CM/Del/OJ/DH(2007)992 Section 4.3 PUBLIC 27 April 2007
992nd meeting (DH), 3-4 April 2007
Public information version
SECTION 4 - CASES RAISING SPECIFIC QUESTION
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)
(See Addend um 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 4.3 – SPECIAL PROBLEMS
- 1 case against Germany
74969/01 Görgülü, judgment of 26/02/04, final on 26/05/04, rectified on 24/05/2005
The case concerns the violation in 2001 by the Naumburg Higher Regional Court of the applicant's right to respect for his family life, in proceedings relating to the applicant's custody of and access to his child born out of wedlock in 1999 and living with a foster-family. The European Court considered that the Higher Regional Court's decision not to give custody to the applicant failed to take into consideration the long-term effects on the child of a permanent separation from his biological father. With regard to the suspension of the applicant's visitation rights, for which States have a narrower margin of appreciation, the European Court found that the Higher Regional Court's decision was insufficiently reasoned and rendered any form of family reunion impossible, thus not fulfilling the positive obligation imposed by Article 8 to unite biological father and son (violations of Article 8).
• Summary of the domestic judicial proceedings in this case following the European Court's judgment:
In March 2004, the Amtsgericht Wittenberg, the court of first instance, in decisions which referred to the judgment of the European Court, found in the applicant's favour in proceedings in which he renewed his application for custody and asked for interim measures granting him visitation rights. These decisions were quashed by the 14th Civil Senate (3rd Senate for family law matters) of the Naumburg Higher Regional Court issuing an order not to give the applicant access to his child. In so doing, the Higher Regional Court indicated that it did not consider itself bound by the judgment of the European Court, reasoning that only the German state, as a party to the Convention, can be bound. Thus it did not take into account the findings of the European Court's judgment.
On 14/10/2004, the Federal Constitutional Court, upon a request of the applicant (Verfassungsbeschwerde), quashed the decision of the Naumburg Higher Regional Court of 30/06/2004 as far as the applicant's visitation rights were concerned. On 05/04/2005, the Constitutional Court quashed the decision denying the applicant custody. The court referred both issues back to a different senate of the Naumburg Higher Regional Court for retrial. In its decision on visitation rights, the Federal Constitutional Court explained the relationship between the German Constitution (Grundgesetz) and the European Convention, in particular stating that German courts must observe and apply the Convention in interpreting national law. The full text of the judgment as well as a press release in English can be found on the web site of the Federal Constitutional Court: www.bundesverfassungsgericht.de.
On 2/12/2006, in new domestic proceedings the applicant was granted an interim order giving him the right to see his son every Saturday for two hours in the presence of a specially appointed guardian (Umgangspfleger). This decision was once again quashed by the 14th Senate of the Naumburg Higher Regional Court.
On 28/12/2004 the Federal Constitutional Court quashed the Higher Regional Court's decision of 20/12/2004 and granted temporary visitation rights to the applicant, starting on 8/01/2005, thereby reinstating the order of the District Court (BVerfG, 1 BvR 2790/04 of 28/12/2004). In its summary decision, the Federal Constitutional Court stated that the Naumburg Higher Regional Court had once again failed sufficiently to take into account the judgment of the European Court and that its decision seemed arbitrary in the light of the entire treatment of the case by that Senate. In § 28 of its decision, the Federal Constitutional Court held that “domestic courts must make due allowance for a judgment of the European Court when taking a case up again and when the judgment of the European Court can be acknowledged without violating the law. In doing so, a domestic court must discuss in a coherent manner how the pertinent constitutional right (here Article 6 of the Basic Law) may be interpreted in conformity with the international obligations of the Federal Republic of Germany.” In § 31, the Federal Constitutional Court held that “it is of decisive relevance that in this matter the European Court of Human Rights has already decided that the applicant must have access to his son and that according to the decision of the Federal Constitutional Court of 14/10/2004, this judgment [i.e., that of the European Court] must in principle be followed.” The Federal Constitutional Court furthermore asserted that there is no evidence that contact between the biological father and his son would endanger the child's well-being.
On 12/02/2005 the first contact for three years between the applicant and his son took place in the presence of the specially appointed guardian (Umgangspfleger) and of a senior official from the Regional Administrative Office (Landesverwaltungsamt).
Further visits failed for different reasons. After various steps undertaken by the senior official, the applicant on 28/05/2005 played soccer with his child for 2 hours in the presence of the specially appointed guardian (Umgangspfleger), the ex-officio guardian of the child (Amtsvormund) and the senior official. Again, further visits failed despite efforts by the applicant and by the senior official. According to the applicant’s lawyer, the foster-parents were systematically obstructing the visits of the applicant to his son (for more details on the domestic proceedings, see the annotated agenda for the 982nd meeting, December 2006, Section 4.3).
1) Visitation rights: According to §64 of the European Court's judgment, the applicant should at least have access to his child. Although considerable progress has been made since August 2005 as described below, it is not clear yet whether and to what extent the applicant will be able to exercise his visitation rights as court proceedings are still pending. In August 2005, the senior official appointed a new ex-officio guardian for the child, who has no connection with the youth welfare office of Wittenberg. The new guardian successfully prepared three initial visits of the applicant to his child, taking place on 28/08, 03/09 and 10/09/2005, albeit in the presence of the foster father. Further visits took place on 17/09, 24/09 and 29/09/2005, the foster father handing over the child and leaving. In September 2005, after having heard the child, the District Court took a decision on the merits, increasing the applicant’s visitation rights. This decision was appealed by the applicant as well as by the representative of the child for the proceedings (Verfahrenspfleger). Consequently, the interim order of December 2004 granting the applicant visitation rights remained effective until the Court of Appeal decision of 15/12/2006 (see below 3).
In the meantime, the parties concerned arranged for bi-weekly visits of 4 hours instead of weekly 2-hour ones. Between October 2005 and March 2006, 9 such 4-hour visits took place. Further visits of up to 7 hours to compensate for cancellations, some of them in the applicant’s family home, took place until 18/06/2006. In this context the respondent state informed the Committee of Ministers at the 966th meeting (June 2006) that the ex-officio guardian has agreed to the applicant’s request to grant him regular 7-hour visits every second Saturday. A further extension, as well as an over-night stay, are planned. The applicant alleges that from 18/06 until 19/08/2006 when a visit took place, the foster parents boycotted the bi-weekly 7 hour visits scheduled by the ex-officio guardian. Furthermore, the applicant, invoking the reasoning of the European Court’s judgment as well as the decisions of the Federal Constitutional Court, claims that the authorities have not yet fulfilled their obligation to make a family reunion possible as the number of visits is too small and the time given too scarce (a total of 66 hours until 2/06/2006, since the Court’s judgment which became final in May 2004) to develop a father-son relationship.
Regarding the pending adoption proceedings, the applicant informed the Secretariat that the ex-officio guardian of the child withdrew the 2001 application for a court order replacing the missing consent of the applicant to the adoption by the foster parents in July 2006.
• A court decision formally to end the adoption proceedings is awaited.
2) Interruption of regular visits in summer 2006: At the 976th meeting (October 2006), the respondent state informed the Committee of Ministers that the applicant saw his child on 2/09/2006 when the child stayed overnight at his house. One of the visits in summer failed because of misunderstandings between the ex-officio guardian and the foster parents and the rest of the visits including those scheduled after 2/09/2006 because the child, according to the foster-parents, does not want to visit his father alone. In order to make regular visits possible again and compensate for future cancellations, the following measures are planned: pending the consent of the applicant’s lawyer, such Sundays following a scheduled Saturday visit have to be kept free in case the Saturday visit cannot take place and to enable the child to stay overnight. The ex-officio guardian shall be present when the child is handed over to the applicant. Should visits fail despite these measures, the authorities are considering taking the child out of the foster family during holidays provided this will not harm the child. Furthermore, the government agent has scheduled a meeting for 2/11/2006 with the local authorities to discuss the matter. The respondent state stressed that the child is in a deep loyalty conflict between his foster-family and his father and that therefore any measures must find their limits insofar as they could endanger the child’s wellbeing.
At the 982nd meeting (December 2006), the respondent state provided information regarding measures taken by the local authorities to overcome the obstruction of visits by the foster parents and informed the Committee that the child had stayed overnight at the applicant’s home on 25/11/2006.
3) Recent development: New domestic court decision granting extended visitation rights to the applicant: On 15/12/2006 the Naumburg Court of Appeal passed a decision granting the applicant the right to visit his son every fortnight for 7 hours until February 2007, thereafter increased to bi-monthly overnight stays from 11.00 on Saturdays to 15.00 on Sundays. Furthermore, it granted the applicant the right to spend the first half of school vacations exceeding two weeks with his son. In its decision, the domestic court explicitly acknowledged the violations found by the European Court in this case and left no doubt that the applicant has a visitation right. The applicant as well as the representative for the child in the court proceedings both launched individual complaints before the Federal Constitutional Court, which were both rejected in February 2007.
According to information placed by the applicant on the internet (http://www.vafk.de/) some 7 hour visits with his son have taken place after the December judgment, as well as an overnight stay on 3/03/2007. According to information provided by the respondent state, a visit in February 2007 failed due to the applicant’s absence.
4) On the custody issue, on 05/04/2005 the Federal Constitutional Court quashed the decision of the Naumburg Higher Regional Court and referred the case back for thorough reconsideration by a different senate which is now responsible for all decisions concerning this case. This senate held a first hearing in September 2005 at which the child was heard and a second hearing in December 2005. A third hearing took place on 28/02/2006 at which an expert reported orally on visitation and custody issues relating to the well-being of the child. The respondent state informed the Committee of Ministers, that another hearing with the expert took place on 09/05/2005 and that further hearings may be expected in particular because the applicant raised several concerns about the objectivity of the expert. In February 2006, the respondent state informed the Secretariat that this expert will provide psychological support to the child in the course of the preparation of her opinion. Any other psychological support of the child has therefore been stayed until the expert opinion is delivered. At the 976th meeting (October 2006), the respondent state informed the Committee that the expert had delivered a written opinion on 11/06/2006 and that the domestic court heard the child once more on 21/06/2006. Further hearings with the parties took place on 17/07/2006 and on 25/09/2006 after dismissal of a claim for bias raised by the applicant against the judges. A court decision expected for October 2006 was passed on 15 December 2006, rejecting the applicant’s request for sole custody of his son. The applicant launched a complaint with the Naumburg Court of Appeal as well as an appeal on points of law with the Federal Civil Court.
• Information is awaited on the further development, in particular on the regular implementation of the applicant’s visitation rights as well as information on the progress of the domestic court proceedings regarding the custody issue.
General measures: The judgment of the European Court has been distributed to the courts and justice authorities directly concerned. It was published in Neue Juristische Wochenschrift (NJW) 2004, p. 3397 - 3401 and in Europäische Grundrechte Zeitschrift (EuGRZ) 2004, p. 700 - 706. Furthermore, 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/).
1. took note of the recent progress following the decision of the Naumburg Court of Appeal of 15 December 2006 (now final) explicitly acknowledging the violations found by the European Court and granting the applicant extended visitation rights;
2. decided to resume consideration of this item at the latest at their 1007th meeting (15-17 October 2007) (DH), in the light of further information to be provided concerning individual measures, in particular the full implementation of this decision with a view to ensuring that the applicant may regularly visit his child to build up a genuine father-son relationship.
- 1 case against Italy
33286/96 Dorigo Paolo, Interim Resolutions DH(99)258 du 15/04/99 (finding of a violation), ResDH(2002)30, ResDH(2004)13 and ResDH(2005)85 (adoption of individual measures)
The case concerns the unfairness of certain criminal proceedings as a result of which the applicant was sentenced in 1994 to more than thirteen years' imprisonment for, among other things, his alleged involvement in a terrorist bomb attack on a NATO military base in 1993.
His conviction was based exclusively on statements made before the trial by three “repented” co-accused, without the applicant having been allowed to examine these statements or to have them examined, in conformity with the law in force at the relevant time (violation of Article 6§1 taken together with Article 6§3d).
1) Long-awaited measures: The Committee of Ministers has been insisting on Italy’s obligation to take individual measures since 1999. The Committee has in particular taken account of the serious negative consequences of the violation for the applicant, consequences which could not have been erased by the payment of just satisfaction which covered only non-pecuniary damage sustained up until 1999. Furthermore the violation found of the defence rights throws serious doubt on the safety of the applicant’s conviction.
2) Action by the organs of the Council of Europe
• Committee of Ministers: With a view to accelerating the execution of this judgment, in 2002-2005 the Committee has adopted several interim resolutions (see in particular ResDH(2002)30 of 19/02/2002, ResDH(2004)13 of 10/02/2004 and ResDH(2005)85 of 12/10/2005). In its most recent resolution in 2005 the Committee firmly recalled the obligation of all authorities concerned to ensure the adoption of appropriate measures in the applicant’s favour and called for legislation making it possible to reopen the case.
• Parliamentary Assembly : The Assembly has acted in a number of ways: see in particular Recommendation 1684(2004) and Resolution 1411 (2004) of 23/11/2004 and oral questions No. 14 by Mr Jurgens of 5/10/2004, No. 15 by Ms Bemelmans-Videc of 26/01/05 and No. 13 by Mr Lloyd of 22/06/2005.
3) Measures considered by the Committee of Ministers:
During the years the Committee of Ministers has considered the following solutions:
- Presidential pardon was raised before the Committee in July 2004 (see Addendum 4 to the annotated agenda prepared for the 948th meeting (November 2005)). The Italian delegation indicated, however, that there appeared little chance that the applicant might rapidly obtain a pardon. It thus appeared to be a pointless remedy, even if coupled with adequate complementary measures (see CM/Inf/DH(2005)13). Thus, this option has not been re-considered by the Deputies.
- Reopening the unfair proceedings: Interim resolutions ResDH(2002)30 of 19/02/2002, ResDH(2004)13 of 10/02/2004 and ResDH(2005)85 of 12/10/2005 all stress that reopening the proceedings at issue remains the best means of ensuring restitution in integrum in this case. A number of bills to introduce reopening have been presented and debated by both Chambers of the Italian Parliament; one of these was approved by one Chamber but not by the other.
Recently, at the 960th and 966th meetings (March and July 2006) the Committee, bearing in mind the difficulties encountered in adopting effective measures, reiterated its appeals to the Italian authorities rapidly to erase the consequences of the violation either by legislating or by adapting case-law.
4) Measures taken in 2006: Two recent court proceedings delivered positive results:
• Revision proceedings brought by the applicant before the Bologna Appeal Court against his conviction:
On 13/03/2006 this court questioned the constitutional legitimacy of domestic law insofar as it did not allow reopening of proceedings on the basis of the finding of a violation by the European Court. Pending a decision by the Constitutional Court, the Appeal Court decided to suspend the application of Mr Dorigo’s sentence and he was provisionally released in March 2006.
• The action brought before the Assize Court by the Udine Public Prosecutor: The Public prosecutor submitted to the Assize Court that the applicant’s detention was unlawful as a result fot eh findings of the European Court. In January 2006 the Udine Assizes dismissed this application but the Prosecutor appealed. On 1/12/2006 the Court of Cassation set aside the assize judgment without referring it back, and ordered the applicant’s unconditional release.
By this decision, the Court of Cassation confirmed that the principle of the direct effect of the Convention is an established fact in the Italian judicial system. It emphasised that it is necessary and urgent to provide a mechanism for reopening domestic proceedings by law. As regards in absentia judgments, the possibility already exists.
The Court of Cassation also underlined that the Constitutional Court had not yet replied to the question raised by the Bologna Appeal Court, creating a legal vacuum which has yet to be filled. This being the case, and taking account of Italy’s prolonged inaction despite numerous interim resolutions by the Committee of Ministers and the persistent violations of Article 46 of the Convention, the Court of Cassation decided to recognise the unlawful character of the applicant’s detention, resulting from an unfair judicial proceedings.
• Assessment of measures taken The individual measures taken, albeit tardily, appear to respond positively to the Committee of Ministers' resolutions. The judgments of the Bologna Appeal Court and the Court of Cassation have finally given effect to the committee's repeated requests to erase, as far as possible, the consequences of the violation either by legislating of by developing jurisprudence.
The same decision acknowledged the impossibility of reopening proceedings underlined the urgent need for legislative intervention but also affirmed the need to give direct effect to the Convention. The court thus did everything in its power, in finding that the applicant's detention was illegal under Articles 6 and 5.2 of the Convention and ordering his unconditional release. Though long-awaited, this decision represents a significant effort in Italian case-law in pursuit of an appropriate solution to this case by affirming in clear and specific terms the principle of immediate application of the Convention. It will now be for the appropriate Italian authorities to fulfil all the implications for Italian law on the basis of these findings, both for the Dorigo case and in general.
In addition, it is to be noted that the revision proceedings filed by the applicant are still pending and a decision from the Constitutional court is still expected. This decision should be delivered soon.
5) General measures taken: adopted (see Resolution ResDH(2005)86 in the case of Lucà against Italy).
The Deputies decided to resume consideration of this item at their 997th meeting (5-6 June 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat.
- 1 case against Moldova and the Russian Federation
48787/99 Ilaşcu and others, judgment of 08/07/2004, Grand Chamber, Interim Resolutions ResDH(2005)42, ResDH(2005)84, ResDH(2006)11 and ResDH(2006)26
CM/Inf/DH(2006)17 revised 27, CM/Inf/DH(2006)52 revised
The case concerns violations committed against the applicants in the “Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova which declared its independence in 1991 but is not recognised by the international community, after they had been handed over to the “authorities” of the MRT by the former 14th army in 1992. Two applicants, Mr Ivanţoc and Mr Popa2 (formerly Petrov-Popa), are still imprisoned.
The Court’s findings
The Court concluded that the applicants are within the jurisdiction3 of the Republic of Moldova for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of, committed in the territory of the “MRT”, over which it exercises no effective authority, is to be assessed in the light of its positive obligations under the Convention (§ 335). Not having been informed of any new steps by the Moldovan authorities after Mr. Ilaşcu’s release in May 2001 aimed at obtaining the release of the applicants still detained, the Court concluded that Moldova’s responsibility could be engaged, because it was within the power of the Moldovan government to take measures to secure the applicants’ rights under the Convention (§ 351-352).
Furthermore, the Court held that the actions of Russian soldiers with regard to the applicants, including their transfer to the charge of the separatist regime in the context of the Russian authorities’ collaboration with this illegal regime, were such as to engage the responsibility of the Russian Federation (§ 385). In view of the fact that the Russian Federation’s policy of support for and collaboration with the regime has continued beyond 5 May 1998, the date on which the Russian Federation ratified the Convention, and that since that date the Russian Federation has made no attempt to put an end to the applicants’ situation brought about by its agents, the Court concluded that the applicants also come within its “jurisdiction” for the purposes of Article 1 of the Convention, and that its responsibility is engaged (§ 393-394).
The Court found several violations of the Convention. In particular, taking into account its conclusions as to the respondent states’ responsibility, the Court said that there has been and continues to be a violation of Article 5 of the Convention by Moldova since May 2001 as regards the applicants still detained; that there was a violation of Article 5 of the Convention by the Russian Federation as regards Mr Ilaşcu until May 2001, and that there has been and continues to be a violation of that provision as regards the applicants still detained.
Accordingly, the Court found unanimously that “the respondent states [were] to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release” (§ 22 of the operative part of the judgment).
Moreover, it emphasised the urgency of this measure in the following terms (§ 490): “any continuation of the unlawful and arbitrary detention of the…applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent states’ obligation under Article 46§1 of the Convention to abide by the Court’s judgment.”
Payment of just satisfaction and publication of the judgment
Just satisfaction has been paid by both respondent states4.
The full text of the judgment has been published by the Moldovan authorities; a summary of the judgment has also been published in the Bulletin of the European Court of Human Rights (Russian edition)5. However, the Committee has not been informed of the publication of the full text of the judgment in Russian, despite the case’s importance and Russia’s practice with regard to other important judgments.
Measures taken by the Committee of Ministers to ensure the execution of the judgment as regards the continuation of the unlawful and arbitrary detention of Mr Ivanţoc and Mr Popa
In view of the continuation of the unlawful and arbitrary detention of two of the applicants, the Committee of Ministers has undertaken several steps with a view to ensuring the execution of the judgment, and in particular adopted four interim resolutions:
- Interim Resolution ResDH(2005)42, adopted on 22 April 2005
- Interim Resolution ResDH(2005)84, adopted on 13 July 2005
- Interim Resolution ResDH(2006)11, adopted on 1 March 2006
- Interim Resolution ResDH(2006)26, adopted on 10 May 2006
In the latest of these Resolutions, the Committee of Ministers, “regret(s) profoundly that the authorities of the Russian Federation have not actively pursued all effective avenues to comply with the Court’s judgment, despite the Committee’s successive demands to this effect”. In view of this situation, in this Resolution, the Committee of Ministers:
“ - Encourages the authorities of the Republic of Moldova to continue their efforts towards putting an end to the arbitrary detention of the applicants still imprisoned and securing their immediate release;
- Declares the Committee’s resolve to ensure, with all means available to the Organisation, the compliance by the Russian Federation with its obligations under this judgment;
- Calls upon the authorities of the member states to take such action as they deem appropriate to this end.”
Follow-up by the respondent states to Interim Resolution ResDH(2006)26
Following this Resolution, the Moldovan authorities indicated (at each of the seventeen examinations of the case since the adoption of the Resolution) that they were pursuing their efforts towards the release of the applicants still detained.
As to the Russian authorities, they reiterated (five times since the adoption of the Resolution) their initial position concerning the execution of this judgment, namely that in order not to interfere in internal affairs of another state, they could do no more than pay the just satisfaction allocated by the Court, which has already been done.
During the last examination of this case (988th meeting , 21 February 2007), the Permanent Representative of Germany made a statement on behalf of the European Union with the support of the countries which are candidates for accession to the Union (Croatia, “the former Yugoslav Republic of Macedonia” and Turkey), the countries of the stabilisation and association process and potential candidates (Albania, Bosnia and Herzegovina and Serbia), Iceland, Liechtenstein, Norway and Switzerland, members of the European Free Trade Agreement (EFTA) and of the European Economic Area (EEA) as well as Ukraine, Georgia and Azerbaijan.
These states recalled the necessity of executing this judgment, which has already been the subject of four interim resolutions the last of which (ResDH(2006)26, adopted on 10 May 2006) was brought to the attention of the UN and the OSCE. They also recalled that the Court had held that the respondent states were to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release and that any continuation of the unlawful and arbitrary detention of the applicants would necessarily entail a breach of the respondent states’ obligation under Article 46§1 of the Convention to abide by the Court’s judgment.
These states added that when acceding to the European Convention on Human Rights, contracting states undertake to abide by the final judgments of the Court in any case to which they are parties. They reject any statement implying that the Court’s judgments are politically motivated.
They declared that the non-execution of this judgment undermines the credibility of the Council of Europe and of the European Court of Human Rights. These states therefore urged the parties concerned, and in particular the Russian Federation, to take all possible measures to bring about the immediate release of the applicants.
The whole of the recent positions of the delegations and of the Secretariat is reflected in document CM/Inf/DH(2006)17 rev25.
The Deputies decided to resume consideration of the measures taken towards the execution of the Court’s judgment at their 993rd meeting (11 April 2007).
- 5 cases against the Russian Federation
57950/00 Isayeva, judgment of 24/02/2005, final on 06/07/2005
57947/00+ Isayeva, Yusupova and Bazayeva, judgment of 24/02/2005, final on 06/07/2005
57942/00+ Khashiyev and Akayeva, judgment of 24/02/2005, final on 06/07/2005, rectified on 01/09/2005
69481/01 Bazorkina, judgment of 27/07/2006, final on 11/12/20066
These cases concern the death of applicants' relatives during Russian military operations in Chechnya in 1999 and 2000. The violations found by the European Court are the following:
- the state's responsibility for the death of the applicants’ relatives, as the Court found it established that they were killed by military servicemen during a military operation in Grozny (violation of Article 2 in the Khashiyev and Akayeva case);
- the failure to prepare and execute military operations with the requisite care for the lives of the civilians who were killed during air strikes conducted by the Russian air forces in the countryside not far from the Chechen-Ingush administrative border (violations of Article 2 in the Isayeva and Isayeva, Yusupova and Bazayeva cases);
- the state's responsibility for the presumed death of the applicant's son following his detention, as the European Court found that his whereabouts have been unknown for more than six years and the authorities have not justified the use of lethal force by their agents (violation of Article 2 in the Bazorkina case);
- failure to carry out an effective criminal investigation into the circumstances surrounding the deaths of the applicants' relatives, as well as into the circumstances of the abovementioned military operations and lack of an effective remedy in this respect (procedural violations of Article 2 and violations of Article 13 in all the cases);
- failure to conduct a thorough and effective investigation into allegations of torture (violations of Article 3 in the Khashiyev and Akayeva case);
- the inhuman treatment suffered by the applicant due to the attitude of various investigating authorities, in particular the fact that the criminal investigation of her son's disappearance only began 1½ years after the events (violation of Article 3 in the Bazorkina case);
- the state's responsibility for the unacknowledged detention of the applicant's son in the complete absence of the safeguards enshrined in Article 5 (violation of Article 5 in the Bazorkina case);
- unjustified destruction of one applicant's property as a result the abovementioned air strike by the military forces (violation of Article 1 of Protocol No. 1 in the Isayeva, Yusupova and Bazayeva case).
Individual measures: During the first examination of the present cases at the 940th meeting (October 2005), the Russian authorities were invited to provide information on the measures envisaged or being taken to remedy the shortcomings in the investigations which were identified by the European Court's judgments, and to ensure the availability of effective domestic remedies.
• Applicants' submissions: On 04/10/2005, the applicants provided the Secretariat, through their representatives, with detailed submissions claiming a number of individual measures to be adopted by the authorities. The applicants' submissions were transmitted for comments to the Russian authorities on 07/10/2005.
For an extensive description of the situation in each case, see document CM/Inf/DH(2006)32 containing background information. In summary, the current situation in each of these cases is as follows:
1) Cases of Isayeva, Yusupova and Bazaeva and Issayeva: On 14/11/2005, pursuant to Articles 214 and 413 of the Code of Criminal Procedure and considering Article 46 of the Convention, together with the Recommendation of the Committee of Ministers to member states Rec(2000)2 of 19/01/2000 on the re-examination or re-opening of certain cases at domestic level, the Chief Military Prosecutor's office ordered the Military Prosecutor of the Unified Army Group to conduct new investigations under his close supervision.
The government further informed the Secretariat that the Military Prosecutor had taken procedural steps (e.g. conducting operational tactical expert examinations) no least to check the proportionality of the lethal force used during the military operation near the villages of Shaami-Yurt and Katyr-Yurt and to determine whether measures had been taken to ensure the safety of civilians.
2) Cases of Khashiev and Akayeva: On 25/01/2006, the investigations in these cases were also reopened and assigned to the Prosecutor's office of the Starypromylovsky District of the City of Grozny (Chechen Republic), under the supervision of General Prosecutor's office. According to the latest information received, 84 other persons affected by the events at issue were granted victim status in this investigation.
• Information is awaited on the progress as well as on the results of the new investigations.
3) Case of Bazorkina: It results from the judgment that a number of important investigatory steps were never taken by the authorities during the investigation (e.g. § 122 of the judgment).
• Information in this respect is awaited.
General measures: Information submitted to date by the Russian authorities and other interested parties concerning the measures adopted and the outstanding questions appears in document CM/Inf/DH(2006)32, along with the Secretariat's evaluation of that information.
1) Progress achieved so far: At the 960th meeting (March 2006), the Deputies noted with satisfaction that the Russian authorities had begun to implement general measures to prevent new, similar violations, in particular by:
- widely disseminating the judgments of the European Court to all competent authorities concerned and taking comprehensive educational measures at all levels including within the Army,
- taking stock of the efficiency of criminal prosecution of abuses by military personnel in the Chechen Republic,
- starting legislative procedures to ensure compensation for ineffective investigations into the facts of violations of human rights committed in the course of counter-terrorist operations.
The Russian authorities provided with four laws governing the action of the security forces, including the new Law “On Counterterrorism” of 6/03/2006 (replacing the old Law on Suppression of Terrorism of 25/07/1998 in force at the time of the events).
2) Main outstanding issues (for more details see CM/Inf/DH(2006)32):
a) Improvement of legal and regulatory framework for the action of the security forces: Clarifications have been requested on the present regulatory (by-law) framework of both the army in the context of similar security operations, and the security forces presently in charge in Chechnya, including instructions governing the use of lethal force in conflict areas.
b) Awareness raising and training: Additional details would be helpful as regards the scope and nature of the courses delivered, the time allocated to them and evaluation of their practical effectiveness. Information on specific measures taken within the Air Force would be of particular importance, given the latter's involvement in the incidents impugned by the Court's judgments.
c) Effective remedies in cases of abuses: Further statistics on criminal cases brought against officials as well as responses to the other issues raised in the Memorandum would be appreciated.
As regards the draft law setting up a specific procedure to allow victims to obtain compensation for ineffective investigations, the Russian authorities indicated on 7/11/2006 that this draft law was considered inappropriate, given the fact that Russian law already contains legal mechanisms allowing victims to obtain compensation in such cases.
The authorities have in particular relied on the Federal Law “On appealing to court against actions and decisions violating rights and freedoms of citizens” and the Federal Law “On the order of examination of applications of citizens of the Russian Federation”, which entered into force on 2/10/2006.
The effectiveness of these mechanisms remains to be demonstrated.
3) The Committee of Ministers' actions
At the 982nd meeting (December 2006) the Committee in particular invited the Russian authorities to submit additional information on all questions raised by the judgments, as pointed out in the Memorandum CM/Inf/DH(2006)32. This information is expected for the present meeting.
At the 987th meeting (February 2007) the Committee deplored the absence of any reported progress in the new investigations and noted with regret that no information was presented on other different questions raised by the judgments.
The Memorandum (CM/Inf/DH(2006)32) was declassified at the 976th meeting (October 2006). An up-dated version of the Memorandum will be prepared upon receipt of information from the authorities and will be issued for the present meeting.
1. deplored anew the fact that no new information had been provided by the Russian authorities on the progress and outcome of the new investigations and that information has still not been presented on all other questions raised by the judgments, as pointed out in Memorandum CM/Inf/DH(2006)32 revised;
2. consequently urged the Russian authorities rapidly to submit all requested information an to envisage possible solutions to the issues raised by the judgments, if necessary through consultations between the Secretariat and the national authorities concerned;
3. decided to resume consideration of these cases at their 997 meeting (5-6 June 2007) (DH), in the light of Memorandum CM/Inf/DH(2006)32 revised and further information to be provided concerning individual and general measures.
77617/01 Mikheyev, judgment of 26/01/2006, final on 26/04/2006
The case concerns torture inflicted on the applicant while in custody at the Leninskiy police station on 19/09/1998 by several police officers, with the aim of extracting a confession that he had committed the offences of which he was suspected and which proved to be nonexistent. As a result of severe physical and mental suffering sustained, the applicant attempted suicide resulting in a general and permanent physical disability (violation of Article 3).
The European Court found that the domestic investigation into the applicant’s allegations of torture had been closed and then re-opened more than 15 times during 7 years and had very serious shortcomings, such as omissions to question witnesses, delay in carrying out a number of important procedural steps (forensic examinations, confrontation of the police officers involved with the applicant, etc), lack of independence of the officials responsible for the investigation from those allegedly involved in the ill-treatment. On 30/11/2005 when the Leninskiy District Court of Nizhniy Novgorod found two police officers guilty of abuse of official powers associated with the use of violence and sentenced them to four years’ imprisonment with a subsequent three years’ prohibition on serving in law-enforcement agencies. However, the domestic court did not examine the abovementioned flaws in the investigation and no redress was provided to the applicant. Accordingly the European Court found that the investigation had not been adequate or sufficiently effective (procedural violation of Article 3) and that the applicant was deprived of an effective remedy, including a claim of compensation (violation of Article 13).
• Information provided by the Russian authorities (16/11/2006): The decision of the Leninskiy District Court of Nizhniy Novgorod was upheld by the Criminal Chamber of the Nizhniy Novgorod Regional Court on 30/11/2005 and became final on 27/01/2006. The subsequent appeals lodged by the two convicted police officers were rejected by the Supreme Court.
The Deputy Public prosecutor of the Nizhniy Novgorod Region, who was allegedly involved in the events at issue (§ 68 of the judgment), was discharged on 1/04/2002 and died on 20/04/2002.
• Applicant's observations: On 13/10/2006, the applicant's representative submitted his observations mostly concerning further pecuniary compensation because of the applicant’s disability. These observations have been transmitted to the Russian authorities for comments.
• Information is awaited on the existing possibilities for additional compensation under Russian law.
General measures: It appears that the judgment requires important general measures to prevent new, similar violations. When adopting these measures, the Russian authorities may wish to take into account the comprehensive measures taken and/or envisaged in other countries to prevent similar violations by the security forces (see, in particular, Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43 concerning the action of the security forces in Turkey, Interim Resolution ResDH(2005)20 concerning the action of the security forces in Northern Ireland and Final Resolutions ResDH(94)34 in the case Tomasi against France and ResDH(2006)13 in the cases Egmez and Denizci against Cyprus).
In response to the questions raised in the Annotated agenda of the 976th meeting (October 2006), the Russian authorities provided extensive information which is being assessed by the Secretariat with a view to possibly preparing a memorandum. At the outset it appears that some further information and clarification would be necessary (see below).
1) Procedural safeguards in police custody: It appears that the violations were due to the lack of certain procedural safeguards in the Russian legislation at the material time. The new Code of Criminal Procedure (the “CCP”) entered into force in July 2002.
a) Access to a lawyer:
According to Articles 46 §4 (3) (“Suspect”), 47 §4 (9) (“Accused”), 53 §1 (1) (“Powers of defence lawyer”) and 92 §4 (“Procedure for apprehension of a suspect”) of the CCP and Article 18 §1 of the Federal Law of 15/07/1995 “On Pre-Trial Detention of Persons Suspected of and Accused of Having Committed Criminal Offences”, suspects and accused have access to a lawyer as from the moment of their actual apprehension. Meetings are to be in private and in confidence without limitation as to their number and duration, except in cases provided for by the CCP. This right is also provided by the Internal Regulations of IVS adopted by the Order of the Ministry of the Interior on 22/11/2005 and SIZO adopted by the Order of the Ministry of Justice on 14/10/2005.
• Clarifications are awaited on cases in which, according to the CCP, access to a lawyer may be limited and on the extent of this limitation. Information is also necessary on the possibilities to have access to a lawyer for persons against whom criminal proceedings have not yet been opened and who are brought to the police station for other reasons, i.e. operative talk, administrative arrest, etc.
b) Right to inform a person and his/her right to visit:
According to Article 46 §3 CCP, the investigating authority shall notify the relatives of the person apprehended only if this person is apprehended in the circumstances set out in Articles 91 and 92 CCP (i.e. when the person has been caught at the crime scene or clearly identified by witnesses). This notification must be made within 12 hours unless the secrecy of investigation requires its postponement and the person detained is over 18 (Article 96 CCP).
According to Article 18 §3 of the Federal Law “On Pre-Trial Detention of Persons Suspected of and Accused of Having Committed Criminal Offences”, suspects and accused are entitled to no more than 2 visits a month by their relatives or other persons, by written permission of the investigating authority. These visits shall not exceed 3 hours each.
• Information is awaited on whether the relatives of a person deprived of his/her liberty may request a medical examination in case of alleged ill-treatment.
• Information would also be useful on whether the same rules of notification of the relatives are applicable if a person is apprehended in circumstances other than those provided by Article 91 CCP.
c) Medical examination:
The rules regarding medical examination of persons deprived of their liberty depend on whether they are detained in IVS or in SIZO. In addition, the Russian authorities provided a Regulation regarding detention of persons arrested for having committed administrative offences, which also contains rules on medical examination. This document will be examined more in detail in the Secretariat memorandum.
- IVS: A medical examination takes place when a person is brought to IVS, when he/she is released and
when he/she is transferred somewhere else.
This examination is carried out by a doctor or by a police officer having appropriate training (§124 of the Internal regulation of 22/11/2005). In addition, if persons detained have health trouble or in case of injuries, they should be immediately examined by a member of medical staff of IVS or an outside doctor. The results are recorded according to an established procedure and made available to detainees and their lawyers (§ 125, idem). Each incidence of injuries gives rise to a verification with a view to establishing whether criminal proceedings should be opened or not (§ 128, idem).
• Additional information is awaited in relation to this verification, i.e. the authorities responsible, public scrutiny, the possibility for the victim to challenge the decision not to open criminal proceedings, etc.
- SIZO: A medical examination takes place within 3 days as from the transfer of a person by a doctor from the SIZO’s medical unit (§ 16 and § 126 of the Internal Regulation of 14/10/2005). Its results are registered on the medical card of the person concerned. Cases of alleged ill-treatment are reflected in a special act and give rise to verification by an operational department of the SIZO and may be transferred to a prosecutor if there is room for criminal proceedings.
• Information is awaited on the same points raised in relation to the IVS and on the detainees’ right to ask for an independent medical examination by a doctor of his/her choice to be carried out at different stages of his/her deprivation of liberty.
d) Video recording of questioning:
According to Article 189§4 (“General rules of interrogation”) CCP, a person interrogated by an investigating judge may ask to have his/her interrogation video-taped.
• Information is awaited on whether this rule is also applicable to questioning by other authorities, i.e. police, prosecutors, etc. In addition, clarification would be useful on the circumstances in which such video recordings might be available to the defence.
e) Prosecutors’ duties in respect of persons in custody:
According to the Russian authorities, public prosecutors must visit pre-trial detention facilities every day. These visits give rise to a special procedural act or record in a special register held in each facility. In case of complaints against police officers, the prosecutor must carry out a verification (Articles 144-145 CCP) and take a decision on the complaint within 3 days.
In addition, Order of the Prosecutor General of the Russian Federation No. 27 of 5/08/2003 (“On organisation of prosecutors’ supervision of compliance with laws in pre-trial detention facilities”) as amended by the Order of 4/02/2004, compels prosecutors to visit pre-trial detention facilities on a monthly basis and establish a special report.
• Examples of these reports would be helpful.
2) The effectiveness of investigation:
It results from the judgment that the shortcomings of the investigation pointed out by the Court were mostly due to the lack of independence of the investigating authorities from the officials allegedly involved in the ill-treatment.
- Initial supervision of lawfulness during the investigation:
According to Chapter 3 of the Federal Law “On the Prokatura of the Russian Federation”, prosecutors, and in particular the Department of supervision of the compliance with laws by organs carrying out operational activities, inquest and preliminary investigation, supervise the lawfulness of actions of all competent authorities during the investigation process.
- Examination of complaints of alleged ill-treatment:
The authorities indicate that according to Article 151§1в) CPP, prosecutors have jurisdiction to investigate all cases of ill-treatment allegedly inflicted by police officers. Moreover, Article 22 of the Federal Law “On Prokatura of the Russian Federation” and Article 144 CCP provide that prosecutors consider all complaints lodged against investigating authorities with a view to determining whether criminal proceedings should be opened. Decisions not to open criminal proceedings may be challenged by the person concerned (Article 125 CCP).
• In view of the above, clarification would be useful on the territorial, institutional and practical independence of prosecutors in charge of examination of complaints regarding ill-treatment from those who ensure the initial supervision of the investigation.
It would appear that according to the Federal Law “On police”, the police officer under investigation is not suspended. Confirmation in this respect would be useful.
More generally, it remains unclear what are the investigation powers of prosecutors vis-à-vis the police and what procedural and practical steps are taken during the verification carried out in cases of alleged ill-treatment. More information is expected in this respect.
3) Awareness raising and training:
- Police officers.
By letter of the Deputy Head of the Main Directorate of the Interior for the Region of Nizhniy Novgorod of 9/08/2006 to the heads of territorial units a new item “Prevention of cases of ill-treatment of persons in custody” including the compulsory study of the present judgment was added to the programme of in-service training of police officers. The letter also gave instruction to strengthen the supervision of compliance with the detainees’ rights, to verify complaints of ill-treatment without delay and to open disciplinary proceedings against those responsible.
The judgment has been included in the programme of in-service training of prosecutors.
• Additional details would be helpful as regards the scope and nature of the courses delivered, the time allocated to them and evaluation of their practical effectiveness. Since the letter mentioned above established a time-limit for implementation of these measures, i.e. 08/09/2006, information is awaited in this respect, in particular on
- concrete measures taken to strengthen supervision of compliance by police officers with detainees’ rights, particularly on the authorities responsible;
- the procedure for verifying alleged cases of ill-treatment;
- disciplinary sanctions which were or might be taken and possible statistics in this respect.
4) Compensation of victims:
The government indicated before the European Court that Russian law provided for the strict liability of the state, i.e. notwithstanding the identification and/or conviction of the perpetrators, in relation to unlawful actions of investigating authorities, prosecutors and courts (Article 1070 of the Civil Code, CC).
In the meantime, the authorities indicated that compensation for damage on the basis of Article 1070 CC would be possible only once the unlawful character of actions of the state agents has been established in the framework of criminal or administrative proceedings. Another possibility to obtain compensation pending verification or proceedings regarding the ill-treatment is provided by Articles 1069 and 1070 CC.
• More details would be useful on the mechanism of Article 1069 CC with relevant examples of the case-law.
5) Dissemination and publication of the judgment of the European Court
By letter of 17/10/2006 of the Head of the Main Directorate of supervision of criminal and operational activities of the Prosecutor General’s office, the judgment was disseminated to all regional prosecutors in charge for them to discuss the findings of the European Court with their subordinates.
The judgment has been published in a Russian edition of the Bulletin of the European Court of Human Rights, No. 6, 2006.
The Deputies decided to resume consideration of this item at the latest at their 1007th meeting (15-17 October 2007) (DH)
1. in the light of information to be provided by the Russian authorities as regards the existing possibilities for the applicant to obtain further compensation under Russian law on account of his permanent disability as a result of torture in police custody;
2. in the light of further information and clarification on general measures to be provided by the authorities and of a memorandum to be prepared by the Secretariat.
- 3 cases against Turkey
25781/94 Cyprus against Turkey, judgment of 10/05/01 – Grand Chamber
CM/Inf/DH(2007)10rev.2 Corr., CM/Inf/DH(2007)10/1, CM/Inf/DH(2007)10/3rev., CM/Inf/DH(2007)10/5 (to be issued)
Interim Resolutions ResDH(2005)44
The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. The European Court held that the matters complained of by Cyprus in its application entailed Turkey's responsibility under the European Convention on Human Rights. In its judgment, it held that there had been 14 violations of the Convention:
Greek-Cypriot missing persons and their relatives
- Lack of an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons (continuing violation of Articles 2 and 5);
- Silence of the Turkish authorities in the face of the real concerns of the relatives attaining a level of severity which could only be categorised as inhuman treatment (continuing violation of Article 3);
Home and property of displaced persons
- Refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus (continuing violation of Article 8);
- Refusal to allow them access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights (continuing violation of Article 1 of Protocol No. 1);
- Failure to provide them with any remedies to contest interferences with their rights under Article 8 and Article 1 of Protocol No. 1 (violation of Article 13).
Living conditions of Greek Cypriots in Karpas region of northern Cyprus
- Restrictions on freedom of movement of Greek Cypriots living in northern Cyprus which limited access to places of worship and participation in other aspects of religious life (violation of Article 9);
- Excessive measures of censorship of school-books destined for use in the primary school for Greek Cypriots living in northern Cyprus (violation of Article 10);
- Lack of guarantees concerning the right of Greek Cypriots living in northern Cyprus to the peaceful enjoyment of their possessions in case of permanent departure from that territory - in case of death, lack of recognition of the inheritance rights of relatives living in southern Cyprus (continuing violation of Article 1 of Protocol No. 1);
- Infringement of the right to education of Greek Cypriots living in northern Cyprus in the absence of appropriate secondary-school facilities (violation of Article 2 of Protocol No. 1);
- Discrimination against Greek Cypriots living in the Karpas area of northern Cyprus amounting to degrading treatment (violation of Article 3);
- Infringement of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home (violation of Article 8);
- Absence of remedies in respect of interferences by the authorities, as a matter of practice, with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1 (violation of Article 13).
Rights of Turkish Cypriots living in northern Cyprus
- Unfair legislative practice of authorising the trial of civilians by military courts (violation of Article 6).
The Deputies examined this case for the first time at their 760th meeting (July 2001). At the 764th meeting (October 2001), it was decided to group the violations found by the Court into four categories, to focus debates on part of them, without preventing the Deputies from pursuing in parallel an examination of the other issues raised in the Court's judgment:
- the question of missing persons,
- the living conditions of Greek Cypriots in northern Cyprus,
- the rights of Turkish Cypriots living in northern Cyprus,
- the question of the homes and property of displaced persons.
Since then, the different categories have been addressed at several times and the delegation of Turkey and other delegations have provided information which has been examined by the Committee of Ministers (for further details on the history of this case's examination by the Committee of Ministers, see document CM/Inf/DH(2007)10).
A Turkish translation of the judgment was published in the legal journal Yargı Mevzuatı Bülteni of 01/07/2003.
For the present meeting, the Chairman has proposed to focus the debates on the questions of missing persons, of the living conditions of Greek Cypriots in the northern part of Cyprus and of the property rights of displaced persons.
1) Question of missing persons (see CM/Inf/DH(2007)10/1)
• Concerning the violation of Articles 2 and 5, the delegation of Turkey has always underlined the importance of the Committee on Missing Persons in Cyprus (CMP), stressing the efforts of Turkey to contribute to the work of this committee and the need to reactivate it.
For this purpose, Mr. Denktaş, “President of the TRNC”, wrote to the Secretary General of the United Nations, on 17/06/2004, to ask for a meeting of the CMP to be called with a view to its reactivation and to a reinforcement of its powers, to comply with the Convention's requirements. A first meeting was held on 30/08/04 and since then the CMP has met regularly. At each examination of the case, the Turkish delegation presents the main work carried out in this context: study of the possible amendments to the rules of procedure of the CMP with a view to increasing its efficiency, identification of burial sites, appointment of the INFORCE Foundation to carry out the exhumation work, exhumation work carried out, discovery of human remains which are now stored awaiting their transfer to an anthropological laboratory established in the buffer zone the construction of which is being finalised, appointment of the Third Member of the CMP, etc.
At the 948th meeting (November 2005) the Turkish delegation informed the Committee of a donation by the Turkish Government to the CMP of 150,000 USD to be spent on the exhumation and identification of missing persons. Furthermore, the “TRNC Council of Ministers” allocated 195,000 New Turkish Liras (approximately 122,000 Euros) to the establishment of the anthropological laboratory. The Exhumation and identification Programme was launched on 21/08/2006. Since then, 31 Greek Cypriots and 25 Turkish Cypriots have been exhumed from both sides. The anthropology laboratory is now in operation and had in December analysed 25 sets of Greek Cypriot and 24 sets of Turkish Cypriot remains. The 2007 budget for the Programme has now been secured.
• Information is awaited on how the project further develops.
In any case, the Secretariat notes that the reactivation of the CMP will only be able to cope in part with the requirements of the Convention (see § 135 of the judgment), as it should only make it possible to draw up a comprehensive list of missing persons, find out if they are alive or dead and in the second case determine the approximate date of death. Effective investigations should also deal with the causes of the disappearances and the circumstances in which they occurred, expressly excluded form the CMP's present mandate. Information is thus awaited on the alternative measures foreseen. In addition, the activities of the CMP would not appear to be relevant for the purposes of the Convention - within the aforementioned limits - unless it were to achieve concrete results quickly.
• As far as the violation of Article 3 is concerned, the Turkish authorities announced the establishment, within the Office of the Turkish Cypriot Member of the CMP, of a special information unit for the families, which started to function on 12/11/04. Since that time, this unit has been receiving requests, directly or by telephone, and provides all information available and already submitted to the CMP within a period of 48 hours, collects information from the families and, according to the Turkish authorities, a dialogue favourable to reconciliation is gradually being established. The Cypriot authorities contest this description of the information unit and question the nature of the information provided by the “TRNC authorities” to the families.
2) Specific questions concerning the living conditions of the Greek Cypriots in the northern part of Cyprus (see CM/Inf/DH(2007)10/3).
• In connection with the issue of secondary education, the Turkish authorities indicate that the secondary school of Rizokarpaso, which reopened on 13/09/2004 is working satisfactorily and concrete information has been provided in this respect. Opened in September 2004 with only the first three years (secondary school), the school now also covers the three following years (high school). Full secondary education is thus now ensured (see declarations of the Delegation of Cyprus at the 937th and 938th meetings of the Deputies on 14 and 21/09/2005). The Turkish authorities furthermore indicate that legislative work is under way to regulate Greek Cypriot and Maronite schools in northern Cyprus. As an interim measure, a decree adopted by the “TRNC Council of Ministers” on 23/05/2005 and amended on 08/11/2005 outlines certain principles and procedural aspects of the functioning of schools with special status. The decree of 08/11/2005 provides, inter alia, regulations concerning the appointment of teachers and the curricula for students.
• Concerning the censorship of schoolbooks it also provides a description of the screening procedure, which includes a review of schoolbooks for Greek-Cypriot schools, taking into consideration the criteria of the European Convention, of which the results will be disclosed in a report containing only recommendations. The books are sent back, through UNFICYP to the Greek-Cypriot schools, without having been censored, within 15 days.
At the 948th meeting (November 2005), the Turkish authorities provided information on the 2005 school year beginning (see above) and on the screening procedure for schoolbooks for the current school year. This screening procedure seems, all in all, to have been in conformity with the principles outlined in the decree and the school books, returned by the “TRNC authorities” to UNFICYP on 09/09/05, were distributed to the primary and the secondary school on 22 and 29/09/2005 respectively. In preparation for the current school year (2006-2007), the primary school books were received by the “TRNC authorities” on 14/08/06 and returned to UNFICYP on 08/09/06. The secondary school books were received on 14/09/06 and returned on 04/10/06, along with a report on the contents of the books.
• Concerning the issue of freedom of religion, the Turkish authorities assert that, following the lifting of the restrictions on freedom of movement, there is no interference anymore of the “TRNC authorities” in the freedom to exercise one’s religious faith and opinions and that a number of religious services in various places of the Karpas region have been facilitated. Prior authorisation is only requested in exceptional circumstances, i.e. for large gatherings, for security and public order reasons. The Turkish authorities have provided two examples in this respect.
Furthermore, in March 2005, the “TRNC authorities” approved the appointment of a second priest, following a proposal made by the Cypriot authorities a few months before, for the Karpas region. However, the person proposed was finally unable to take up his duties for personal reasons. A new request introduced by the Cypriot authorities was rejected in April 2005 for security reasons which were contested by the Cypriot authorities.
In February 2006, the Greek Cypriot authorities again formulated a request, proposing the same priest as was proposed in the previous request. The “TRNC authorities” again rejected this request, and have elaborated on the reasons for this decision.
In December 2006, the Cypriot authorities introduced a new request for the appointment of a second priest through UNFICYP. It is expected that the necessary procedures regarding this request will be conducted in a fair and speedy manner.
At their 982nd meeting (December 2006), the Deputies took note of the satisfactory progress achieved regarding the violations found by the Court in relation to freedom of religion and right to education. They agreed to resume consideration of this case at their 987th meeting (February 2007), in the light of an Interim Resolution to be prepared by the Secretariat with the view, among other things, to closing the examination by the Committee of Ministers of the issues concerning freedom of religion and right to education.
At their 987th meeting (February 2007), the Deputies agreed to resume consideration of this issue at their 992nd meeting (April 2007).
• Concerning the issue of home and property of enclaved persons, the authorities of the respondent state have recently submitted information in this respect. This information is currently under examination by the Secretariat.
3) Issues concerning the home and property of displaced persons (see CM/Inf/DH(2007)10/5)
At the 955th meeting (February 2006) the Cypriot authorities expressed their concern as regards transfers of and construction activities done on the properties of displaced persons. They therefore called upon the Committee to ensure the imposition of a moratorium on those transfers and construction activities. In addition, they called for a census to be carried out in northern Cyprus to ascertain the current usage of immovable properties belonging to displaced persons. During the debate at the 960th meeting (March 2006), it appeared that clarification was needed on the present situation of the property of displaced persons and on the measures taken or envisaged regarding this situation. At the 966th meeting (June 2006) the decision was taken to resume consideration of this case at the 976 meeting, in the light of information to be provided by the authorities of the respondent state. At the 976th meeting (October 2005), the Turkish delegation informed the Committee about the current state of the economy in the “TRNC” and the general influence thereof on the property and construction market. They added that construction development was not concentrated on Greek Cypriot properties, but that the contrary was the case. At this same meeting, the Deputies decided to urge the Turkish authorities to provide, sufficiently in advance to allow the Deputies to have a meaningful debate at the 982nd meeting (December 2006) (DH), detailed and concrete information on changes and transfers of property at issue in the judgment and on the measures taken or envisaged regarding this situation while underlining the necessity not to interfere with the current ongoing judicial process before the Court in the Xenides-Arestis case and not to pre-empt or influence in any way the assessment the Court will be called on to make in that context. At the 982nd meeting however, the Committee found that the information provided by the Turkish authorities at the meeting did not contain any really new or decisive element in this regard and therefore decided to urge the Turkish authorities by means of an interim resolution to provide the information required on the issue at their 987th meeting (February 2007). At this meeting, the Deputies agreed to resume consideration of this issue at the present meeting.
1. adopted Interim Resolution ResDH(2007)25 as it appears in the Volume of Resolutions;
2. decided to resume consideration of this case at their 997th meeting (5-6 June 2007) (DH).
15318/89 Loizidou, judgment of 18/12/96 (merits), Interim Resolutions DH(99)680, DH(2000)105, ResDH(2001)80
In her application introduced in 1989 with the European Commission of Human Rights, the applicant complained of her arrest and detention by Turkish military forces stationed in the northern part of Cyprus, or by forces acting under their authority, and, of the fact that Turkish authorities had prevented her from having access to and from enjoying certain properties she owned on the northern part of the island.
The Commission’s report was transmitted to the Chairman of the Committee of Ministers on 26/08/93. On 09/11/93, the Government of Cyprus referred the part of the case relating to the applicant’s enjoyment of her property rights to the European Court of Human Rights.
In a judgment of 23/03/95 the Court rejected the preliminary objections against its jurisdiction which had been presented by Turkey. The Court found, however, that its jurisdiction extended only to the applicant’s allegations of a continuing violation of her property rights subsequent to 22/01/90 (date of Turkey’s recognition of the Court’s jurisdiction).
In its judgment on the merits, dated 18/12/96, the Court found no violation of Article 8 but a violation of Article 1 of Protocol No. 1 due to the continued denial of access to the applicant's property and consequent loss of control thereof. In a judgment of 28/07/98, the Court awarded the applicant just satisfaction for the damages she had suffered on account of that violation.
Following the latter judgment, the Deputies decided to focus in a first stage on the payment of the just satisfaction awarded by the Court to Mrs. Loizidou. In the context of the supervision of the execution of the judgment of 28/07/98, two letters were sent by the Chairman of the Committee of Ministers to his Turkish counterpart, on 22/06/99 and 04/06/99, and three Interim Resolutions were adopted by the Committee (Resolutions DH(99)680 of 06/10/99, DH(2000)105 of 12/07/2000 and ResDH(2001)80 of 26/06/2001).
The sums awarded by the Court were finally paid on 02/12/2003 and a Resolution was adopted on the same day closing the Committee’s supervision of the execution of the Court’s judgment on just satisfaction (ResDH(2003)190).
As to the merits of the case, the Deputies decided, in their Resolution ResDH(2003)91 of 02/12/2003, to “resume consideration of the execution of the judgment of 18/12/96 in due time, taking into consideration proposals to do so at the end of 2005”.
The examination of the case was resumed at the 948th meeting (November 2005) and has been pursued regularly since then. It has been noted, in this context, that the Immovable Property Commission (established on the basis of Law 67/2005 on immovable property) had so far not made an ex officio offer to Mrs Loizidou.
In this respect, the Deputies noted during the most recent examination of this case (987th meeting, February 2007), that the Immovable Property Commission had invited the applicant to send an application presenting her claims and that the applicant invited the Turkish authorities to discuss the follow-up to be given to the judgment. They have also stressed the exceptional character of the individual measures in this case, having regard to the fact that their adoption has been awaited since the judgment of the European Court on the merits delivered in 1996 and invited the Turkish authorities to adopt without further delay concrete measures in favour of the applicant (see the decision adopted at that meeting).
• Information is awaited in this respect.
1. recalled the exceptional character of the individual measures in this case, having regard to the fact that their adoption has been awaited since the judgment of the European Court on the merits delivered in 1996;
2. took note of the information provided by the Turkish authorities concerning the present situation of the applicant’s property as well as the examination ex proprio motu of the applicant’s case by the “Immovable Property Commission”, set up in northern Cyprus;
3. noted that the recent contacts between the applicant and the respondent state did not succeed and that to date no concrete proposal has been made to the applicant aimed at putting an end to the continuing violation of her property rights found in this judgment and redressing its consequences;
4. urged the Turkish authorities to adopt without further delay the measures necessary in this respect;
5. decided to resume consideration of this case at their 997th meeting (5-6 June 2007) (DH).
28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/03, Interim Resolution ResDH(2005)113
The case concerns the lack of independence and impartiality of the Diyarbakır State Security Court on account of the presence of a military judge (violation of Article 6§1) and the unfairness of the proceedings before that court: the applicant was sentenced to death (subsequently commuted to life imprisonment) mainly on the basis of statements made by gendarmes who had never appeared before the court. Furthermore, the applicant's confessions, upon which the trial court had relied, had been obtained when he was being questioned in the absence of a lawyer and in the circumstances which led the European Court to find a violation under Article 3 (violation of Article 6§§1 and 3d). The case also concerns the ill-treatment inflicted on the applicant while in police custody in 1992 which the European Court found to be inhuman and degrading (violation of Article 3).
1) Reopening of proceedings requested as long ago as 2003: In view of the seriousness of the violation of the applicant's right to a fair trial, specific individual measures to erase it as well as its consequences for the applicant are urgent. In this respect the case presents similarities to that of Sadak, Zana, Dicle and Doğan (Final Resolution ResDH(2004)86) in which proceedings were reopened following the entry into force of Law No. 4793 of 23/01/2003 amending the provisions on the reopening of proceedings in the Code of Criminal Procedure. However, those provisions do not enable reopening of the criminal proceedings in the present case, as the Code only provides reopening of proceedings in respect of European Court judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003 (same situation as many other cases against Turkey concerning state security courts, Section 4.1, Volume I).
The applicant's petition challenging the constitutionality of the Code's provisions on account of the discriminatory character of their scope of application was rejected twice, on 30/10/2003 and 19/11/2003 by the Diyarbakır State Security Court. The applicant thus continues to serve his life sentence.
2) First letter by the Chairman of the Committee: The Chairman of the Committee wrote to the Minister of Foreign Affairs of Turkey on 21/02/2005 (see Addendum 4 prepared for the 966th meeting), indicating that the Court's judgment required the Turkish authorities to grant the applicant adequate redress through either reopening of the proceedings or ad hoc measures to erase the consequences of the violations for the applicant.
In his reply of 01/06/2005 the Turkish Minister of Foreign Affairs stated that there was an intense ongoing public debate on this issue in Turkey and that he felt confident that an appropriate solution would be found in due time, taking into consideration the public debate as well as Turkey's obligations. However, he did not provide any timetable concerning the measures to be taken.
3) Interim resolution: Given the absence of progress in the implementation of the judgment, at the 948th meeting (November 2005), the Committee adopted Interim Resolution ResDH (2005)113 calling on the Turkish authorities, without further delay, to redress the violations found in respect of the applicant through the reopening of the impugned criminal proceedings or other appropriate ad hoc measures.
The Committee further noted with disappointment that the Turkish authorities had so far not responded to the Committee's repeated calls to correct the lacuna in Turkish law which prevents reopening in the applicant's case.
4) Second letter of the Chairman of the Committee: Given that the Turkish authorities have still taken no measure to redress the applicant's situation more than two and a half years after the judgment became final, the Chairman of the Committee addressed a second letter to his Turkish counterpart on 12/04/2006 (see Addendum 4 prepared for the 966th meeting) to convey the Committee's concern at Turkey's continuing failure to comply with the judgment and to urge for appropriate remedial measures in favour of the applicant.
On 08/05/2006, the Turkish Minister of Foreign Affairs replied that the authorities were trying to find an appropriate solution to the problem of inapplicability of the legislation on reopening of proceedings in the applicant's case (see Addendum 4 prepared for the 966th meeting).
5) The decision adopted by the Committee at its 987th meeting (February 2007) reads as follows:
1. deplored the fact that that the Turkish authorities have taken no individual measure following the judgment, despite the Committee’s repeated calls to abide by its obligation, “under Article 46, paragraph 1, of the Convention to redress the violations found in respect of the applicant through the reopening of the impugned criminal proceedings or other appropriate ad hoc measures” (Interim Resolution ResDH(2005)113);
2. noted that the applicant continues to suffer from the grave consequences of certain serious violations of the right to a fair trial found by the Court, which appear to cast serious doubts on the outcome of the domestic proceedings at issue (cf. Recommendation Rec(2000)2);
3. decided to resume consideration of this case at their 992nd meeting (3-4 April 2007) (DH), in the light of further information to be provided on the individual measures taken or envisaged and to consider, if appropriate, a new draft Interim Resolution to be prepared by the Secretariat”.
General measures (No examination envisaged):
1) Independence and impartiality of state security courts: general measures were adopted by the Turkish authorities in the Çıraklar against Turkey case (DH99(555). Furthermore, state security courts were abolished following the constitutional amendments of May 2004.
2) Ill-treatment inflicted on the applicant: the general measures are under way in cases concerning action of the Turkish security forces pending before the Committee.
• Information is still awaited concerning the publication and wide dissemination of the judgment of the European Court to the competent authorities.
1. noted the intention of the Turkish authorities to legislate in order to provide general measures in this case, but that no clear time-frame has been given;
2. adopted Interim Resolution ResDH(2007)26 as it appears in the Volume of Resolutions;
3. decided to resume consideration of the case at their 997th meeting (5-6 June 2007) (DH).
- 6 cases against the United Kingdom
- Action of the security forces in the United Kingdom
28883/95 McKerr, judgment of 04/05/01, final on 04/08/01
37715/97 Shanaghan, judgment of 04/05/01, final on 04/08/01
24746/94 Hugh Jordan, judgment of 04/05/01, final on 04/08/01
30054/96 Kelly and others, judgment of 04/05/01, final on 04/08/01
43290/98 McShane, judgment of 28/05/02, final on 28/08/02
29178/95 Finucane, judgment of 01/07/03, final on 01/10/03
Interim Resolution ResDH(2005)20; CM/Inf/DH(2006)4 revised 2 and CM/Inf/DH(2006)4 Addendum revised 3
These cases concern the death of applicants' next-of-kin during police detention or security forces operations or in circumstances giving rise to suspicions of collusion of such forces.
In this respect, the Court found various combinations of the following shortcomings in the proceedings for investigating deaths giving rise to possible violations of Convention rights (violations of Article 2): lack of independence of the investigating police officers from security forces/police officers involved in the events; lack of public scrutiny and information to the victims' families concerning the reasons for decisions not to prosecute; the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed; the soldiers / police officers who shot the deceased could not be required to attend the inquest as witnesses; the non-disclosure of witness statements prior to the witnesses' appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings; the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.
The McShane case also concerns the finding by the Court of a failure by the respondent state to comply with its obligations under Article 34, in that the police had - albeit unsuccessfully - brought disciplinary proceedings against the solicitor who represented the applicant in national proceedings for having disclosed certain witness statements to the applicant's legal representatives before the European Court.
Individual measures: The Committee of Ministers’ position is reflected in Interim Resolution ResDH(2005)20 of 08/02/2005 recalling:
- “the respondent state's obligation under the Convention to conduct an investigation that is effective “in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible”; and
- the Committee's consistent position that there is a continuing obligation to conduct such investigations inasmuch as procedural violations of Article 2 were found in these cases.
The Committee therefore called on the government to take all outstanding individual measures in these cases rapidly and to keep the Committee regularly informed thereof.
• Measures adopted and outstanding questions: For an extensive description of the situation in each case, see document CM/Inf/DH(2006)4 revised 2 containing background information and the revised Addendum 3 to this document which includes the outstanding issues in these cases. See also the draft interim resolution to be presented at this meeting. Summarising, the current situation in each particular case is as follows:
1) Cases of Shanaghan and Kelly and others, the United Kingdom authorities announced, in a letter of 05/07/2005, the establishment of a new “Historical Enquiries Team” which will be dedicated to re-examining all deaths attributable to the security situation in Northern Ireland between 1968 and 1998, with the aim of identifying and exploring any evidential opportunities that exist. The team will contain two investigative units, one of which will be staffed by officers seconded from police forces outside Northern Ireland, dealing exclusively with cases in which independence from the Police service of Northern Ireland is a pre-requisite. The HET are currently reviewing the Shanaghan case to assess if any new evidential opportunities exist and after this review will decide how to take the case forward. They have been in contact with the family to discuss their work. The Kelly and others case is scheduled for allocation to the Review and Investigation stage on 7/03/2007.
• Information is awaited on the outcome of the review processes and of possible next steps in the investigations.
2) McKerr case, The case is now a matter for the Police Ombudsman (OPONI) who is responsible for investigating deaths as a result of the actions of a police officer. She will identify possible further evidentiary opportunities and will look into the original police investigation conducted. The case has been referred to the Ombudsman in accordance with the HET/OPONI protocol and the Ombudsman has given an assurance to expedite the case as best she can. The United Kingdom authorities have confirmed that OPONI are aware of the issues associated with the case.
• Information is awaited on the progress in this investigation.
3) Jordan case, the inquest has been suspended pending the outcome of the family’s petition to the House of Lords for leave to appeal against two judgments of the Court of Appeal for Northern Ireland concerning inquests. The case is listed before the House of Lords for hearing from 15-23/01/2007. Judgment is likely to be given a number of months thereafter. The inquest into this case would remain suspended until this decision at least.
• Information is awaited on the progress in this inquest and on the outcome of the appeal before the House of Lords.
4) McShane case, the authorities have stated that the Coroner has carried out all the preliminary work and that a suitable date and venue for the inquest were being sought. The Coroner is in the process of attempting to obtain further video footage of the incidents surrounding the death of Mr McShane as well as additional statements to which the Committee on the Administration of Justice may have access. In light of the imminent hearing of the Jordan appeal in the House of Lords and following consultation with interested parties, including representatives of the deceased’s family, the coroner has however indicated that he is not minded to list the inquest into the death of Mr McShane prior to judgment being given by the House of Lords in Jordan. The coroner remains under an obligation to report to the Director of Public Prosecutions any evidence that comes to light at the inquest that appears to disclose that a criminal offence may have been committed. This case will also be reassessed by the HET. They have allocated the case to the Review and Investigation stage on 13/12/2006.
• Information is awaited on the progress in the inquest and the HET investigation. Information on the scope of the inquest would also be useful, since the death in question occurred before the entry into force of the Human Rights Act.
5) Finucane case, the United Kingdom authorities have indicated that the third enquiry conducted by Sir John Stevens is intended to form the basis of the individual measures relating to this case. The investigation, which started in April 1999, is ongoing. The inquiry is squarely concerned with the Finucane murder. 17 individuals have so far been arrested in the course of the investigation in connection with the murder of Mr Finucane. One person has so far been successfully prosecuted for this murder. On 15/04/2003, 63 files were submitted to the Prosecution Service by the Stevens Team. The subjects of some of these files are serving or former police officers and Army personnel. These files remain under consideration by the Prosecution Service, which has kept close contact with the Attorney General regarding the issue.
The commitment to a public Inquiry under the Inquiries Act 2005 relates to the separate political commitment given by the United Kingdom following talks with the Northern Ireland parties at Weston Park in 2001, and should not be considered as a requirement arising out of the United Kingdom's obligations under Article 46 which are instead met by the police re-investigation. The letter from the United Kingdom authorities of July 2005 provided an extensive explanation of their position with regard to the capacity of the aforementioned inquiry under the Inquiries Act 2005 to provide for an Article 2 compliant investigation, and in a document submitted on 14/03/2006, this position was further clarified.
The applicant's representatives have, however, forwarded a number of submissions, including statements by judges having sat on previous inquiries and by NGOs, casting doubt on the capacity of an inquiry set up under the 2005 Act to fulfil the procedural requirements of Article 2, in particular as regards their independence and openness to public scrutiny.
On several occasions, the Irish delegation has expressed serious concerns concerning the capacity of an inquiry set up under the Inquiries Act 2005 to provide an Article-2-compliant investigation in the Finucane case. A number of delegations have indicated that they shared these concerns as well as those raised by the Secretariat in the memorandum on these cases (CM/Inf/DH(2006)4 revised 2) and the third revised Addendum to this memorandum. These regard in particular the use of ministerial powers in such matters as the scope of an inquiry, the approach to and use of restriction notices, publication of the full inquiry materials and findings, the control over the conduct of an inquiry, including the possibility to stop an inquiry, as well as regarding the extent of the victim’s family’s involvement in an inquiry conducted under the Act. New information possibly to be submitted by the United Kingdom authorities shortly, will be incorporated in the document to be issued before the meeting.
• Further information is awaited regarding the ongoing Stevens 3 investigation, as well as on a possible timeline with regard to the decisions by the Prosecution Service on the 63 files submitted by the Stevens team in April 2003.
• With regard to all cases, information would be useful as to whether the decision by the English Court of Appeal in the Hurst case (in which the Court held that the requirement in Section 3 of the Human Rights Act to read and give effect to all legislation in a way that is compatible with Convention rights listed in the Act, whenever that legislation may have been enacted, meant that public bodies must have regard to Article 2 even where the death occurred prior to the Act’s entry into force) represents the state of the law prevailing at present.
More generally, information would be helpful on the implications of this decision in relation to the united Kingdom’s continuing obligation under the Convention to “conduct [effective] investigations inasmuch as procedural violations of Article 2 were found in these cases” (ResDH(2005)20).
General measures: Information submitted to date by the United Kingdom authorities and other interested parties concerning the measures adopted and the outstanding questions appears in Interim Resolution ResDH (2005)20 and in document CM/Inf/DH(2006)4 revised 2, along with the Secretariat's evaluation of that information. Recently, the United Kingdom authorities have submitted further information which will be included in the draft interim resolution to be presented at this meeting.
1) Issues closed on the basis of the measures adopted: Having considered all information provided, the Deputies decided, at the 948th meeting (November 2005), to close the examination of the measures adopted to remedy the following problems revealed by the judgments:
- the inquest procedure did not allow any verdict or findings which might play an effective role in securing a prosecution in respect of any criminal offence;
- the scope of the examination for the inquest was too restricted;
- the persons who shot the deceased could not be required to attend the inquest as witnesses;
- the non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the ability of families to prepare for and to participate in the inquest and contributed to long adjournments in the proceedings;
- the absence of legal aid for the representation of the victim’s families.
2) Outstanding issues: The outstanding questions appear in the revised 3 Addendum of document CM/Inf/DH(2006)4 and, more up to date, in the draft interim resolution to be presented at this meeting. They include, among others, the following (the titles correspond to those used in the Interim Resolution):
- As regards the issue of defects in the police investigation, the authorities of the respondent state are invited to continue to keep the Committee informed regarding the functioning of the HET, and in particular to, in due time, to provide information concerning concrete results obtained in this context.
- As regards the steps taken to ensure that inquest proceedings are commenced promptly and pursued with reasonable expedition: the authorities of the respondent state are invited to continue to keep the Committee informed as regards the concrete effects of the reforms of the Coroners Service of Northern Ireland, in particular on the length of inquest proceedings and the length of the period before an inquest is opened;
At the time of issuing the present annotated agenda, the Secretariat was preparing, in cooperation with the authorities of the United Kingdom, a draft interim resolution taking stock of the progress and setting out the outstanding issues in the implementation of these judgments.
The Deputies decided to resume consideration of these items at their 997th meeting (5-6 June 2007) (DH).
Note 1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 992nd 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.
Note 2 At the 985th meeting (31 January 2007), the Committee of Ministers was informed of the change to this applicant’s surname. The Secretariat points out that the name Petrov-Popa remains unchanged in Committee documents issued until January 2007, the name-change being taken into account as from February 2007.
Note 3 Indeed, the Court held that where a contracting state is prevented from exercising its authority over the whole of its territory by a constraining de facto situation such as obtains when a separatist regime is set up, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory which is outside its effective control, but the scope of that jurisdiction is reduced (§ 333).
Note 4 Interim Resolution ResDH(2005)42, adopted on 22 April 2005.
Note 5 Interim Resolution ResDH(2005)42, adopted on 22 April 2005.
Note 6 This case also appears in Section 3.a