 case against Belgium

*13583/02 Pandy, judgment of 21/09/2006, final on 12/02/2007
The case concerns an infringement of the principle of the presumption of innocence on account of a statement made about the applicant, suspected of involvement in the disappearance of six members of his family, by the investigating judge in charge of the case (violation of Article 6§2).
The applicant is currently serving a life sentence which he received in 2002 for the murder of six members of his family and for the rape and sexual assault of several of his daughters.
Individual measures: The European Court considered that the judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. Moreover it concluded that the applicant's guilt had been lawfully established and the proceedings viewed as a whole had been fair.
General measures: The European Court's judgment was sent to the Conseil Supérieur de la Justice and to the Collège des Procureurs généraux with a view to its broad dissemination to the courts concerned and so that it can be taken into account in the training of judges having relations with the press.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be prepared by the Secretariat.

- 1 case against Denmark

5989/03 Iversen, judgment of 28/09/2006, final on 28/12/2006
The case concerns the excessive length of certain civil proceedings (8 years and 9 months) (violation of Article 6§1).
Individual measures: None: proceedings closed.
General measures: The excessive length of civil proceedings does not appear to be a systemic problem in Denmark. The judgment was published in the periodical “EU-ret og Menneskeret” (No. 1, 2007). Given the direct effect of the European Court’s judgments in Denmark, it is expected that the Danish courts will align their practice with the Convention.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December) (DH), in the light of a final resolution to be prepared by the Secretariat:

- 3 cases against Germany

54810/00 Jalloh, judgment of 11/07/2006 - Grand Chamber
The case concerns inhuman and degrading treatment suffered by the applicant due to the forcible administration of emetics to obtain evidence.
In 1993, police saw the applicant take two tiny plastic bags out of his mouth and give them to someone else for money. They arrested the applicant on suspicion of drug-dealing whereupon he swallowed another bag that he had in his mouth. No drugs being found on the applicant’s person, the prosecutor ordered the administration of an emetic under Section 81a of the German Code of Criminal Procedure. This provision is interpreted by many German courts and writers as a sufficient legal basis to secure evidence through an interference with the suspect’s physical integrity without his or her consent.

The applicant was taken to hospital where he refused to take medication to induce vomiting. He was then restrained by four policemen while a doctor forcibly administered emetics by nasogastric tube and by injection. The applicant then regurgitated a small bag containing 0.2182g of cocaine.
The European Court held that by administering emetics by force verging on brutality for the mere purpose of securing evidence of an offence, the authorities had gravely interfered with the applicant’s physical and mental integrity. It also noted that the authorities fully realised that the applicant was selling drugs in small quantities, as is reflected in the subsequent sentence. Thus recourse to an emetic was not indispensable, as the evidence might have been obtained by less invasive means (elimination by the normal process of nature) (§§77-79) (violation of Article 3).
The case also concerns a violation of the applicant’s right to a fair trial and his right not to incriminate himself due to the decisive reliance on evidence obtained in violation of the Convention. The Court also noted that the public interest in securing the applicant’s conviction could not justify recourse to such a grave interference with his physical and mental integrity (§§117-119) (violation of Article 6§1).
In the subsequent criminal proceedings the applicant was convicted and sentenced to a one-year suspended prison sentence, reduced to six-months suspended on appeal.
Individual measures: The applicant may apply for reopening of the criminal proceedings under Article 359§6 of the Code of Criminal Procedure. In such reopened proceedings, the use of the evidence obtained by force would be re-assessed in the light of the European Court’s judgment. In addition the European Court awarded the applicant just satisfaction in the sum of 10 000 euros in respect of non-pecuniary damage. Thus no further individual measure seems necessary.
General measures:
1) Violation of Article 3: The practice of administering emetics in order to obtain evidence was expressly abandoned in the Länder which had used it (Berlin, Bremen, Hamburg, Hessen and North Rhine-Westphalia).
2) Violation of Article 6§1: In view of the direct effect of the Convention in Germany, it may be assumed that the requirements of Article 6§1 of the Convention and the European Court's case-law will be taken into account in the future, thus preventing new, similar violations, after the publication and dissemination of the judgment of the European Court. In this context it should be noted that, all judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/). The judgment of the European Court was also sent out to the courts concerned and to appropriate local administrations (all state administrations of justice, all Ministries of Justice of the Länder - Landesjustizverwaltungen) and federal authorities (Federal Ministries of Interior and of Health).

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

27250/02 Nold, judgment of 29/06/2006, final on 11/12/2006
The case concerns the excessive length of certain civil proceedings before the Bad Kreuznach Regional Court in Rhineland-Palatinate concerning a construction dispute. Proceedings began in 1995 and ended in 2003 (nearly 8 years) (violation of Article 6§1).
Individual measures: None (proceedings closed).
General measures: In July and September 2006 the Government Agent sent the judgment of the European Court out to the courts and justice authorities concerned.
All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (<http://www.bmj.de>, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court's website for judgments in German (<http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/>). In view of these measures taken and the direct effect of the Convention in Germany, it may be assumed that the requirements of Article 6 of the Convention and the European Court's case law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- Case of length of civil proceedings
66491/01 Grässer, judgment of 05/10/2006, final on 26/03/2007
The case concerns the excessive length of certain civil proceedings in an official liability action for compensation (Amtshaftungsklage) against the city of Saarbrücken. The proceedings lasted more than 28 years involving four levels of jurisdiction (violation of Article 6§1).
Individual measures: None, the domestic proceedings in question were ended in 2003.
General measures: In October and December 2006 the Government Agent sent the judgment of the European Court out to the courts and justice authorities concerned.
All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (<http://www.bmj.de>, Themen: Menschenrechte, EGMR) which provides a direct link to the European Court's website for judgments in German (<http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/>). In view of these measures taken and the direct effect of the Convention in Germany, it may be assumed that the requirements of Article 6 of the Convention and the European Court's case law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Liechtenstein

5010/04 Von Hoffen, judgment of 27/07/2006, final on 11/12/2006
The case concerns the excessive length of certain criminal proceedings for fraud brought in May 1994 and closed in March 2004 (9 years and 10 months for four degrees of jurisdiction) including preliminary investigations of more than 6 years (violation of Article 6§1).
Individual measures: None (proceedings closed).
General measures: Article 239 § 1 of the Code of Criminal Procedure (CCP) provides that in investigative proceedings, anyone considering they have been adversely affected by a delay caused by an examining magistrate or by an order issued shall have the right to obtain a decision of the Court of Appeal which can then take measures in this regard (Article 243 CCP). Furthermore, with regard to the Court's finding that although the preliminary investigations were lengthy, the proceedings were conducted speedily at the trial and appeal stages, the case does not reveal a structural problem but seems to be an isolated one.
In January 2007, the judgment of the European Court was sent out to the authorities concerned. It was published in the Liechtensteinische Juristen-Zeitung (LJZ), June 2007, p. 61 - 66 as part of the official compilation of decisions (Liechtensteinische Entscheidungssammlung, LES). Furthermore, the website of the respondent state provides a direct link to the European Court's website (http://www.liechtenstein.li - Staat - Aussenpolitik - Multilaterale Beziehungen/Internationale Organisationen - Europarat).
In view of these measures taken and the direct effect of the Convention in Liechtenstein, it may be assumed that the requirements of Article 6§1 and the Court's case-law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 1 case against Luxembourg

60255/00 Pereira Henriques, judgment of 09/05/2006, final on 09/08/2006
The case concerns the failure to investigate effectively the collapse of a wall during demolition work in 1995, which caused the death of the applicant’s husband and father, with a view to the possible punishment of those responsible (violation of the procedural aspect of Article 2).
The European Court held that in the specific circumstances the prosecution did not conduct a thorough investigation, given that it must have known that, as no intentional offence had been found by the criminal courts, the family of the deceased would be unable under Luxembourg law to seek explanations from the contractors as to their acts or omissions. In particular, the prosecution should have asked for an expert opinion (§ 62).

Furthermore, the applicants had no effective remedy whereby they might seek compensation following the ineffective investigation (violation of Article 13).
Individual measures:
1) Violation of Article 2: At this stage it is no longer possible to obtain the expert opinion which should have been sought according to the European Court, as the building at issue no longer exists; so it is materially impossible to enhance the investigation of the events at issue in any useful way. Furthermore, the government indicates that any public prosecution would be time-barred, thus making a criminal investigation pointless.
2) Violation of Articles 2 and 13: The European Court granted the applicants just satisfaction in respect of the non-pecuniary damage suffered.
General measures:
1) Violation of Article 2: Several measures have been taken to ensure that such failure to investigate will not occur in the future: the Public Prosecutor’s Office has been informed of the findings of the European Court in this case: on 8/06/2006 the Ministry of Justice transmitted the judgment to the State Prosecutor General, who sent it out to all the presidents of courts by a letter dated 9/06/ 2006.
Earlier, in 2000, memoranda on industrial accidents had been sent out to public prosecutors and to the Director General of the Luxembourg Police, who sent a similar memorandum to police officers responsible for investigations, by letter dated 24/05/2006.
Finally, the general public has also been informed of the requirements of the Convention as they emerge from this judgment, as it was published in Codex, issue No. 04 of 2006 (p. 173) and on the Internet site of the Ministry of Justice (http://www.mj.public.lu/juridictions/arrets_concernant_le_luxembourg/index.html).
2) Violation of Article 13: The Law of 01/09/1988 on the civil liability of the state and public authorities - in particular Articles 1 and 2 - makes it possible to seek compensation in cases of ineffective criminal investigation. It is possible under this law to engage the state’s liability on grounds of defective functioning of its authorities, i.e. both administrative and judicial authorities. Under this law it is also possible, inter alia, to grant compensation even in the absence of such a dysfunction, if there is specific and exceptional damage, that it would be unfair to let the affected person bear. There are examples in national jurisprudence applying this law, or at least declaring it applicable, to engage the state’s liability relying on the way in which pre-trial investigations were pursued, e.g. because of the disproportionate character of certain investigation measures (see Tribunal d'arrondissement de Luxembourg, XIth Ch., No. 81446 of 16/12/2005 ; Cour d'appel, 1st Ch., No. 24442, judgment of 11/07/2001, confirmed by the Cour de Cassation, No. 1928, judgment of 19/12/2002).
In the present case, the applicants did not try to engage the State’s liability relying on this law; this possibility has not been discussed before the Court either.
Given the wording of the law, the fact that courts have already applied this law in case of a defective functioning of justice in criminal investigations, and the fact that the Luxemourg courts – who have been duly informed of this judgment –directly apply the Convention as interpreted by the Court, it seems possible to conclude in the future, an effective remedy will make it possible to seek compensation following an ineffective investigation.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 1 case against Portugal

75088/01 Urbino Rodrigues, judgment of 29/11/2005, final on 01/03/2006
The case concerns a violation of the right of freedom of expression of the applicant, a journalist, in that in 2000 he was convicted of criminal libel and sentenced to pay a fine, following publication of his response to highly polemical remarks published by another journalist concerning an article of the applicants.
The European Court considered that the limits of acceptable criticism were wider with regard to a journalist acting in his public capacity than in relation to a private individual and, in the light of the distinction to be made between value judgments and factual statements, concluded that the decisions of the Portuguese courts were based on insufficient grounds and were therefore disproportionate (violation of Article 10).

Individual measures: The just satisfaction awarded by the Court in this case covers entirely the fine paid by the applicant as a consequence of his conviction. In addition, the applicant’s conviction is no longer mentioned on his record.
Assessment: No further individual measure thus appears necessary.
General measures: This case presents similarities to that of Lopes Gomes da Silva (37698/97, judgment of 28/09/00, final on 28/12/00, Section 6.2). A translation of the judgment of the European Court has been published on the official internet site (www.gddc.pt).

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a final resolution to be prepared by the Secretariat.

- 2 cases against Switzerland

73604/01 Monnat, judgment of 21/09/2006, final on 21/12/2006, rectified on 11/01/2007
The case concerns the violation of the right to freedom of expression of the applicant, a journalist, due to measures taken against a television documentary he made, entitled Switzerland’s lost honour, which deals with Swiss history during the Second World War (violation of Article 10). On 27/08/1997, in a decision subsequently confirmed by the Federal Tribunal, the Independent Broadcasting Complaints Authority accepted numerous complaints it had received and found that the documentary failed to comply with broadcasting law on account of its failure to respect the obligation of objectivity and the plurality and diversity of opinion. Following these proceedings, the competent Huissier of the City of Geneva decreed an embargo forbidding all European or foreign television services to have the programme.
The European Court found that the acceptance of these complaints by the Swiss authorities did not represent a reasonably proportionate means of achieving the legitimate aim pursued, taking account in particular of democratic society’s interest in ensuring and maintaining freedom of expression, of the reduced margin of appreciation applicable to information of public interest, of the fact that the criticisms in documentary were directed at the actions of senior officials and politicians and, lastly, of the serious nature of the programme and the research upon which it was based (§71 of the judgment).
Individual measures: The European Court considered that the finding of a violation constituted sufficient redress for the non-pecuniary damage sustained but awarded just satisfaction in respect of costs. The applicant did not ask for the proceedings to be re-opened. Télévision suisse romande (TSR) broadcast the applicant's film on 12/11/2006, at 8.30 p.m. (http://www.tsr.ch/tsr/index.html?siteSect=342401&sid=7246207), and there is no more obstacle to the distribution of this film which is, in particular, accessible on line (http://archives.tsr.ch/search).
General measures: By letter of 21/09/2006, the Government Agent transmitted the Court's judgment to the Federal Tribunal, the Federal Office of Communication and to the Independent Complaints Authority. In addition, a summary will appear in the Annual report of the Federal Council concerning the activities of Switzerland in the framework of the Council of Europe to be published in the official gazette Feuille fédérale. The full judgment will further be published in "Jurisprudence des autorités administratives de la Confédération (JAAC) [vol. 70 [2006], fasc. VI, Nr. 117 http://www.vpb.admin.ch/deutsch/doc/70/70.117.html).

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

77551/01 Dammann, judgment of 25/04/2006, final on 25/07/2006
The case concerns a disproportionate interference with the applicant’s freedom of expression in that he was convicted of inciting another to disclose an official secret, under Section 320 in conjunction with Section 24§1 of the Swiss Criminal Code (violation of Article 10).
In 1997, the applicant, a Swiss journalist, investigated a post office robbery. He obtained a list of names of persons being arrested in this context and asked an assistant at the office of the public prosecutor to see whether these individuals had any previous convictions. When the assistant agreed, he faxed her the list and received it back with the information requested. The applicant did not publish or otherwise make use of the information but apparently showed the fax to a policeman who reported the incident to the prosecuting authorities.
The European Court found that, as the information had not been communicated to the applicant in confidence and as the applicant had not used undue means to obtain the information, the Swiss government had to bear a large share of responsibility for the indiscretion committed by the assistant.

Furthermore, no damage had been done to the persons concerned. In the light of these findings, the Court held that even though the applicant had been sentenced to a small fine, his conviction had amounted to a kind of censorship which risked discouraging him from investigative work and was likely to hamper the press in its role as a provider of information and watchdog.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage. Furthermore, in July 2006, the respondent state informed the applicant of the European Court’s judgment. The applicant requested reopening of the domestic proceedings under Articles 139a and 141 of the Federal Act on the Organisation of the Judiciary (Bundesgesetz über die Organisation der Bundesrechtspflege). On 3/11/2006, the Swiss Federal Court quashed the conviction in question, leading to its automatic erasure from the applicant’s criminal record under Article 12§1c. of the regulation governing criminal records (Verordnung über das Strafregister of 29/09/2006).
General measures: In April 2006, the judgment of the European Court was sent out to the authorities concerned. It was published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 70.118, available via http://www.vpb.admin.ch/deutsch/doc/70/70.118.html. In view of these measures taken and the direct effect of the Convention in Switzerland, it may be assumed that the requirements of Article 10 and the Court's case-law will be taken into account in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 5 cases against Turkey

24245/03 D. and others, judgment of 22/06/2006, final on 23/10/2006
The case concerns administrative proceedings which, if resolved unfavourably, might culminate in the deportation of the applicants (a husband, a wife and their daughter) to Iran, where one of them (the wife) is under sentence by an Islamic court of 100 lashes.
In 1999 the applicants fled to Turkey to avoid the execution of the wife’s corporal punishment. When the UNHCR (United Nations High Commissioner for Refugees) denied them permanent asylum-seeker status, the applicants were served with a ministerial decree indicating that their temporary residence permits would not be renewed and that they were free to return to Iran or make their way to a third country of their choice, failing which they ran the risk of deportation. However, no deportation order was ever issued against the applicants. The applicants filed an objection against the ministerial decree. The examination of this objection was pending at the time of the judgment.
The European Court found that, if deported to Iran, the wife ran the risk of being subjected to inhuman punishment contrary to Article 3. The Court also considered that if she were to be deported, that measure would also constitute a breach of Article 3 in respect of the husband and the daughter.
Individual measures: The applicants’ temporary residence permits were initially extended until 18/05/2007. By a letter of 30/03/2007, the Turkish authorities informed the Secretariat that the administrative proceedings had been finalised in favour of the applicants. The applicants have been granted “refugee status” and residence permits in the district of Kastamonu for a renewable period of one year starting from 18/05/2007, pursuant to Article 17 of Law No. 5683 on residence and entry of foreigners into Turkey and Article 6 of the regulation on refugees and asylum-seekers.
General measures: The case presents similarities to that of Jabari (Section 6.2), in the context of which the Turkish authorities have adopted certain general measures. The judgment of the European Court was published in issue 327 of the Bulletin of the Ministry of Justice.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

61353/00 Tunceli Kültür ve Dayanışma Derneği, judgment of 10/10/2006, final on 12/02/2007
The case concerns the violation of freedom of association of the applicant, a cultural association. In 2000 the chairperson and a member of the association's board of management were sentenced to a year's imprisonment for having made or authorised statements of a political nature, the tenor of which was contrary to the association's social aim. The association was dissolved under Article 76§1 of the Associations Act No. 2908 which was in force at the material time.

The European Court noted that the Turkish courts had considered that only the individuals prosecuted, and not the association itself, were criminally responsible under the law. Nevertheless, in convicting the directors the Turkish courts had also dissolved the association, even though it had not been a party to the criminal proceedings brought against the directors. In those circumstances, the Court considered that the dissolution could not reasonably answer a “pressing social need” and that it had not therefore been “necessary in a democratic society” (violation of Article 11).
Individual measures: Under the new Associations Act, the applicant association may be freely re-established. By a letter of 27/08/2007, the Turkish authorities informed the Secretariat that no request by the applicant had been filed to be re-established.
General measures: The Associations Act No. 2908 at the origin of the violation was repealed and replaced by the new Law No. 5253 of 04/11/2004, which contains no provision similar to former Article 76§1 mentioned above.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be drafted by the Secretariat.

20868/02 Turan Metin, judgment of 14/11/2006, final on 14/02/2007
The case concerns the violation of the right to freedom of association on account of the applicant’s transfer to another region by decision of a state of emergency governor on account of his trade union activities (violation of Article 11) and the lack of effective remedy in this respect (violation of Article 13).
Individual measures: On 18/09/2007, the Turkish authorities submitted information on the applicant’s situation: After his transfer by the governor, the applicant chose to be stationed in another region. He worked there until his resignation in 2002. Throughout that time, he continued his trade union activities.
General measures: This case presents similarities in particular to the case of Güneri and others which was closed following the adoption of general measures (see Final Resolution CM/ResDH(2007)97).

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

50959/99 Odabaşı and Koçak, judgment of 21/02/2006, final on 03/07/2006
This case concerns an unjustified interference with the applicants' freedom of expression on account of their criminal conviction, in 1998, for publishing a book which was considered by the Turkish courts to defame the memory of Atatürk, under Articles 1 and 2 of Law No. 5816. The European Court noted that the offending statements did not target Atatürk personally, but rather the Kemalist ideology, that the applicants had not made value judgments, that their work was based on information already available to the wide public and that the disputed passages did not incite to violence (violation of Article 10).
Individual measures: Mr Odabasi was sentenced to 18 months' imprisonment and Mr Koçak to a fine.
Information provided by the Turkish authorities: On 6/09/1999, the applicants' sentence was suspended in accordance with the Law No. 4454 concerning the suspension of pending cases and penalties in media-related offences which also provides, under certain conditions, the erasure of convictions and their consequences. The applicants confirmed that they are suffering no consequences of the violation.
General measures: It is to be noted this case is the first to come before the European Court concerning Law No. 5816 on crimes against the memory of Atatürk.
With regard to the measures taken, the Turkish authorities first submitted that the direct application of the Convention in Turkish law has been reinforced recently following the amendment of Article 90 of the Constitution. In particular, the Turkish authorities submitted a number of examples of decisions not to prosecute given by public prosecutors between 2004 and 2006. A certain number of these decisions concern Law No. 5816 on crimes against the memory of Atatürk in which complaints under this law had been rejected with reference to Article 10 of the Convention and explicit reference to the European Court’s case-law on freedom of expression. Some of these decisions consider debate on historical issues, including Atatürk and his personality, as falling outside the scope of defamation or insulting the founder of the Turkish.

The judgment in this case has been translated into Turkish and circulated to the relevant authorities including the Ministry of Justice and the Court of Cassation. The Turkish authorities are of the opinion that these measures will prevent similar cases of the same kind in future.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

30502/96 Yıltaş Yıldız Turistik Tesisler A.Ş., judgment of 24/04/03, final on 23/09/03 and of 27/04/2006, final on 23/10/2006, rectified on 12/12/2006
The case concerns the unreasonable amount of compensation awarded in expropriation proceedings. In 1987 the applicant company purchased just under 4 million m2 of private woodland for 6,467,693,800 Turkish liras (approximately 7.6 million US dollars at the time) and obtained planning permission in respect of part of the land. A few months later the authorities expropriated it by depositing a certain amount of money. The applicant company sought additional compensation and obtained an award of TRL 22,658,069,013 (approximately USD 3,9 million at the time). However, the Court of Cassation quashed the award disagreeing with the criteria that the first instance court had taken into account. Atthe end of the proceedings, the applicant company was paid TRL 2,971,314,013 (approximately USD 67,834 at the time). The European Court considered that the amount of compensation determined by the domestic courts was unreasonable when compared to the value of the property (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court awarded 6.1 million euros in respect of pecuniary damages. General measures: It is noted that this is an exceptional case, in which the Court found the amount of expropriation compensation calculated by domestic courts was “unreasonably low”. Thus, the Court itself calculated a reasonable amount on the basis of an official on-site visit.
Since the events giving rise to this case, the Turkish law on expropriation has undergone extensive modifications. The new Law on Expropriation that went into effect on 01/01/2000 (Law No. 4489) provides an amicable bargaining mechanism between the property owner and the expropriating authorities before expropriation may take place. If the authorities are not willing to pay the amount asked by the owner, they are supposed to file a court claim to have the value calculated. The calculation shall be done using criteria generally accepted in the property sector and by reference to the value of similarly situated immovable properties. Domestic courts may also require an expert valuation.
Assessment: In the light of these procedural safeguards as well as the fact that the judgment of the European Court was translated and disseminated to the judicial authorities, necessary general measures seem to have been taken.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 3 cases against Ukraine

25921/02 Fedorenko, judgment of 01/06/2006, final on 01/09/2006
This case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions in that domestic courts in 1999 denied his applications to invoke a contractual disposition (the so-called “dollar value clause”) intended to protect the monetary value of a contract of sale, concluded with a public authority, against currency variation (violation of Article 1 of Protocol No. 1).
The dollar value clause provided that if the exchange rate of the Ukrainian Hryvna against the dollar were to fall, the total sum due could not be less than the equivalent of USD 17,000. However, instalments paid by the buyer on two occasions in 1997 were considerably less in US dollar equivalent due to a fall in the value of the Hryvna. The applicant’s claim for compensation was granted by a district court, but subsequently rejected by Kirovograd Regional Court and Supreme Court in 2002 on the ground that the Hryvna was the only currency which could be used for internal transactions at the material time.
Individual measures: The European Court awarded the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage sustained. No individual measure seems necessary.
General measures: The case does not appear to reveal a structural problem in Ukrainian law. The Hryvna is normally the only currency used in commercial transactions.

Information provided by the Ukrainian authorities (letter of 26/04/2007):
1) Translation and publication of the judgment of the European Court: The judgment was translated into Ukrainian and placed on the Ministry of Justice’s official website. It was published in the official government bulletin, the Official Herald of Ukraine No. 39 of 11/10/2006. A summary of the judgment in Ukrainian was also published in the Government Currier No. 179 of 26/09/2006.
2) Dissemination to courts: By letter of 15/09/2006, the attention of the Supreme Court of Ukraine was drawn to the conclusions of the European Court so that Ukrainian courts might make use of them.
3)Targeted dissemination. By letter of 29/09/2006, the attention of the Kirovograd Regional Department of Justice was drawn to the conclusions of the European Court.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be drafted by the Secretariat.

63566/00 Pronina, judgment of 18/07/2006, final on 18/10/2006
The case concerns the violation of the applicant's right to a fair hearing before the Yalta City Court and Supreme Court of the Autonomous Republic of Crimea in appeal proceedings brought in 2000 concerning her pension rights. In this respect, both courts took a decision while failing to address and review constitutional points and arguments raised by the applicant. The European Court found that the domestic courts, by ignoring the points altogether, even though they were specific, pertinent and important, fell short of their obligations under Article 6§1 (violation of Article 6§1).
Individual measures: By letter of 13/11/2006, the government informed the applicant of the possibility provided by the legislation in force to apply for review of the proceedings at issue under exceptional circumstances. According to the information available, the applicant has lodged no application for such revision.
The European Court awarded just satisfaction in respect of non-pecuniary damage sustained. The applicant made no claim in respect of pecuniary damage. No further individual measure is required.
General measures:
1) Translation and publication of the judgment of the European Court: The judgment was translated into Ukrainian and placed on the Ministry of Justice’s official website. It was published in the official government bulletin, the Official Herald of Ukraine, No. 47 of 04/12/2006. A summary of the judgment in Ukrainian was also published in the Government Currier, No. 222 of 24/11/2006. The judgment was also published in the Yuridicheskaya Praktika – specialised edition for lawyers – No. 50, 2006, 12.
2) Dissemination among the courts: By letter of 07/07/2006, the attention of the Supreme Court of Ukraine was drawn to the European Court’s conclusions so that Ukrainian courts might make use of them.
3) Further dissemination: The Government Agent drew attention to the present judgment in the course of a number of seminars and training sessions for judges.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

23436/03 Melnyk, judgment of 28/03/2006, final on 28/06/2006
The case concerns a violation of the applicant's right of access to a court. On 29/04/2002 the Court of Cassation, retroactively applying the new Code of Civil Procedure, dismissed as out of time her appeal on a point of law.
The European Court considered that while the retroactive application of civil law was not contrary to the Convention as such, in the present case there was no transitory measure expressly providing retroactivity of the new text. In addition, if she was to comply with the new time-limit for appeals, the applicant would have had to lodge her appeal before the new Code entered into force. The Court therefore concluded that the retroactive application of the Code had undermined the principle of legal certainty and was not proportionate to the purpose of the legislative change (violation of Article 6§1).
Individual measures: On 07/07/2006, the authorities informed the applicant about the possibility provided by the legislation in force to apply for review of the impugned proceedings under exceptional circumstances. According to the information available as of 23/01/2007, the applicant lodged no application for such revision.
General measures: Given the time elapsed since the adoption of the new Code of Civil Procedure the problem is not likely to arise in the future.

The judgment of the European Court has been translated and placed on the Ministry of Justice’s official website. It has also been published in the Official Herald of Ukraine, while the summary of the judgment was also published in the Government Currier, no. 128 of 13/07/2006. By letter of 07/07/2006, the attention of the Supreme Court of Ukraine was drawn to the Court’s conclusions in this case.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 6 cases against the United Kingdom

68890/01 Blake, judgment of 26/09/2006, final on 26/12/2006
This case concerns the excessive length of certain civil proceedings (9 years and 2 months for 3 jurisdictions). In May 1991 the Attorney General brought proceedings before the High Court to prevent the applicant from receiving royalty payments on a book about his life in the secret service on the grounds that the applicant had acted in breach of the duty of confidence he owed to the Crown as a former member of the British Secret Intelligence Service (SIS). The case was appealed to the Court of Appeal and the House of Lords, which delivered a judgment in July 2000.
The European Court noted periods of inactivity before all three jurisdictions for which no adequate explanation had been given by the government. Taking into account the circumstances of the case, the Court did not consider that the proceedings against the applicant were pursued with the diligence required (violation of Article 6§1).
Individual measures: The proceedings in question have been ended. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage and of costs and expenses for the proceedings before the European Court. The applicant made no claim for pecuniary damage.
General measures:
Measures taken:
1) Proceedings before the High Court and Court of Appeal: The Committee of Ministers’ examination of a group of similar cases, those of Davies; Foley; Mitchell and Holloway and Price and Lowe, concerning excessive length of civil proceedings before the High Court and Court of Appeal, was closed by ResDH(2006)28. In that resolution, it was noted that on 26/04/1999 the new Civil Procedure Rules (CPR) came into effect. Those Rules aim at accelerating proceedings before the civil division of the Court of Appeal, the High Court and county courts.
The proceedings before the High Court and Court of Appeal in the Blake case took place before the new Civil Procedure Rules entered into effect.
2) Further measures taken regarding the Court of Appeal: Other changes were implemented as the result of a review of the Civil Division of the Court of Appeal (the “Bowman report”). As a result, the times for all key stages in the processing of appeals and applications fell.
Supervising Lords Justice now take responsibility for overseeing case management.
The Master of the Rolls’ Practice Note of February 2003 sets clear dates by which cases must be heard (“hear-by dates”). The Master of the Rolls gave clear guidance on principles for expedition in appropriate cases. See http://www.hmcourts-service.gov.uk/cms/civilappeals.htm (click on "Hear-by Dates").
The Civil Appeals Office monitors the throughput of applications and appeals closely. Reports are prepared on any cases which have passed the hear-by date.
The UK authorities note that these substantial administrative changes have had a significant effect in reducing the time cases take to be heard.
Moreover, the Ministry of Justice keeps the systems in place under review.
3) Further measures taken regarding the House of Lords: The House of Lords have reviewed their procedures in light of the Blake judgment. From October 2007, the Appellate Committee of the House of Lords will sit regularly in two divisions. This means that two courts will sit simultaneously, allowing twice as many appeals to be heard and thereby significantly reducing the delay between decisions of the Court of Appeal and the House of Lords.
The House of Lords seek to respond when any urgent hearing is required, and to expedite appeals where considered appropriate. The House of Lords will, in appropriate cases, give priority where there has already been a long period of accrued delay.
4) The Human Rights Act (HRA): The HRA provides that it is unlawful for all public authorities, including courts, to act in a way which is incompatible with Convention rights (HRA Section 6). This means that the courts have a duty to conduct proceedings within a reasonable time, consistent with Article 6 of the Convention. If they do not, the victim may either raise that issue within the proceedings themselves or as a ground of appeal. The victim could therefore apply within the course of the proceedings for an order that the proceedings be expedited, as well as seek a declaration that there has been a violation.

5) Publication and Dissemination: Copies of the judgment have been provided to all Civil Appeals Office lawyers and their senior administrators.
The judgment has been reported in the following publications: The Times, 11/10/2006; All England Law Reports [2006] All ER (D) 126; and European Human Rights Law Review 2006, 1, 86-90. It has also been reported in the following journals: J.I.P.L.P. 2006, 1 (13), 813; 827-828 (Journal of Intellectual Property Law and Practice); M.L.N. 2006, 66, 31-32 (Media Law Newsletter) and the Intellectual Property Newsletter, 6/11/2006. The judgment has received wide press coverage.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

68416/01 Steel and Morris, judgment of 15/02/2005, final on 15/05/2005
The case concerns a violation of the principle of equality of arms in defamation proceedings from 1990 to 2000 against the applicants, in that they were denied legal aid (violation of Article 6§1). The applicants had been sued by two McDonalds’ companies following the publication and distribution of a campaign leaflet against McDonalds by a London environmental group with which the applicants were associated. The European Court noted that the applicants had received no legal aid since this was not provided for in such cases under the law then in force. As a result, considering the applicants’ modest means and the complexity of the case, the Court found that they were deprived of the opportunity to present their case effectively before the courts and that there was an “unacceptable inequality of arms” (§72 of judgment).
The European Court also found that in these circumstances, and given the disproportionate damages awarded by the domestic court against the applicants, there had been a failure to strike the correct balance between the need to protect the applicants’ right to freedom of expression and the need to protect the rights and reputation of the plaintiff companies (violation of Article 10).
Individual measures: The European Court awarded the applicants just satisfaction covering their non-pecuniary damages, as well as costs and expenses, but it did not award any sum in respect of pecuniary damage since the applicants had not proved that they had suffered any pecuniary loss and the plaintiff companies had not proceeded to the enforcement of the damages awarded by the domestic court. It should be noted, in this connection, that according to a constant practice of the British courts, execution of judgments awarding damages is refused after the expiry of more than six years from the date the judgment was enforceable, as is the case here (see §46 of the judgment). 
General measures:

1) Violation of Article 6§1:

a) England and Wales: Subsequent to the facts of this case, the Access to Justice Act 1999 (AJA 1999), concerning legal aid in England and Wales, came into force (01/04/2000). Legal aid is in principle still excluded for defamation cases, but Section 6(8) of this Act nonetheless provides for the discretionary “exceptional funding” of cases otherwise falling outside the scope of legal aid. It allows the Lord Chancellor to authorise the Legal Services Commission to grant legal aid to an individual defamation litigant, following a request from the Commission. According to Guidance issued by the Lord Chancellor to the Commission, in addition to financial eligibility for legal aid, the Commission must be satisfied either that “there is a significant wider public interest ... in the resolution of the case and funded representation will contribute to it”, or that the case “is of overwhelming importance to the client”, or that “there is convincing evidence that there are other exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings” (§42 of judgment). The guidance was updated following the judgment of the European Court and makes it clear that this judgment is to be considered the “benchmark” by which exceptional cases are to be considered. In addition, the Government has undertaken to keep the guidance under review, and revise it as necessary to reflect any further developments in the jurisprudence of the court.
b) Northern Ireland: Legislative provision is made in Northern Ireland, which is comparable to that made in England and Wales. The Lord Chancellor issued Guidance under Article 8 of the Access to Justice (Northern Ireland) Order 2003, which is comparable to that issued in England and Wales.

c) Scotland: The Legal Profession and Legal Aid (Scotland) Act received Royal Assent on 19/01/2007. Section 71 of the Act contains provisions amending s. 14 of the Legal Aid (Scotland) Act 1986 relating to defamation or verbal injury. Section 71 of the 2007 Act ensures the implementation of the Steel and Morris judgment in Scotland, by ensuring that civil legal aid will be available to pursuers and defenders alike, subject to an “exceptional cases test” which is set out in a ministerial direction.
The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2007 came into force on 17/08/2007. The Direction ensures that in making civil legal aid available for persons in proceedings that are wholly or partly concerned with defamation or verbal injury, the Scottish Legal Aid Board must be satisfied (in addition to the usual statutory tests) that: (i) there is significant wider public interest in the resolution of the case and funded representation will contribute to it; or (ii) that the case is overwhelming importance to the person, and (iii) that there is something exceptional about the person or the case such that without public funding for representation, it would lead to obvious unfairness in the proceedings. In determining whether there is something exceptional about the person or the case, the Board must be satisfied that the degree of exceptionality is the same or is approximately the same as in the case of Steel and Morris.
2) Violation of Article 10: The judgment of the European Court has received wide coverage and comment in the national and local press and broadcast media. In addition, it was the subject of a Parliamentary question on 22/02/2005. It was also widely reported in legal publications. In the view of the United Kingdom authorities, this will ensure that the competent courts are informed of the judgment and are able to put it into effect, with respect to both the question of legal aid in similar cases and the proportionality of damages (§96 of the judgment).
The judgment has been reported or commented in, inter alia, the following law reports: The Times Law Reports, 16/02/05; The European Human Rights Reports (2005) 41 E.H.R.R. 22; The Entertainment and Media Law Reports [2005] E.M.L.R. 15; The Law Quarterly Review (20054) Vol. 121 (July 2005), pp. 395-399; The European Human Rights Law Review (2005) 3 E.H.R.L.R., pp. 301-309.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

12350/04 Wainwright, judgment of 26/09/2006, final on 26/12/2006
This case concerns the failure of the authorities to comply strictly with procedures for the proper conduct of strip searches of the applicants, mother and son visiting a prisoner, or to take rigorous precautions to protect the dignity of those being searched (violation of Article 8).
At the material time in 1997, except for the battery (in this case an inappropriately invasive, intimate search inflicted on the second applicant), the applicants did not dispose of a means of obtaining redress for the interference with their rights under Article 8 of the Convention (violation of Article 13).
Individual measures: The European Court awarded both applicants just satisfaction in respect of non-pecuniary damages. It noted that the second applicant had received an award from the domestic courts in respect of the battery.
General measures:
1) Violation of Article 8: The European Court was not satisfied that the searches were proportionate to the legitimate aim in the manner in which they were carried out. Consequently, the searches carried out on the applicant could not be regarded as “necessary in a democratic society”.
Measures taken: The policy of HM Prison Service related to the searching of visitors is now different from what it was in 1997: more use is made of closed or closely observed visits, with strip searches occurring only rarely.
In November 2003, the Security Policy Unit of the Prison Service issued a note referring to the House of Lords’ decision in the Wainwright case and reminding prison staff of the appropriate policy on strip searching, stressing the importance of adhering to correct procedures and maintaining full and accurate records. This appeared as an article in HMPS’s Monthly Security Briefing.
In December 2006, the Security Policy Unit of the Prison Service prepared a paper to amend aspects of policy on searches. Some of the changes address issues raised in the Wainwright case. This paper has been published on the Prison Service intranet. It mentions the Wainwright judgment and underlines that any deviation from standard searching procedures amounts to a breach of Article 8 and is unlawful. It underlines that searches must be conducted with rigorous adherence to procedures and all due respect for human dignity.

It sets out standard procedures in detail and advises staff, once again, that any deviation from those procedures would result in the searches being considered unlawful.
On 14/08/2007 HM Prison Service issued a Prison Service Instruction (PSI 30/2007) to governors. Under that instruction, governors must ensure that all relevant prison staff is made aware of the changes to searching policy and practice. The instruction mentions the Wainwright case and draws attention to the revision that includes a reminder that when conducting full searches, staff must not deviate from the standard procedures, as searches will otherwise be considered unlawful.
2) Violation of Article 13: The European Court noted that aside from the battery on the second applicant, the Wainwrights could not obtain redress in the domestic courts for the other objectionable elements of the strip searches, as the House of Lords found that negligence disclosed on the part of the prison officers did not constitute grounds for any civil liability.
Since the Human Rights Act 1998 came into force in October 2000, victims of unlawful action may bring claims under section 7 of the Act. The court may grant such relief or remedy, or make such an order, within its powers, as it considers just and appropriate, including making orders for compensation (section 8 of the Act). The Court must, under section 2, take into account the case-law of the European Court. The domestic courts will be obliged to take the Wainwright judgment into account should any similar violations arise in the future.
3) Publication: The judgment of the European Court has been reported in The Times Law Report (03/10/2006); The New Law Journal (2006) 156 N.L.J. 1524; All England Reports (D) (September 2006) 125. The judgment has also been commented on in many legal publications, inter alia, Legal Action (2007) January, pp. 10-13, Public Law (2007) P.L. 2007 Spr; 151 and Solicitors Journal (2006) S.J. Vol 150 (46) 1553-1554.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

36536/02 B. and L., judgment of 13/09/2005, final on 13/12/2005
This case concerns the violation of the right of the applicants, a father-in-law and his daughter-in-law, to marry. The applicants have been co-habiting since 1996. In June 2002 they were informed that, under the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, they could not marry unless both their former spouses had died (violation of Article 12).
Individual measures: There is no longer a prohibition on the applicants’ marrying: see general measures.
General measures:
1) Legislative reforms adopted: The offending sections have been repealed in all areas of the United Kingdom. On 21/11/2005, before the judgment became final, the government responded to it in a ministerial statement, setting out its intention to amend the Marriage Act 1949.
In England and Wales, the Marriage Act 1949 was amended so as to remove the prohibition on marriage between fathers-in-law and daughters-in-law. This was done under section 10 of the Human Rights Act 1998 by a remedial Order (the Marriage Act 1949 (Remedial) Order 2007, S.I. 2007/438), which was made on 15/02/2007 and came into force on 01/03/2007 (see: http://www.opsi.gov.uk/SI/si2007/20070438.htm ).
In Scotland, the Family Law (Scotland) Act 2006 came into force on 04/05/2006, including section 1, which amends Scottish legislation so as to remove this prohibition.
In Northern Ireland, an order to amend the relevant legislation and remove the prohibition, the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, S.I. 2006 No. 1945 (N.I.14), was made by the Privy Council on 19/07/2006. In accordance with Article 1(3) of the Order, it came into operation two months after the date of promulgation
2) Publication: The judgment of the European Court was published at: (2006) 42 European Human Rights Reports 11 [2005] 3 Family Court Reports 353; [2006] 1 Family Law Reports 3 and The Times on 05/10/2005, as well as being available on Her Majesty’s Court Service website: http://www.hmcourts-service.gov.uk.

The Deputies decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

25594/94 Hashman and Harrup, judgment of 25/11/99 - Grand Chamber, Interim Resolution ResDH(2005)59
42317/98 Hooper, judgment of 16/11/2004, final on 16/02/2005
These cases concern the issuing of “binding-over” orders by courts. The Hashman and Harrup case concerns a binding-over order imposed on the applicants, who had disrupted a fox-hunt, not to breach the peace or behave contra bonos mores in the future, although the behaviour prior to the imposition of the order was not found to have constituted any breach of peace. The European Court considered that the binding-over order, based on the notion of “behaviour contra bonos mores”, was too vague, as it “[could] not be said that what [the applicants] were being bound over not to do must have been apparent to them” (§ 40), and therefore did not comply with the Convention requirement that it be “prescribed by law” (violation of Article 10).
The Hooper case concerns the failure to allow the applicant or his legal representative to address the magistrates' court in 1997 prior to the imposition of a binding over order in respect of which the applicant was later committed to prison for failing to comply with its terms (violation of Articles 6§1 and 6§3(c)). The European Court noted that, as a breach of the order could lead to a committal to prison, the magistrates' court needed to take particular care that imposing the order did not effectively amount to an automatic sentence of imprisonment. It further observed that where deprivation of liberty is at stake, the interests of justice in principle call not only for legal representation but also for that legal representative to be duly heard.
Individual measures: It should be noted that binding-over orders are not criminal convictions. In the Hashman and Harrup case, the applicants do not appear to be suffering any consequences of the violation: the one-year binding-over order having expired in September 1994, they would have been able to recover the sum of 100 GBP for which they were bound over. In the Hooper case, the applicant’s imprisonment lasted approximately two weeks. The Court awarded just satisfaction for non-pecuniary damage suffered through the loss of opportunity to make representations to the magistrates’ court, and the applicant does not appear to be suffering any serious consequences of the violation.
General measures:
1) Interim measures: Following the delivery of the Hashman and Harrup judgment in 1998, and pending a full review of binding over orders, interim measures were taken in the form of guidance issued to prosecutors via the Crown Prosecution Service Casework Bulletin No. 6 of 2000, to the effect that prosecutors should not ask courts to consider binding-over orders unless there is evidence of past conduct which, if repeated, is likely to cause a breach of the peace. The guidance also suggested that courts could be encouraged to ensure that the behaviour to be avoided was made quite clear in the order.
Statistics for 2005 on binding over orders have also been provided. They show that the number of binding over orders with convictions/recognisance and without conviction issued in 2005 declined in comparison to the number issued in 2004.
2) Amendment of the Consolidated Criminal Practice Direction: Following widespread consultation in December 2006 and a request by the President of the Queen’s Bench Division for the advice of the Criminal Procedures Rules Committee in March 2007, Amendment no. 15 to the Consolidated Criminal Practice Direction has been issued (now available on the HCMS website at http://www.hmcourts-service.gov.uk/cms/pds.htm). The relevant amendments apply in the Crown Court and Magistrates’ Courts, which may impose binding over orders.
The Practice Direction as amended specifies that courts should no longer bind an individual over “to be of good behaviour”. Rather than binding an individual over to “keep the peace” in general terms, the court should identify the specific conduct or activity from which the individual should refrain (§ III.31.3 of the Practice Direction). The details of the conduct or activities from which the individual should refrain should moreover be specified by the court in a written order served on all relevant parties (§ III.31.4).
As regards the possibility of making representations to the court before a binding over order is imposed, the Practice Direction stipulates that the court should give the individual who would be subject to the order and the prosecutor the opportunity to make representations, both as to the making of the order and as to its terms (§ III.31.5). When fixing the amount of the recognisance, courts should also have regard to the individual’s financial circumstances and should hear representations from the individual or his or her legal representations regarding finances (§ III.31.11). In addition, before the court exercises a power to commit the individual to custody, the individual should be given the opportunity to see a duty solicitor or another legal representative and be represented in proceedings if the individual so wishes, and public funding should generally be granted to cover representation (§ III.31.13).

3) Publication: In the Hashman and Harrup case, the judgment of the European Court has been published in several law reports (inter alia at (2000) 30 EHRR 241; [2000] Crim LR 185; [1999] EHRLR 342; Times LR, 1/10/98). In the Hooper case, the judgment of the European Court has been published at (2005) 41 EHRR 1.

The Deputies decided to resume consideration of these items at their 1013th meeting (3-5 December 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

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.


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