Ministers’ Deputies
Annotated Agenda

CM/Del/OJ/DH(2008)1028 Section 2.1 PUBLIC 27 June 2008
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1028th meeting (DH), 3-5 June 2008

- Annotated Agenda1
- Decisions

Section 2.1

Public information version

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SECTION 2 - NEW CASES

This section lists the new judgments rendered by the European Court of Human Rights, (for further details, see the texts of the judgments on http://www.echr.coe.int).

Action

The Deputies are invited to take a decision to resume consideration of these cases following expiry of the date-limit set by the Court for payment of the just satisfaction or, depending on the requirements of the cases, on completion of bilateral consultations between the Secretariat and the delegations concerned.

Payment of just satisfaction

In all new cases in which states are obliged to pay a sum, whether granted by the Court or agreed to in friendly settlement, the authorities of the state concerned are invited to provide written confirmation of payment to the Secretariat.

In all these cases, just satisfaction or sums agreed under a friendly settlement has been awarded to the applicants except in the following case:

- Nikoghosyan and Melkonyan against Armenia (11724/04+)
- Le Stum against France (17997/02)
- Bekir-Ousta and others against Greece (35151/05)
- Drassich against Italy (25575/04)
- Van Hondel against the Netherlands (38258/03)
- Voskuil against the Netherlands (64752/01)
- Mocarska against Poland (26917/05)
- Bozgan against Romania (35097/02)

General or individual measures

The general and/or individual measures required are currently under consideration in the context of bilateral consultations.

However, in all cases circulation of the text of the judgment to the competent authorities is required and delegations are invited to provide written confirmation of this.

2.1 Cases raising new problems (“precedent cases”)

- 2 cases against Armenia

26986/03 Galstyan, judgment of 15/11/2007, final on 15/02/2008
The case concerns a breach of the applicant’s right of freedom of assembly due to his arrest and sentencing to three days’ detention for participating in a rally in April 2003 following the presidential elections (violation of Article 11).
The European Court observed in particular that the very essence of the right to freedom of peaceful assembly is impaired where a state, while not prohibiting a demonstration, imposes sanctions, especially such severe sanctions, on those participating who had done nothing reprehensible, as in the applicant’s case. The Court therefore concluded that the interference with the applicant’s right to freedom of peaceful assembly was not “necessary in a democratic society”.
The case also concerns an infringement of the applicant’s right to adequate time and facilities for the preparation of his defence (violation of Article 6§3b combined with of Article 6§1). Lastly, the case concerns a breach of the right of appeal in criminal matters (violation of Article 2 of Protocol No. 7).
Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage. The applicant is no longer detained.
Information is awaited on any possible record of the applicant’s condemnation and on measures taken or envisaged in his favour.
General measures: As regards the three violation found in this case (Article 11, 6§3b combined with article 6§1 and Article 2 of Protocol No 7), it appears from the judgment of the Court that the provisions applicable at the material time are no longer in force. The law on freedom of assembly is currently being amended.
Information is awaited on the state of progress of this legislative reform and on proceedings currently applicable (administrative and/or criminal) in case of non respect of these provisions.
Furthermore, translation and publication of the European Court’s judgment as well as its dissemination to the administrative and criminal courts are awaited.

The Deputies,
1. noted with satisfaction that the revision of the law on freedom of assembly is in the process of preparation in co-operation with the Council of Europe;
2. encouraged the Armenian authorities to adopt rapidly amendments to the law on freedom of assembly in conformity with the requirements of the Convention and to set up effective and independent monitoring of the enforcement of the law;
3. invited the Armenian authorities rapidly to provide the Committee of Ministers with information on penalties potentially applicable to participants in a rally and recalled the European Court’s case-law according to which in no circumstances should penalties be applied for mere participation in a rally which has not been prohibited;
4. recalled that individual measures are required in this case, in particular the erasure of any possible mention of the applicant’s conviction in a criminal record;
5. decided to resume consideration of this case at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary, and at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of further information to be provided on individual and general measures.

11724/04+ Nikoghosyan and Melkonyan, judgment of 06/12/2007, final on 06/03/2008
The case concerns an infringement of the applicants’ right to a fair trial in that they received the summons after the hearing, and thus could not take part in it (violation of Article 6§1). The proceedings, which took place in 2003, concerned the annulment of a property sale contract.
Individual measures: The applicants made no claim for non-pecuniary damage. The Court, holding that it could not speculate as to the outcome of proceedings had they been conducted in accordance with Article 6§1, rejected the applicants' claims for pecuniary damage. The Court noted that Article 241.1 of the Code of Civil Procedure allows reopening of the domestic proceedings if the Court has found a violation of the Convention or its Protocols and stated that the most appropriate form of redress in cases where it finds that a trial was held in the applicant's absence in breach of Article 6§1 would as a rule be to reopen the proceedings and re-examine the case in keeping with all the requirements of a fair trial
Information is awaited on measures taken or envisaged in favour of the applicants
General measures:
Publication of the judgment of the European Court is awaited as well as its dissemination to the Court of Cassation, civil courts of appeal and regional courts.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 2 cases against Austria

74336/01 Wieser and Bicos Beteiligungen GmbH, judgment of 16/10/2007, final on 16/01/2008
The case concerns the violation of the right to respect for the correspondence of the applicants, an advocate who is proprietor and general manager of a limited-liability company (the first applicant) and the company itself (the second applicant), on account of searches and seizure of documents carried out in October 2000 in the first applicant’s chambers (violation of Article 8).
The European Court noted that the procedural guarantees provided in the Code of Criminal Procedure had not been respected with regard to the search and to the seizure of electronic data: the Bar Association member present could not properly exercise his supervisory function as regards the electronic data, and the report on the search was not drawn up at the end of the search but only later the same day.
The European Court found that the police officers’ failure to comply with procedural safeguards designed to prevent abuse or arbitrariness and to protect the advocate’s duty of professional secrecy rendered the search and seizure of the electronic data disproportionate to the legitimate aim pursued.
Individual measures: The European Court awarded just satisfaction to the first applicant in respect of non-pecuniary damage sustained. The second applicant submitted no claim in respect of non-pecuniary damage.
Information is awaited on the fate of the electronic data subject to professional secrecy, and especially on whether they have been destroyed.
General measures: Austrian law provides detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It has been established in domestic courts’ case-law that these provisions also apply to the search and seizure of electronic data. It seems that this was an isolated violation resulting from the particular circumstances of the case.
Publication and dissemination of the European Court’s judgment to relevant courts and authorities are expected, to raise their awareness of the Convention’s requirements as they result from this case.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

12556/03 Pfeifer, judgment of 15/11/2007, final on 15/02/2008
This case concerns a breach of the applicant’s right to respect for his private life due to domestic courts’ failure to protect his reputation against defamatory statements in a national newspaper (Art. 8).
In June 2000, the newspaper Zur Zeit published a letter by its chief editor alleging that the applicant had caused the suicide of a professor by criticising his anti-Semitic publications. In June 2000 and October 2001, two sets of defamation proceedings brought by the applicant against the publishing company owning Zur Zeit were dismissed. The national courts held that the article at issue contained a value judgment which relied on a sufficient factual basis (proceedings under Article 111 § 1 of the Criminal Code and under section 6 of the Media Act).
The European Court noted that, by alleging that the applicant’s commentary had caused the suicide of the professor, the chief editor’s letter overstepped acceptable limits, because it in fact accused the applicant of acts tantamount to criminal behaviour. Even if the statement were to be understood as a value judgment it lacked a sufficient factual basis and no proof had been offered for the alleged factual link.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
Information is awaited as to whether the applicant may request reopening of the defamation proceedings or start new proceedings.
General measures: A similar issue was raised in the Wirtschaftstrend No. 2 and 3 (Application Nos. 58547/00 and 66298/01, both in section 6.2), concerning convictions of defamation for publications in magazines. In these cases the European Court noted that the right to freedom of expression had been interpreted too narrowly by the Austrian Courts and found violations of Article 10. Consequently between 1997 and 2005 the Austrian authorities provided regular training for judges on the Convention and especially the European Court’s case-law relating to Article 10.

• Taking into account the circumstances and the type of violation in this case, information is expected on further training and awareness-raising measures for judges on the interplay of Articles 8 and 10 as well as on publication and dissemination of the European Court’s judgment

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 4 cases against Azerbaijan

9852/03 Hummatov, judgment of 29/11/2007, final on 29/02/2008
The case concerns degrading treatment suffered by the applicant due to the lack of appropriate medical treatment of the tuberculosis he had contracted in detention (violation of Article 3). The European Court considered that the inadequate medical treatment in Gobustan Prison must have caused the applicant considerable mental suffering, diminishing his human dignity and amounting to degrading treatment within the meaning of Article 3 of the Convention.
The case also concerns the absence of an effective remedy both in law and in practice, to complain of the lack of adequate medical treatment (violation of Article 13).
Lastly, the case concerns a violation of the right to a public hearing and therefore to a fair trial (violation of Article 6§1).
Individual measures: The European Court awarded just satisfaction to the applicant in respect of non-pecuniary damage. In September 2004 the applicant was given a presidential pardon and was released from prison. He immediately renounced his Azerbaijani citizenship and was taken to the airport and placed aboard a flight to the Netherlands where he is currently living as a stateless person.
Information is awaited on measures taken or envisaged in favour of the applicant.
General measures:
1) Violation of Article 3: The Court recalled that under Article 3 of the Convention the state must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured
Information is awaited on measures taken or envisaged to eradicate the propagation of diseases in detention, in particular tuberculosis, and to provide appropriate medical care to prisoners.
2) Violation of Article 13:
Information is awaited on the availability of an effective remedy either in law or in practice to complain of the lack of adequate medical treatment in prison.
3) Violation of Article 6§1: The Court noted that the main reason for reopening the applicant's case was to remedy the alleged lack of a fair hearing at first instance, as the applicant had been recognised as a “political prisoner” upon Azerbaijan's accession to the Council of Europe and Azerbaijan had committed itself to give a “re-trial” to all political prisoners including the applicant. The Court recalled that to hold a trial other than in an ordinary courtroom, in particular in a place like a prison to which the general public in principle has no access, presents a serious obstacle to its public character and that in such case, the state is under an obligation to take compensatory measures to ensure that the public and the media are duly informed of the venue of the hearing and are granted effective access. Finally, the European Court finds that the Court of Appeal failed to adopt adequate compensatory measures to counterbalance the detrimental effect which the holding of the applicant's trial in the closed area of Gobustan Prison had on its public character.
Translation and publication of the European Court’s judgment are awaited. Information on other measures taken or envisaged by the Azerbaijanis authorities is also awaited in order to avoid similar violations.

The Deputies,
1. took note of the information provided by the Azerbaijani authorities during the meeting which remains to be assessed;
2. invited the Azerbaijani authorities rapidly to inform the Committee of Ministers of further measures taken or envisaged to ensure prisoners’ access to appropriate medical care; to guarantee an effective remedy in law and in practice to complain of the lack of adequate medical treatment and to ensure fair trials within the meaning of Article 6 of the Convention;
3. encouraged the intensification of bilateral contacts between the Azerbaijani authorities and the Secretariat in this respect;
4. decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary, and at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of further information to be provided on individual and general measures.

4307/04 Nasibova, judgment of 18/10/2007, final on 18/01/2008
The case concerns the violation of the applicant’s right of freedom of association (violation of Article 11) due to the repeated failure of the Ministry of Justice to respond within the statutory time-limits to her requests for registration of an association.
Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
It appears from the judgment of the European Court of Human Rights (§11) that when replying for the last time to the applicant’s request for registration, the Ministry of Justice did not take into account the revised charter submitted by the applicant and refused the registration of the Association. It is unclear whether the association was eventually registered or not.
Information is awaited on the fate of the applicant’s association.
General measures: see case of Ramazanova and others (Section 4.2)

The Deputies decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, and to join it, subsequently, with the case of Ramazanova and others to supervise individual and general measures.

19853/03 Akimova, judgment of 27/09/2007, final on 27/12/2007
The case concerns an interference with the applicant’s peaceful enjoyment of her possessions on account of a judgment at appeal recognising that the applicant was the lawful tenant of a flat, but postponing the enforcement of an eviction order against illegal occupants the flat, not relying on any domestic legislation, until they may return to their region of origin, Agdam, which remains under the control of Armenian forces (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision and should be reserved, the subsequent procedure to be fixed taking account of any agreement which might be concluded between the government and the applicant.
• Pending the judgment of the Court on the application of Article 41, information is already awaited on measures taken or envisaged to put an end to the interference with the applicant’s peaceful enjoyment of her possessions; the issue of restitutio in integrum will be examined in the light of the judgment of the European Court on Article 41.
General measures:
Translation and publication of the European Court’s judgment as well as its dissemination to the Supreme Court and to the Court of Appeals are awaited, as is information on other possible measures taken or envisaged.

The Deputies decided to resume consideration of this item once the Court gives judgment under Article 41 and at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

31556/03 Efendiyeva, judgment of 25/10/2007, final on 25/01/2008
The case concerns the delay in the enforcement of a final judgment ordering the applicant’s reinstatement in her post as Medical Director of the Republican Maternity Hospital and payment of compensation for wrongful dismissal.
The Court noted that the judgment of the Nasimi District Court of 9/09/1994, which was not enforced until July 2007, had remained unenforced, following the Convention’s entry into force in Azerbaijan (15/04/2002), for almost five years and three months and that no reasonable justification had been given for this delay (violation of Article 6§1).
Moreover, the Court held that, by failing to comply with the judgment of the Nasimi District Court of 9/09/1994, the authorities prevented the applicant from receiving the sums due to her, an unjustified interference in her right to peaceful enjoyment of her possessions (violation of Article 1 of Protocol No. 1)
Individual measures: The Court considered that the question of the application of Article 41 (just satisfaction) was not ready for decision.
The applicant was reinstated in her post on 11/07/2007. Some of the violations have therefore been remedied.

The issue of other possible individual measures will be examined later in the light of the judgment of the Court on Article 41of the Convention.
General measures
Translation and publication of the Court’s judgment is awaited
Detailed information is awaited on enforcement proceedings currently in force and on effective remedies available to complain and obtain compensation in case of delay in the enforcement of domestic decision of justice.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on general measures;
2. once the Court has given judgment under Article 41, for examination of possible individual measures.

- 1 case against Belgium

20656/03 Loncke, judgment of 25/09/2007, final on 25/12/2007
This case concerns an infringement of the applicant's right of access to a court, in the context of tax proceedings constituting a “criminal charge” against him (violation of Article 6§1). In 1999, the Ghent Court of Appeal declared the applicant’s appeal inadmissible on the basis of Article 92, paragraph 2 of the, VAT Code, as he had not paid the sums he had been ordered to pay at first instance, i.e. more than 3,7 million euros.
In view of the specific circumstances of the case, including the obvious disproportion between the very large amounts the applicant had been expected to pay and his financial situation, the European Court held that that the inadmissibility decision had been a disproportionate measure with respect to the protection of the Tax administration’s interests and that the applicant’s effective access to the Court of Appeal had been hindered on that account.
Individual measures: in its examination of the just satisfaction to be granted to the applicant, the European Court held that it could not speculate on the possible outcome of the proceedings in the absence of the violation of the Convention.
Information appears necessary as to whether it is possible for the applicant to have his case re-examined in the light of the violation of the Convention.
General measures: the European Court did not call Article 92, paragraph 2 of the VAT Code into question, but its implementation by the judge in the specific circumstances of the case. According to this provision, modified in 1999 (the modifications being inapplicable to the facts of this case), if an appeal is lodged against a judgment rejecting the legal action brought by the debtor, the tax administration (The receiver of VAT) may request the debtor to pay all or part of the sums due, or to provide surety. The administration shall take account of the information in the file, in particular the debtor’s financial situation. The Court seised of an appeal may declare it inadmissible if the sums requested have not been paid or if surety has not been given, within a two month delay, except where the Court holds that the request made by the administration is not well founded.
Information is awaited on measures taken or envisaged to ensure that Article 92, paragraph 2, of the VAT Code is applied in accordance with the Convention as interpreted in this judgment. In any event, it appears necessary to publish the judgment and disseminate it to the courts and tax administrations concerned, possibly with a circular letter.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 2 cases against Bosnia and Herzegovina

27966/06 Šobota-Gajić, judgment of 06/11/2007, final on 06/02/2008
The case concerns the violation of the applicant’s right to respect for her family life in that during the course of six years the authorities failed to take all reasonable measures to facilitate her reunion with her son, regardless of several domestic decisions in her favour.
On 19/02/2003 the Gradiška Court of First Instance granted the applicant a divorce and custody over her son. While appeal proceedings were pending in the case, the applicant was granted provisional custody by an administrative order of 12/02/2003. However, it took nine months to execute this administrative order as a result of interdepartmental disputes over administrative responsibilities. The applicant’s son was abducted by his father the day after the execution of the administrative order. Since domestic law apparently provided no administrative order for enforced return of a child more than once (it was envisaged only in respect of judicial orders), the enforcement proceedings concerning the administrative order were ended without result. The judgment of the Gradiška Court of First Instance became final only on 07/09/2004, but remained unexecuted.
Furthermore, the criminal proceedings initiated against the child’s father for abduction remained at preliminary stage until the death of the father on 14/01/2006.
Subsequently, on 31/03/2006, the Gradiška Minor Offences Court ordered the Social Care Centre promptly to secure, with police assistance if necessary, the return of the applicant’s son from his paternal grandmother, with whom he continued to live after the death of his father. This order was enforced only on 22/01/2007 since it triggered some confusion as to the responsibility for its enforcement. The local police also refused to provide assistance regardless of the clear instruction of the Gradiška Minor Offences Court to this effect.
The European Court found that there was no evidence that any preparatory work had been carried out in order to facilitate the reunion between the applicant and her son (violation of Article 8).
Individual measures: The applicant was reunited with her son on 22/01/2007.
Assessment: no further individual measure appears necessary.
General measures:
Information is awaited on measures taken or envisaged to ensure that situations involving the enforcement of custody orders are handled swiftly and with the due diligence required.
It appears from the outset that the new 2002 Family Act of Republika Srpska (the entity of the respondent state in which the events at issue took place) provides that only divorce courts are authorised to make interim orders in respect of both custody and maintenance in the course of matrimonial proceedings. The administrative authorities have been stripped of such powers (§ 40 of the judgment).
In this context, information is also awaited with regard to the situation in the entire Republic of Bosnia and Herzegovina. The publication and wide dissemination of the European Court’s judgment also appear necessary.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

39462/03 Karanović, judgment of 20/11/2007, final on 20/02/2008
The case concerns the violation of the applicant’s right to access to a court due to the failure, since 2003 to enforce a final, binding decision of the Human Rights Chamber of Bosnia and Herzegovina given in his favour (violation of Article 6§1).
The applicant was in receipt of an old-age pension from the pension fund of the former Socialist Republic of Bosnia and Herzegovina. When he had to move from Sarajevo to Republika Srpska as an internally displaced person in 1992 due to the armed conflict at the time, he began to receive a pension from the Republika Srpska Pension Fund. Upon his return to Sarajevo in 2000, the applicant unsuccessfully sought to receive his pension from the Federation of Bosnia and Herzegovina Pension Fund (hereinafter “the Federation Fund”), which provides a higher pension than that paid in Republika Srpska. At the same time, pensioners who have moved to other countries during the armed conflict have continued to enjoy their full pension rights under the Federation Fund.

The applicant applied to the Human Rights Chamber of Bosnia and Herzegovina, which held in a decision of 10/01/2003 that he had been discriminated against in his enjoyment of the right to social security. The Chamber ordered the Federation of Bosnia and Herzegovina to take all necessary legislative and administrative action to remedy such discrimination in general as well as to pay to the applicant the difference in the pension paid to him as compared to the more favourable pension amounts payable by the Federation Fund, as from the moment he seised the Human Rights Chamber.
Individual measures: The European Court ordered the enforcement of the decision of the Human Rights Chamber in respect of the applicant not least by transferring him to the Federation Fund (§24 of the judgment).
Information is awaited on measures taken or envisaged by the authorities to transfer the applicant to the Federation Fund and pay him the awarded difference between the pension amounts he received and those payable under more favourable regime of the Federation Fund, as ordered by the European Court’s judgment.
General measures: The European Court noted that the violation of the applicant’s right of access to a court “concerns the failure of the authorities to eliminate discrimination from the pension legislation regardless of the order of the Human Rights Chamber in that direction”. It further noted that the “facts of the case […] disclose the existence, within the national legal order, of a shortcoming affecting a whole class of citizens (namely, pensioners living in the Federation of Bosnia and Herzegovina who were internally displaced in the Republika Srpska during the armed conflict)” and stressed that “the fact that they are all potential applicants represents a threat to the future effectiveness of the Convention machinery” (§27 of the judgment).
Information is thus awaited on measures taken or envisaged to eliminate discrimination from pensions law as ordered by the decision of the Human Rights Chamber
Information is also awaited on measures taken or envisaged to ensure that the decisions of the Human Right Chamber are enforced.
In this respect, it is noted that according to 2003 Criminal Code of Bosnia and Herzegovina (Article 239), failure to enforce a final and enforceable decision of the Human Rights Chamber amounts to a criminal offence.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of further information to be provided on the payment of just satisfaction and on individual measures, in particular transfer of the applicant to the Federation of Bosnia and Herzegovina Pension Fund and payment of the difference in pension amounts received;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH),in the light of further information to be provided on general measures, in particular measures to eliminate discrimination from pensions legislation in accordance with the order of the Human Rights Chamber.

- 5 cases against Bulgaria

72663/01 Dimitrov Nicolay, judgment of 27/09/2007, final on 27/12/2007
This case concerns the authorities’ failure in their obligation to conduct an effective investigation into the applicant’s credible allegations of ill-treatment inflicted by private third parties (violation of Article 3). Although the applicant had identified the assailants to the authorities, had provided medical evidence that he had been physically assaulted, and despite the fact that certain investigative steps had been conducted by the authorities in the immediate aftermath of the applicant’s complaint, the authorities had not acted with sufficient diligence and had finally put an end to the criminal proceedings against the accused basing their decision mainly on the fact that the applicant had withdrawn his complaint in the meantime. The authorities had thus relied on the fact that the applicant had withdrawn his complaint, disregarding the evidence gathered during the investigation and the applicant’s later statements according to which the withdrawal of his complaint was the result of the pressure brought on members of his family by one of his alleged aggressors.
Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damages suffered.
Information is expected about the possibility for the applicant to request the conducting of a new investigation into his allegations of ill-treatment.
General measures: The Court noted that the ill-treatment of which the applicant complained is identified as a crime under Bulgarian criminal law and that the applicant could request compensation for the damage caused. The Court therefore found that the authorities could not be reproached for not having put an appropriate legal framework in place.

Information is awaited on measures envisaged or already taken to prevent similar violations (e.g. training activities for the investigative authorities, including the prosecution service). In any event, the publication and dissemination of the European Court’s judgment to all investigation authorities, if appropriate with a circular letter explaining the main conclusions of the European Court in this case, appear to be appropriate measures for the execution of this judgment.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

61360/00 Popov Nedelcho, judgment of 22/11/2007, final on 22/02/2008
The case concerns the infringement of the applicant’s right of access to a court competent to examine the regularity of his dismissal in 1997 from the post of adviser, which he occupied in the Bulgarian Council of Ministers (violation of Article 6§1). At the material time, the applicant could not institute proceedings for improper dismissal as, under Article 360§2 (2) (a) of the Labour Code, domestic courts were not competent to examine claims concerning dismissal from certain posts in the Council of Ministers, in particular those occupied by the applicant. By a decision of 30/04/2008, the Constitutional Court ruled this restriction to be contrary to both the Constitution and Article 6§1 of the Convention.
Referring to the decision of the Constitutional Court, the European Court concluded that the restriction on the applicant’s right of access to a court was not justified.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Bilateral contacts are under way to assess the need for individual measures.
General measures: Article 360§2 (2) (a) of the Labour Code was repealed in 2001 in the part concerning the categories of employees referred to in the judgment of the European Court. At present, these categories of employees have access to a court for work-related disputes which concern them.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), for examination of individual measures.

62540/00 Association for European Integration and Human Rights and Ekimdzhiev, judgment of 28/06/2007, final on 30/01/2008
The case concerns the absence of sufficient guarantees in the framework of a law authorising recourse to secret surveillance measures (violation of Article 8). The European Court, ruling on an application lodged by the applicants, an association having the protection of human rights as one of its principal aims and a lawyer whose practice includes representing applicants in proceedings before the European Court, considered that the very existence of the Special Surveillance Means Act of 1997, in force at the time as well as currently, exposed them to the possibility of being subjected to secret surveillance measures without any notification at any point in time. As to the quality of the law, the Court concluded that while the relevant legal provisions provided substantial safeguards against arbitrary or indiscriminate surveillance during the initial stage of such surveillance, this was not the case during the later stages, namely when the surveillance is actually carried out or has already ended.
The Court criticised in particular:

    - the fact that the law did not provide for any review of the implementation of secret surveillance measures by an external and independent body or official;
    - the apparent lack of regulations specifying how the intelligence collected should be screened, preserved and destroyed;
    - the fact that the overall control over the system of secret surveillance is entrusted solely to the Minister of the Interior, while the manner in which the Minister effects such control is not set out in the law; and
    - the fact that the persons subjected to such surveillance are not notified at any time of this fact.

The case also concerns the lack of effective remedy to challenge the usage of special surveillance measures (violation of Article 13).
Individual measures: These are linked to the general measures.
General measures:
The Bulgarian authorities are invited to provide information as to how and when they envisage to amend the legal framework governing secret surveillance measures so as to bring it in line with the Convention’s requirements. Information is also awaited on the publication and dissemination of the European Court’s judgment to relevant authorities, in particular to the Constitutional Court, to the Sofia City Court, to all regional courts in the country, including the military regional courts, and to the Ministry of the Interior.

The Deputies
1. noted with interest the information provided by the Bulgarian authorities on the ongoing work to amend the legal framework governing the use of secret surveillance;
2. noted the systemic character of the violations found by the European Court in this case since they are due to the very existence of a surveillance system exposing anyone in the country to secret monitoring, without the necessary safeguards and without any notification at any time;
3. invited the Bulgarian authorities to provide rapidly additional information in particular on the progress of the legislative reform, including copies of the draft amendments, and on the time-frame for its adoption;
4. decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, and at the latest at their 1043rd meeting (2-4 December 2008) (DH).

14134/02 Glas Nadejda EOOD and Elenkov, judgment of 11/10/2007, final on 11/01/2008
The case concerns an unlawful interference with the freedom of expression of the applicant company due to the refusal without reasoning by the competent body, the National Radio and Television Committee (NRTC), to award it a radio broadcasting licence (violation of Article 10).
The European Court pointed out in particular that the NRTC had not held any form of public hearing and its deliberations had been kept secret, despite a court order obliging it to provide the applicants with a copy of its minutes. Nor had it given reasons explaining why it considered that the applicant company had failed to meet its requirements. This lack of reasons had not been made good in the ensuing judicial review proceedings, because the Supreme Administrative Court had held that the NTRC’s discretion was not reviewable. This, coupled with the vagueness of some of the NRTC’s criteria, had denied the applicants legal protection against arbitrary interference with their freedom of expression.
The case also concerns the absence of a judicial review of the NRTC’s decision. The European Court observed that the approach taken by the Supreme Administrative Court in the applicants’ case, which had involved refusing to interfere with the NRTC’s discretionary powers, had fallen short of the requirements of Article 13, which obliges domestic authorities to examine the substance of the complaints made under the Convention (violation of Article 13).
Individual measures:
Information is awaited as to whether the applicants may submit a new application for a radio broadcasting licence (currently before the Electronic Media Council).
General measures: The European Court found in its judgment that the guidelines adopted by the Committee of Ministers in the field of broadcasting regulations called for open and transparent application of the regulations governing the licensing procedure and specifically recommended that all decisions taken by regulatory authorities are duly reasoned and open to review by the competent judicial bodies (Recommendation Rec(2000)23). In this connection, it should be noted that the national law provided at the material time and still provides that the decisions of the competent body to grant, modify or withdraw a radio broadcasting license may be reviewed by the Supreme Administrative Court (Article 38 of the Law on Radio and Television). The approach followed by the Supreme Administrative Court in this case appears to be based solely on its practice.
Information is awaited on measures envisaged to prevent new, similar violations. In particular it would be useful to have a copy of the regulations currently in force concerning the criteria and procedure for the award of radio broadcasting licences. In any event, the publication and dissemination of the European Court’s judgment to the Electronic Media Council (in the past the NRTC), to the State Telecommunications Commission and to the Supreme Administrative Court, appear necessary measures of execution.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided concerning individual and general measures.

53746/00 Ivanov Ivan, judgment of 10/01/2008 – Friendly settlement
The case concerns the length of certain criminal proceedings and right to an appropriate, effective remedy (complaint under Articles 6§1 and 13).

The Deputies:
1. noted that the friendly settlement does not contain particular undertakings other than the payment of the agreed sums;
2. decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of further information to be provided concerning the payment of the sums agreed, if necessary;
3. considered that no other measure of execution is necessary.

- 2 cases against Cyprus

21906/04 Kafkaris, judgment of 12/02/2008 – Grand Chamber
This case concerns the infringement of the principle “no punishment without a law” on account of the quality of the law applicable at the material time (1987), which did not enable the applicant to discern precisely the scope of the penalty of life imprisonment and the manner of its execution (violation Art. 7).
The European Court observed that the legal basis for the applicant’s conviction and sentence was the criminal law applicable at the material time and his sentence, that was mandatory life imprisonment, corresponded to that prescribed under section 203(2) of the Criminal Code for the offence of premeditated murder. However, according to the Court, at the time the applicant committed the offence, it was equally clear that both the executive and the administrative authorities, including the prison service, understood the Prison Regulations as imposing a maximum period of 20 years to be served by any person who had been sentenced to life imprisonment. In 1988, in the Yiouroukkis case, the Nicosia Assize Court interpreted life imprisonment as meaning “imprisonment for life”, and, in 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court.
The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. On the contrary, the Court did not accept the applicant’s argument that a heavier penalty was retroactively imposed on him since it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damages sustained by the applicant. It also found a non-violation of Article 7 as regards the applicant’s complaint that the amendment of the prison regulations subsequent to his being sentenced made it impossible for him to expect a remission of sentence.
Evaluation: the violation found in this case consists only in the fact that the law applicable at the time the applicant committed the offence did not enable him to discern precisely the scope of the penalty of life imprisonment and the manner of its execution. When the Limassol Assize Court sentenced the applicant, it was already clear that life imprisonment had become imprisonment for the rest of one’s biological life. In these circumstances, no further individual measure seems necessary.
General measures: Following to the Supreme Court’s judgment in the case of Hadjisavvas against Cyprus (judgment of 8/10/1992, (1992)1 A.A.D. 1134), which declared the Prison (General) Regulations of 1981, as amended in 1987, unconstitutional, these Regulations have been repealed in 1996. According to the new regulations the imposition of mandatory imprisonment has become imprisonment for the rest of one’s biological life, thereby excluding any possibility of remission for life prisoners.
Evaluation: no further general measure seems necessary.

The Deputies:
1. decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary,
2. considered that no other execution measure is necessary.

28025/03 Kolona, judgment of 27/09/2007, final on 27/12/2007
This case concerns an unjustified interference in the applicant’s right to the peaceful enjoyment of her possessions due to the unlawful demolition of her home in 2000 (violation of Article 1of Protocol No. 1).
The European Court observed that the authorities demolished the applicant’s house on the basis of a requisition order adopted simultaneously with an order of compulsory acquisition in the public interest. However, at the material time it was still open to the applicant to appeal against the compulsory acquisition order and, what is more, at the moment the house was demolished, the compulsory acquisition order had been revoked because the property was no longer required in the public interest. The Court considered the demolition based on the temporary requisition order to be unlawful.
In addition it noted that the applicant had not been offered or granted any compensation for the demolition of her house despite the authorities’ duty both under the Constitution and the applicable legislation.
For the same reasons, the case concerns also the violation of the applicant’s right to the respect for her home (violation of Article 8).
Individual measures: The European Court reserved the application of Article 41 in its entirety.
General measures:
Information is awaited on measures taken or envisaged to prevent future, similar violations. In any event, publication and dissemination of the European Court’s judgment to competent authorities and courts seem necessary.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

- 1 case against the Czech Republic

35098/03 Dymáček and Dymáčkova, judgment of 07/02/2008 – Friendly settlement
This case concerns the applicants’ complaint that they had been deprived of possessions acquired in good faith and in accordance with national law without being paid adequate compensation (complaint under Article 1 of Protocol No. 1).

The Deputies:
1. found that this friendly settlement does not contain any specific undertaking, except payment of the sums agreed;
2 decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the sums agreed, if necessary.

- 4 cases against France

43546/02 E.B., judgment of 22/01/2008 – Grand Chamber
This case concerns the discriminatory treatment suffered by the applicant on account of her sexual orientation in the context of an application for authorisation to adopt violating her right to the respect of her private life (violation of Article 14, combined with Article 8). The final rejection of her application by the competent local authorities (President of the Conseil Général of Jura, based on the recommendation of the local social services), confirmed by the administrative tribunals, was principally based on the ambiguous nature of the partner’s commitment to the adoption plan and the absence of a “father-figure” in the household.
The European Court found no discrimination with regard to the first ground for rejection. The Court, however, criticised the importance that was given to the second ground of rejection (absence of “father-figure”) concerning the adoption by a single person; in the Court’s view, in the whole procedure the reference to the applicant’s homosexuality was at least implicit and the influence of this element on the appreciation of the application was decisive. As a result, the applicant was treated differently. In view of the fact that national law authorised the adoption of a child by a single person and remained silent as to the necessity of a referent of the other sex and in view of the fact that the applicant was said to present undoubted personal qualities and aptitude for bringing up children by the Conseil d’Etat, the European Court concluded that the difference in treatment was discriminatory as it was based on the applicant’s sexual orientation; the illegitimacy of one of the grounds had the effect of contaminating the entire decision.

Individual measures: Without the authorisation denied the applicant in the proceedings at issue, adoption is legally impossible.
Information is awaited as to whether the applicant has made a further application for an authorisation to adopt.
General measures: Article 343-1 of the Civil Code provides that any single person over 28 may apply to adopt. French law therefore implicitly allows adoption by single homosexuals (§ 94 of the judgment).
Assessment: the law itself does not seem in question. What is important is that in the case of an application for authorisation to adopt, there should be no distinction based on the sexual orientation of the applicant, a distinction which is not authorised under the Convention.
Information is awaited on measures taken or envisaged with that aim. In this respect it is recalled that the French authorities have indicate that, in general, judgments of the European Court are sent out to courts and to the directorates of the Ministry of Justice concerned, and that the most relevant judgments are commented upon on the intranet site of the Ministry of Justice, to which all courts have access. In this specific case, it appears necessary to confirm that the European Court’s judgment has been published and disseminated to administrative courts and Conseils Généraux, for example via a circular letter.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

9375/02 Saoud, judgment of 09/10/2007, final on 09/01/2008
The case concerns the violation of the right to life of the son and brother of the applicants: his death by suffocation in 1998 was a direct consequence of being held down on the floor by police officers (violation of Article 2).
The European Court considered that the way in which the applicant, a schizophrenic, was arrested, especially the force exerted by the police, was proportionate to the violence of his behaviour, not least towards members of his family. As to the events following his arrest, the applicant was in a dependant relationship with the public authorities who, as the Court recalled, had a positive obligation to protect his life. This obligation was not respected in this case. Although aware of the young man’s illness and although he no longer presented a danger to others (his feet and hands were restrained) the policemen held him down on the floor for 35 minutes, in the immobilisation position which caused his death. The Court stated that this type of immobilisation (“ventral decubitus”) was considered highly life-threatening. Furthermore, no medical examination, even superficial, was carried out.
The case also concerns the violation of one of the applicants’ right to a fair trial, in that it was materially impossible for the counsel assigned to her – at a late stage in the proceedings – to file pleadings with the Cour de cassation (violation of Article 6§1). As the applicant had been refused legal aid, she appealed this decision before the First President of the Cour de cassation. This appeal was ultimately successful but in the meantime the reporting judge had already deposited his report which, under Article 590 of the Code of Criminal Procedure extinguished her counsel’s right to file pleadings. The European Court noted that although a civil party’s right to lodge an appeal before the Cour de cassation is a limited right, the decision to grant the applicant legal aid implicitly recognised the existence of serious grounds for appeal and offered her the chance of being defended by specialised counsel.
Individual measures: In this case the cause of death is known: the Court found (§97) that the fact that Mr Saoud had been held down on the floor was the direct cause of his death by slow suffocation. The Court awarded 20 000 euros to the applicants, who had requested just satisfaction in respect of the non-pecuniary damage sustained, considering the circumstances in which their son and brother had died and the fact that the violation of Article 6 had prevented them from obtaining the criminal conviction of the persons responsible for this death and to mourn properly (§138).
Assessment: Information appears necessary as to whether other measures have been taken or envisaged concerning the agents concerned.

General measures
1) Violation of Article 2: In addition to the matters presented above concerning the causes of the violation, the Court regretted that no specific instructions had been given by the French authorities regarding this type of immobilisation technique and that, although professionals trained in first aid were present, no first aid had been given to Mr. Saoud before his cardiac arrest.
Information is awaited on measures taken or envisaged to avoid similar violations. In particular, it appears necessary to envisage the adoption of clear instructions on this type of immobilisation technique, which caused the person’s death. Furthermore, it appears necessary to adopt training or awareness-raising measures for public order officials on immobilisation techniques and other methods of constraint, in view of the Court’s conclusions in this case (especially regarding the positive obligation to protect the life and health of a person under arrest who is therefore in a relationship of dependency with regard to the public authority). The publication and dissemination of the European Court’s judgment appear necessary, in particular to the forces of order. .
2) Violation of Article 6§1:
Information is awaited on measures taken or envisaged to guarantee the full effect of appeals before the First President of the Cour de cassation against decisions to refuse legal aid.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

17997/02 Le Stum, judgment of 04/10/2007, final on 04/01/2008
This case concerns a breach of the applicant’s right to an impartial tribunal (violation of Article 6§1). The applicant, the manager of a company under judicial administration then liquidation, was ordered (judgment of 1997 final in 2001) to bear personally the company’s debts, on account of mismanagement (responsibility for lack of assets). The European court noted that there might prima facie be doubts as to the impartiality of the court which convicted the applicant, since the insolvency judge in charge of supervising the running of the company throughout the judicial administration proceedings subsequently presided over it. The Court examined whether these doubts constituted “objective grounds” in the circumstances, and concluded that they did, since the role actually played by the judge concerned had led him to form an opinion on the matter before the court, prior to the trial.
Individual measures: The European Court found that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. The applicant also requested certain sums corresponding to the amount he paid to execute the sentence delivered against him (more than 6 000 euros); in this respect, the Court indicated that it could not speculate as to the outcome of the proceedings in the absence of a violation.
Assessment: the sums the applicant was ordered to pay in the proceedings at issue were destined for the company in liquidation. In these circumstances, having regard in particular to the principle of legal certainty, reopening of these proceedings does not appear necessary.
General measures: Establishing the existence of a violation in this kind of proceedings requires a case-by- case assessment, depending on the role in the judicial administration proceedings played by the insolvency judge. In any event, as the Court itself underlined (§33), the law has been recently amended and now, when a tribunal is required to rule on a manager’s possible responsibility for insufficiency of assets (as in the present case), the insolvency judge may neither sit nor participate in the deliberations of the bench of the court (Law No. 2005-845 of 26 July 2005; Articles L651-3 of the Commercial Code). Similar measures have been taken for other proceedings in which a court may invoke managers’ responsibility or pronounce sanctions against them (obligation to support social debts, Article L652-5; personal bankruptcy and other prohibitions, Article L653-7).
Assessment: no further measure appears necessary.

The Deputies:
1. noted that no further measure seems to be required for the execution of this judgment;
2. decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), with a view to examining the possibility of closing this case.

12316/04 Asnar, judgment of 18/10/2007, final on 18/01/2008
The case concerns the unfairness of certain proceedings concerning civil rights and obligations before the Conseil d’Etat in 1999 and in particular the violation of the adversarial principle, due to the fact that a submission by another party had not been communicated to the applicant (violation of Article 6§1).
The European Court noted that this submission included a reasoned opinion on the merits of the claim of the applicant, who should therefore have been given the opportunity to submit his comments.
In the proceedings at issue, the Conseil d’Etat set aside a judgment awarding the applicant a pension as from 1991. As a result of this judgment the Minister for Economic affairs, Finance and Industry decided that the applicant’s right to a pension dated only from 1996. The applicant thus found himself obliged to reimburse the pension that had been paid to him between 1991 and 1996, approximately 122 000 euros.
Individual measures: The court rejected the applicant’s request to be awarded just satisfaction for pecuniary damage. The applicant has appealed before the French administrative courts against the decisions requiring reimbursement of the pension to the state (these decisions have, for the time-being, been suspended) and has requested an award for damages allegedly sustained with regard to the postponement of his pension entitlement from 1991 to 1996. In 2005 the Bordeaux Administrative Tribunal awarded the applicant 120 000 euros for pecuniary damage and 11 000 euros for non-pecuniary damage. This procedure is pending before the Bordeaux Administrative Court of Appeal.
Assessment: it appears that the pending national proceedings might offer the opportunity of evaluating the possible consequences of the violation on the applicant’s situation. Further information on these proceedings would appear useful.
General measures: According to Article R.611-1 of the Administrative Justice Code, new submissions should be communicated to the other party if they contain new elements. Internal law did not directly cause the violation; the violation was a consequence of its interpretation by the Conseil d’Etat which did not disclose the submission to the applicant (the defendant in this case) considering – wrongly in the European Court’s opinion – that it included no new element that might have any bearing on the outcome of the dispute.
Assessment: it is recalled that the French authorities have indicated that, in general, judgments of the European Court are sent out to courts and to the directorates of the Ministry of Justice concerned, and that the most relevant judgments are commented upon on the intranet site of the Ministry of Justice, to which all Courts have access. In the present case, it would seem necessary to confirm the wide dissemination of the European Court’s judgment to the Conseil d’Etat and other administrative jurisdictions so that they can have it in mind if other such cases should arise. Confirmation of the publication of the European Court’s judgment also seems necessary to raise the awareness of law professionals.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 2 cases against Georgia

38736/04 FC Mretebi, judgment of 31/07/2007, final on 30/01/2008, rectified on 24/01/2008
The case concerns an infringement of the right of access to a court, and thus to a fair hearing, in that the applicant, the Football Club Mretebi, could not continue proceedings for damages following the refusal by the Supreme Court to grant its request for exemption from court fees (violation of Article 6§1).
The European Court observed in particular that the Supreme Court failed to secure a proper balance between the interest of the state in securing reasonable court fees on the one hand that of the applicant in vindicating its claim through the courts on the other.
Individual measures: The applicant did not request just satisfaction for non-pecuniary damage. The Court rejected the applicant’s claim for pecuniary damage on the ground that it could not speculate about the outcome of the domestic proceedings had they been in conformity with Article 6§1. The Court stated that, having regard to its finding in this case, and without prejudice to other possible measures remedying the unjustified denial of the applicant's right of access to the court of cassation, it considered that the most appropriate form of redress would be to have the applicant's points-of-law appeal of 5/01/2004 examined by the Supreme Court, in accordance with the requirements of Article 6§1, should the applicant so request.

Information is awaited on the individual measures taken or envisaged in favour of the applicant, and in particular on the existence of provisions concerning reopening of proceedings in Georgian law.
General measures:
Translation and publication of the Court’s judgment are awaited as well as its dissemination to the Supreme Court. Information is also awaited on provisions currently applicable to exemption of court fees.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the individual measures;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures and, if necessary, Individual measures.

30779/04 Patsuria, judgment of 06/11/2007, final on 06/02/2008
The case concerns an infringement of the applicant’s right to liberty and security due to his being detained on remand in 2004 on grounds which cannot be regarded as “relevant” or “sufficient” (violation of Article 5§3).
The European Court held that, because they relied essentially on the seriousness of the charges against the applicant, the Georgian courts had failed to address the specific circumstances of his case or to consider alternative pre-trial measures. The Court underlined that the fact that the last decision extending the applicant’s detention on remand was a standard template with pre-printed reasoning was particularly worrying.
Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. The applicant is no longer detained on remand.
Assessment: No further measure seems necessary.
General measures:
Ÿ Translation and publication of the Court’s judgment as well as its dissemination to the Prosecutor General’s Office, district courts, Regional courts and Supreme Court are awaited. Information on provisions currently applicable to detention on remand is also awaited.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

- 3 cases against Greece

35522/04 Stavropoulos Vassilios, judgment of 27/09/2007, final on 27/12/2007
The case concerns a breach of the principle of the presumption of innocence in that in 2004 the administrative court of appeal and the Council of State had expressed doubts as to the applicant’s innocence in their decisions on the annulment by administrative courts of his right to social housing on the grounds of deception and making a false declaration of his wealth. These doubts were expressed despite the fact that the applicant had been acquitted in criminal proceedings concerning the same matter (violation of Article 6§2).
Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage suffered by the applicant.
Bilateral contacts are under way to assess the need for further individual measures.
General measures:
The Greek authorities are invited to consider publishing of the European Court’s judgment in this case and to ensure its wide dissemination to the competent authorities to draw their attention to the Convention’s requirements concerning the respect of the principle of the presumption of innocence.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on possible individual measures and on general measures, namely the publication and dissemination of the judgment of the European Court.

35151/05 Bekir-Ousta and others, judgment of 11/10/2007, final on 11/01/2008
The case concerns the refusal of the competent courts to register the applicants’ association, on the sole basis of a suspicion that the applicants intended to promote the idea that an ethnic minority existed in Greece (violation of Article 11).
The European Court noted that the contested measure rested only on a simple suspicion concerning the true intentions of the founders of the association and concerning the actions that the association might pursue once it started to operate. Further, the European Court estimated that even if the real aim of the association was to promote the idea that an ethnic minority existed in Greece, this could not in itself constitute a threat to a democratic society. The Court noted in this connection that nothing in the statute of the association indicated that its members would engage in violence or non-democratic or anti-constitutional actions. Finally, once the association was founded, the relevant court could order its dissolution if it subsequently pursued an aim different from that stipulated in the statute or if its functioning turned out to be contrary to public order. As a result, the Court concluded that the contested measure was disproportionate to the objectives pursued.
Individual measures: The Court concluded that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained.
Information is awaited as to whether the applicants might make a new application to have their association registered.
General measures: Publication and wide dissemination of the European court’s judgment to all competent courts, accompanied by an explanatory letter emphasising the requirements of the Convention in the field of freedom of association as spelled out in this judgment, appear necessary.
Information is also awaited on the possible organisation of targeted training activities for judges in this area.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- Case concerning freedom of expression
19331/05 Katrami, judgment of 06/12/2007, final on 06/03/2008
The case concerns disproportionate interference with the freedom of expression of the applicant, a journalist, as a result of her being sentenced in 2004 to a year’s imprisonment suspended for having written an article about a judge using language which was considered abusive (violation of Article 10). The European Court stressed that a prison sentence imposed in the context of a case concerning freedom of expression of journalists is not compatible with the requirements of Article 10, except in exceptional circumstances having a serious effect on the rights of others were, such as hate speech or incitement to violence. The Court noted in this connection that the protection of the reputation of the claimant could have been ensured by the means offered in civil law. Moreover, the Court indicated that the national courts had not made a distinction between “facts” and “value judgments” and had only looked into whether the words used by the applicant were likely to impinge upon the reputation of the claimant.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Information is awaited on measures taken to erase the legal consequences of the conviction of the applicant.
General measures: It may be noted that the direct effect of Article 10 in the field of freedom of the press has been expressly recognised in Greek case-law (see Council of State judgment 253/2005, referred to in the framework of the Rizos and Daskas case, Section 6.1, 997th meeting, June 2007).
In this context, circulating a copy of the European Court’s judgment to courts competent in this field appears a sufficient measure of execution.
Information is awaited on the publication and dissemination of the European Court’s judgment, as well as any other measure adopted or envisaged to prevent similar violations.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 3 cases against Italy

*37201/06 Saadi, judgment of 28/02/2008 – Grand Chamber
The case concerns the danger that the applicant might be subjected to torture or to degrading or inhuman treatment in his country of origin, Tunisia, if the deportation order against him were to be enforced (violation of Article 3). The applicant was lawfully resident in Italy from December 2001 to October 2002 and placed in pre-trial detention as from that date on suspicion among other things of international terrorism. In 2005, the Milan Assize Court found the applicant guilty of criminal conspiracy (the previous offence of international terrorism having been thus reclassified because of the lack of evidence), of forgery and receiving, and sentenced him to four years and six months’ imprisonment. The appeal proceedings were still pending when the European Court adopted its judgment.
The applicant having being released on 4 August 2006, the Minister of Interior ordered him to be deported to Tunisia (8/08/2006) under the provisions of the Law of 27/07/ 2005 on “urgent measures to combat international terrorism” and placed him in a temporary holding centre. On 3/11/2006 he was released. Meanwhile (May 2005) a military court in Tunis convicted the applicant of membership of a terrorist organisation acting abroad in peacetime and of incitement to terrorism and sentenced him to 20 years’ imprisonment.
The European Court found that, if deported to Tunisia, the applicant ran the risk of being subjected to torture and inhuman treatment contrary to Article 3. It observed that the danger of terrorism and the difficulties states face in protecting their communities from terrorist violence should not call in question the absolute nature of Article 3. The Court reaffirmed that for a forcible expulsion to be in breach of the Convention it was necessary – and sufficient – for substantial grounds to have been shown for believing that there was a risk that the applicant would be subject to ill-treatment in the receiving country. It considered that in the present case, on the basis of the evidence received, and not rebutted by any of the evidence provided by the Italian government, there were substantial grounds to believe the risk was real. This conclusion was not challenged by the diplomatic assurances provided by the Tunisian government.
Individual measures: The European Court considered that the finding of the violation constituted just satisfaction in respect of non-pecuniary damages suffered by the applicant.
Information is awaited on the current situation of the applicant (status of the pending criminal proceedings, residence), as well as on the measures taken in respect of him.
General measures: The European Court’s judgment in this case, which is of general interest inasmuch as it re-affirms the requirements of the Convention as regards deportation, deserves broad dissemination in Italian, not least via modern electronic media.
Information is awaited on this effective dissemination, as well as on the other measures envisaged or already taken to prevent future similar violations.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, as well as on the individual measures;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in order to examine individual and general measures.

25575/04 Drassich, judgment of 11/12/2007, final on 11/03/2008
This case concerns the violation of the applicant’s right to be informed in detail of the nature and cause of the accusation against him and his right to have adequate time and facilities for the preparation of his defence in criminal proceedings (violation of Article 6§3 (a) and (b), together with Article 6§1).
When examining the applicant’s objection that the offence of which he was accused was time-barred, the Court of Cassation decided to reclassify the acts he allegedly committed (from simple corruption to corruption in judicial acts). The Court of Cassation justified its dismissal of the objection on the basis of the new classification of the acts, which also resulted in a longer prison sentence for the applicant.
The European Court found that whilst domestic courts may reclassify the acts which they have to judge, in this case the applicant was neither warned of the possibility of reclassification nor given the possibility to contest the new accusation by adversarial argument. The Court also noted that it was plausible to argue that the applicant’s defence would have been different had he known of the new accusation.
Individual measures: The applicant made no request for just satisfaction. The European Court considered that a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.

Italian law still does not authorise reopening of proceedings following the finding of a violation of the Convention. The last draft law introducing reopening into the Italian judicial system (AS 1797 – Senate) in respect of violations of Article 6§3 was pending before the legislature ended prematurely. However, in the first place, the Constitutional Court has been seised of the matter (by the Bologna Appeal Court in the Dorigo case) and secondly, the Court of Cassation (still in the context of the Dorigo case) has insisted that machinery for the re-opening of domestic proceedings is urgently needed and noted that this was already possible in the case of in absentia judgments. The Court of Cassation also emphasised that the pending decision of the Constitutional Court on the subject creates a legal vacuum. Finally, the Rome Tribunal (in the context of the Bracci case) underlined the need to introduce such a mechanism into Italian law, and, noting the impossibility of reopening by jurisprudential means, it decided to establish the unlawfulness of the applicant's imprisonment by declaring his conviction to be unenforceable.
It is now for the Italian authorities to draw all the consequences arising in Italian law from these findings, both in the present, specific case, and more generally.
Information is awaited on the current situation of the applicant, as well as on whether any progress has been accomplished in allowing re-opening of proceedings. It is recalled that the applicant had been sentenced to 3 years and 8 months of imprisonment by the final decision of May 2004 (§§ 14 and 16 of the Court’s judgment).
General measures: The Court, in the present case, observed that the Italian legal order allows for reclassification of acts without the application of the principle of the adversarial argument.
The European Court’s judgment in this case, which is of general interest inasmuch as it re-affirms the requirements of the Convention as regards the fairness of trial, deserves broad dissemination in Italian, not least via modern electronic media.
Information is awaited on any measure envisaged or taken to prevent future, similar violations as regards reclassification of acts, and on the effective publication and dissemination of the judgment.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

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

64215/01 De Trana, judgment of 16/10/2007, final on 16/01/2008
This case concerns the non-execution of an enforceable judicial decision of 5/09/1997 ordering the administration to pay the applicants compensation for damage caused by military activities on their property (violation of Article 6§1). The failure to execute this decision for almost twenty years is also at the origin of the breach of the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court ordered the full enforcement of the judicial decision of 05/09/1997, within three months from that date on which its judgment becomes final. It also awarded the applicants just satisfaction in respect of non-pecuniary damages.
Information is awaited on the execution of the decision of 5/09/1997. .
General measures:
Information is awaited on measures taken or envisaged by the Italian authorities to prevent future, similar violations and in particular on effective remedies available to applicants in domestic proceedings to complain of non-compliance with judicial orders by administrative authorities.
In any event, publication and dissemination of the European Court’s judgment in Italian, not least via modern electronic media, to authorities competent for this kind of cases seem necessary, to draw attention to the requirements of the Convention in this respect.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 1 case against Lithuania

74420/01 Ramanauskas, judgment of 05/02/2008 – Grand Chamber
The case concerns the violation of the applicant’s right to a fair hearing; in 2000 the applicant, a prosecutor, was found guilty of bribery following active incitement by state agents (violation of Article 6§1).
At appeal on points of law, the Supreme Court found that the evidence corroborated the applicant's guilt, which he himself had acknowledged. Thus, the Supreme Court held that once his guilt had been established, the question of whether the commission of the offence had been procured had no consequence with regard to the legal definition of the offence.
The European Court found that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences before, in particular corruption-related offences. All the meetings between the applicant and the agents took place at their initiative and the applicant seemed to have been subjected to blatant pressure on their part to commit a criminal acts whereas there was no objective reason to suppose that he intended to do so.
The European Court further indicated that the domestic authorities and courts should at the very least have undertaken a thorough examination into “incitement”, as maintained by the applicant throughout the proceedings. They should have established in particular the reasons why the operation had been engaged, the extent of the police's involvement in the offence and the nature of any incitement or pressure. The applicant should have had the opportunity to state his case on each of those points and the courts should have made all necessary efforts to hear the state agents as witnesses.
The European Court concluded therefore that the agents’ actions had had the effect of inciting the applicant to commit the offence concerned and that there was no indication that the applicant would have committed it without their intervention (violation of Article 6§1).
Individual measures: In January 2002 the applicant was released on probation and in July 2002 the prohibition on his working in the judiciary was lifted. Furthermore, in January 2003, his conviction was expunged.
Information is awaited as to whether there remain any other consequence for the applicant resulting from his conviction in violation of Article 6§1 in his case. In addition, the European Court awarded him just satisfaction in respect of pecuniary and non-pecuniary damage sustained.
General measures:
Information is awaited on measures taken or envisaged to prevent similar violations in the future in the context of undercover operations. The authorities may wish to benefit from the experience of Portugal and Russia in their efforts to reform their legislative and judicial framework regarding the protection of individuals from undue influence by undercover agents, in the similar cases of Teixeira de Castro against Portugal and Vanyan against Russia.
Publication and dissemination of the European Court's judgment to the relevant authorities are also expected, so as to draw their attention to the requirements of the Convention as they arise from the judgment.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of an action plan to be provided by the Lithuanian authorities as well as information on the dissemination and publication of the judgment.

- 9 cases against Moldova

35615/06 Cebotari, judgment of 13/11/2007, final on 13/02/2008
42440/06 Muşuc, judgment of 06/11/2007, final on 06/02/2008
8207/06 Stepuleac, judgment of 06/11/2007, final on 06/02/2008
These cases concern violations of the right to liberty and security of the applicants, all chief executives of companies, due to their unjustified arrest and detention in policy custody in the detention centre of the Centre for Fighting Corruption and Economic Crimes (CFECC) (Cebotari and Muşuc) and in the General Directorate for Fighting Organised Crime (GDFOC) (Stepuleac). In the Cebotari case the applicant’s company made a series of complex contractual agreements concerning the importation of electricity from Ukraine to Moldova, also involving the Oferta Plus company (Application No. 14385/04, Section 4.2).The applicant was arrested and detained on charges of large-scale embezzlement of state funds.

In the Muşuc case, the applicant was arrested on charges of having misappropriated an office building by buying it from a bank at a price lower than its market value. In the Stepuleac case, the applicant was arrested twice on charges of theft, damage to property and blackmail, laid by third persons.
In all these cases, the European Court considered there was no reasonable suspicion that the applicants had committed an offence (5§1). In the Cebotari case, the European Court, also relying on its findings in Oferta Plus case (§§ 50, 51) found that the real purpose of the criminal prosecutions was to put pressure on the applicant to prevent Oferta Plus from pursuing its application before the European Court (violation of Article 5§ 1 and 18 taken in conjunction with Art 5 in the Cebotari).
The Cebotari case also concerns a violation of the right of petition, as in the CFECC the applicant could not discuss issues concerning his application before the European Court with his lawyer without being separated by a glass partition. The European Court also considered that the applicant’s effective representation before it had been hindered as he had not been able to sign the application forms while in detention (violation of Article 34).
The Muşuc case also concerns the insufficient reasons given for the applicant’s detention in police custody, the requirement that he pay bail and his continued detention on the ground that he had failed to pay it (violation of Article 5§3). It also concerns the lack of access of the applicant and his lawyer to the material in the criminal file related to his detention proceedings and lack of confidential communications between applicant and his lawyer in the CFECC (violation of Article 5§4).
Lastly the Stepuleac case also concerns substantial and procedural violations of Article 3 in respect of the applicant’s conditions of detention in the GDFOC detention centre and the insufficient medical assistance given to him as well as the failure to investigate the applicant’s complaints about intimidation in his cell.
Individual measures: None. In the Cebotari case the applicant was released on bail in 2006. He was acquitted of all charges brought against him in 2007.In the Muşuc case the applicant was released in 2006. In the Stepuleac case the applicant was released in 2006. The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.
General measures:
1) Violation of Articles 5§ 1 and 18 taken in conjunction with Article 5
Information is awaited on measures envisaged to prevent new, similar violations.
2) Violation of Articles 34 and 5§4: The issue of lack of confidentiality of lawyer-client communications in the CFECC detention centre is being examined in the Sarban group (1020th meeting, March 2008, Section 4.2).
3) Violation of Articles 5§3
- insufficiency of the reasons given for detention: see the Sarban group.
- continuation of detention based on applicant’s failure to post bail: In the circumstances of the case, the European Court did not consider it necessary to determine whether the amount of the bail imposed on the applicant was excessive or not.
Information is awaited on measures taken to prevent new, similar violations.
4) Violation of Article 5§4 in respect with the right to a fair trial (habeas corpus): see the Sarban group.
5) Violations of Article 3:
- poor conditions of detention and lack of medical assistance: see the Becciev group (Section 4.1).
- Lack of investigation into the applicant’s allegations of ill treatment in his cell: see the Corsacov group (Section 4.1).

The Deputies decided to resume consideration of these items:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

29089/06 Colibaba, judgment of 23/10/2007, final on 23/01/2008
This case concerns the ill-treatment of the applicant in police custody and the lack of effective investigation into the applicant’s allegations of ill-treatment (substantive and procedural violations of Article 3).
The case also concerns the breach of the applicant’s right of petition due to a letter addressed by the Prosecutor General of the Republic of Moldova to the Moldovan Bar association. In this letter the Prosecutor General warned the applicant’s lawyer that a criminal investigation would be initiated as a result of the latter’s allegedly improper complaint to international organisations.

In this respect, the European Court considered that the impugned letter could have a dissuasive effect on the applicant’s lawyer’s intention to bring or pursue his client’s application before the European Court (§§ 67 and 68 judgment) (violation of Article 34).
Individual measures: The applicant was released in 2006.
Information is however awaited concerning the conduct of new investigations into the allegations of ill-treatment.
General measures:
1) Violations of Article 3: Similar issues are being examined in the Corsacov group (section 4.1)
2) Violation of Article 34:
Information is awaited on measures envisaged by the authorities to prevent similar violations.

The Deputies decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, as well as on individual and general measures.

41578/05 David, judgment of 27/11/2007, final on 27/02/2008
This case concerns the unlawful and arbitrary detention of the applicant in the Central Psychiatric Hospital to undergo medical examinations to determine whether he was fit to plead in compensation proceedings he brought against the state (violation of Article 5§1 e)).
The European Court considered that the court order of 14/03/2004 to hospitalise the applicant was not aimed at protecting him or others but simply to check his fitness to plead and that the applicant had agreed. Thus from the moment that he made it know that he wanted to leave the hospital, his detention became arbitrary and unlawful within the terms of Article 5§1 e) (§40 of judgment).
Individual measures: The applicant was released from the hospital on 29/04/2005. The European Court awarded him just satisfaction in respect of non-pecuniary damage.
General measures
Information is awaited on measures envisaged to prevent new, similar violations.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

14277/04 Guja, judgment of 12/02/2008 – Grand Chamber
This case concerns a breach of the applicant’s freedom of expression, in particular his right to impart information, as a result of his dismissal, in March 2003 from his employment as the Head of the Press Department of the Prosecutor General’s Office for having disclosed internal information to a newspaper. The information at issue concerned an interference by a high-ranking politician (Deputy Speaker of Parliament) with the Prosecutor General’s Office in pending criminal proceedings concerning four police officers prosecuted for ill-treatment.
Civil action brought by the applicant against the Prosecutor General’s Office seeking reinstatement was dismissed on the ground that the applicant had breached his obligations under internal regulations by not consulting other departmental heads and by disclosing secret documents. The Supreme Court of Justice dismissed his action on the same grounds and stated that obtaining information through the abuse of one’s position was not part of freedom of expression (§25 of the judgment).
The European Court noted that reporting of illegal conduct or wrongdoing in the workplace by a civil servant should in certain circumstances enjoy protection and concluded that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society for the following reasons (violation of Article 10):
- there was no provision either in the legislation or in the internal regulations enabling employees to report irregularities;
- the information disclosed was very important for the public interest since it concerned the separation of powers, improper conduct by a high-ranking politician and the government’s attitude towards police brutality;

- the information disclosed was genuine;
- the protection of the public interest in information about undue pressure and wrongdoing within the Prosecutor’s Office was more important than that of the interest in maintaining public confidence in the Prosecutor General’s Office;
- the applicant had acted in good faith because his motive for disclosing the information was to help fight corruption and trading in influence;
- the sanction imposed on the applicant (i.e. dismissal from his employment) was very severe.
Individual measures: The European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage resulting from the applicant’s dismissal. However it considered that the sanction imposed to the applicant, his dismissal, was a very harsh measure having negative repercussions on the applicant’s career (§95 of the judgment).
Information is awaited on the current situation of the applicant.
General measures:
Information is awaited on measures envisaged by the authorities to prevent new, similar violations.

The Deputies decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction as well as on individual and general measures.

17211/03 Dolneanu, judgment of 13/11/2007, final on 13/02/2008
This case concerns the violation of the applicant’s right to peaceful enjoyment of his possessions due to the belated payment of an amount due to him, on the basis of a decision of the Parliament adopted in 1994 for the partial recovery of the depreciation of his deposits at the State Savings Bank (violation of Article 1 of Protocol No.1).
The European Court noted that the domestic courts had established the illegality of the interference with the applicant’s right and that the delay in payment was attributable to the Ministry of Finance due to the lack of budgetary resources.
The case also concerns the lack of an effective remedy in this respect (violation of Article 13 taken in conjunction with Article 1 of Protocol No. 1). The Court noted that the domestic courts had admitted the absence of any legal basis for awarding compensation to the applicant.
Individual measures: In 2004 the applicant received the amount due to him. The European Court awarded him just satisfaction in respect of the pecuniary and non-pecuniary damage sustained.
Assessment: no further individual measure seems necessary.
General measures:
Information is awaited on measures envisaged to prevent new, similar violations and in particular dissemination of the judgment to the Ministry of Finance.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

40117/02 Cazacu, judgment of 23/10/2007, final on 23/01/2008
This case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions due to the refusal of the domestic courts to award him redundancy payments as provided in Articles 45 and 80 of the Labour Code.
The European Court noted that the applicant fulfilled the legal conditions governing entitlement to the payment, the only reason for dismissing his claim being the failure of his employer to provide for redundancy payments even though such provision was required by law of all employers (§§44 and 46). It therefore found the domestic courts’ refusal illegal (violation of Article 1 of Protocol No. 1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damages.
Assessment: no further measure seems necessary.

General measures:
Information is awaited on measures envisaged by the authorities to prevent new, similar violations.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

13229/04 Clionov, judgment of 09/10/2007, final on 09/01/2008
This case concerns the belated enforcement of a final domestic judgment awarding the applicant compensation for his employer’s failure to pay him monthly invalidity benefit (violations of Article 6§1 and Article 1 of Protocol No. 1).
The case also concerns a violation of the applicant’s right of access to a court due to the refusal by the Supreme Court of Justice to examine his appeal because he did not pay court fees (violation of Article 6§1). In this respect the European Court, noting that under Article 437 (2) of the Code of Civil Procedure, appeals on points of law before the Supreme Court of Justice may not be subject to any exemption from court fees, partial or total, irrespective of the appellant’s financial situation, took the view that such a blanket prohibition of waiving court fees itself raises an issue under Article 6§1 (§41 of the judgment).
Individual measures: The domestic court judgment was enforced and the European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage sustained.
General measures:
1) Late enforcement of final domestic judgments: see Luntre group, (section 4.2).
2) Right of access to a court:
Information is awaited on the measures envisaged by the authorities to comply with the requirements of Article 6§1 relating to Article 437 (2) of the Code of Civil Procedure.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

- 2 cases against the Netherlands

64752/01 Voskuil, judgment of 22/11/2007, final on 22/02/2008
This case concerns a disproportionate interference with the right to freedom of the expression of the applicant, à journalist. He had written articles concerning the way in which police operation had been conducted against arms smugglers. He was subsequently summonsed to appear as a witness in criminal proceedings against the smugglers in September 2000 and was detained for 17 days to compel him to reveal his sources.
The European Court found that the reasons put forward by the government were first, to ensure a fair trial and secondly to defend the integrity of the police. It considered that argument was not relevant as the domestic court had been able to obtain the requisite evidence though the testimony of other witnesses in the absence of information from the applicant. As to the second reason, the European Court took the view that in a democratic state governed by the rule of law, the use of improper methods by a public authority was precisely the kind of issue about which the public had the right to be informed. The Court held that the interest of democratic society in a free press prevailed over the government’s interest in knowing the applicant’s source (violation of Article 10).
The case also concerns the unlawfulness of the applicant’s detention in that he had only been provided with a written copy of his detention order after three days, in violation of the procedure prescribed by domestic law (violation of Article 5§1).
Individual Measures: The applicant has been released and has made no claim for just satisfaction.
Assessment: no further individual measure seems necessary

General Measures:
1) Violation of Article 5§1: Article 224 of the Dutch Code of Criminal Procedure provides that detention orders are notified in writing within twenty-four hours. This procedure was not followed in this case. The violation seems to be an isolated incident.
2) Violation of Article 10: . The European Court found that the interference with the applicant’s freedom of expression had a basis in law (Article 294 § 1 of the Code of Criminal Procedure) but that it was disproportionate (not “necessary in a democratic society”).
Information is awaited on publication and dissemination of the European Court’s judgment to the relevant courts and on further possible measures, such as training judges on the impact of Article 10 on Article 294 § 1 of the Code of Criminal Procedure, having regard to Committee of Ministers’ Recommendation R(2000)7 on the right of journalists not to disclose their sources of information.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

38258/03 Van Vondel, judgment of 25/10/2007, final on 25/01/2008
This case concerns a breach of the right to respect for the private life and correspondence of the applicant, a policeman, due to the interception of certain of his telephone conversations by a private individual with the assistance of the police (violation of Article 8).
The European Court considered that although the recordings had been made voluntarily by the individual concerned, the equipment had been provided by the authorities, who had on at least one occasion given him specific instructions as to what information should be obtained from the applicant. The Court noted that the police were conducting an internal enquiry with a view to establishing the facts concerning certain methods of investigation and that in this specific context they were not authorised by law to use certain investigatory powers such as the covert recording of (telephone) conversations.
Individual measures: The applicant submitted no claim for just satisfaction.
Information awaited on the fate of the recordings and their transcription, and especially as to whether they have been destroyed.
General measures: The case presents similarities to that of M.M. (Final Resolution CM/ResDH(2007)130), which also concerned telephone interceptions by a private individual with the assistance of the police, but in the context of a criminal investigation.
Information awaited: Given that the present case concerns a different kind of procedure, i.e. an internal, fact-finding enquiry, information is awaited on measures envisaged to avoid telephone taping without legal basis in such circumstances, as well as on publication and dissemination of the European Court’s judgment to relevant courts and authorities (particularly the police) to raise awareness of the Convention’s requirements as they result from this case.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 1 case against Norway

12148/03 Sanchez Cardenas, judgment of 04/10/2007, final on 04/01/2008
The case concerns a violation of the applicant’s right to respect for to his family life due to the reasoning of a decision by the Gulating High Court in 2002, refusing his request for access to his two sons. The appellate court referred in particular to certain evidence suggesting that he had abused one of his sons, but concluded that it was not necessary to go further into the question.
The European Court found that, although the interference was in accordance to law and pursued a legitimate aim (the protection of the rights of others), the relevant passage from the High Court judgment had not been sufficiently justified in the circumstances and had been disproportionate to the aims pursued. In the Court’s opinion, the domestic court should either have dealt with the issue of sexual abuse fully, by examining the evidence and coming to a reasoned conclusion, or left it apart. The inclusion of the passage in such an authoritative judicial decision had had a major impact on the honour and reputation of the applicant and had seriously prejudiced his private and family life (violation of Article 8).

Individual measures: The European Court acknowledged that the Appellate Court’s decision on visiting rights had not been influenced by the inclusion of the contentious passage on the suspicions of sexual abuse (§33 of the judgment). It awarded just satisfaction in respect of non-pecuniary damage resulting from the prejudice to the applicant’s honour and reputation or to his private and family life arising from the suspicions expressed by the appellate court.
Assessment: no further individual measure seems necessary.
General measures:
Information provided by the Norwegian authorities (9/04/2008): the Ministry of Justice had requested the National Court Administration to ensure that the judgment of the European Court is disseminated to courts (letter of 8/04/2008). It also suggested including the judgment, in particular as regards the issue it raises in relation to the formulation of arguments in legal decisions, in the training programme for judges.
Information is awaited on the publication of the European Court’s judgment and on the training measures for the judges.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

- 3 cases against Poland

26917/05 Mocarska, judgment of 06/11/2007, final on 06/02/2008
This case concerns the unlawful provisional detention of the applicant pending placement in a psychiatric hospital (violation of Article 5§1 (e)).
On 25/10/2005 the Warsaw District Court discontinued criminal proceedings against the applicant on the ground that she could not be held criminally responsible due to her poor mental condition and ordered that she be placed in a psychiatric hospital. Subsequently the applicant remained in an ordinary detention centre for eight months, due to delays caused by the district court itself and the Psychiatric Commission on Preventive Measures, which was responsible for indicating in which psychiatric hospital the applicant should be placed.
The European Court noted that the continuation of provisional detention for eight months could not be regarded as lawful.
Individual measures: On 30/06/2006 the applicant was transferred from the detention centre to the Pruszkow Psychiatric Hospital. She claimed no just satisfaction before the European Court.
Assessment: no further individual measure appears necessary.
General measures: According to Article 264§3 of the Code of Criminal Procedure, if proceedings are discontinued for reasons linked to the mental health of the accused, detention may be ordered pending the application of a preventive measure.
The European Court noted that the length of detention pending transfer to a psychiatric hospital is not specified by any statutory or other provision.
Information is awaited on the publication and dissemination of the European Court’s judgment to competent authorities (criminal courts, psychiatric commission) and other measures to prevent similar violations in the future.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided concerning general measures.

39742/05 Baranowski Piotr, judgment of 02/10/2007, final on 02/01/2008
This case concerns the failure to examine promptly the applicant’s appeal against a decision of 12/12/2003 extending his detention on remand. The Warsaw Appeal Court took 45 days to deal with it (violation of Article 5§4).
Individual measures: The applicant was released on 07/03/2006. The European Court awarded him just satisfaction in respect of non-pecuniary damage.
Assessment: no further individual measure appears necessary.

General measures: Under Article 252§3 of the Code of Criminal Procedure, any appeal against a preventive measure (including remand in custody and extension of detention pending trial) must be examined promptly (see the Trzaska case, Interim Resolution CM/ResDH (2007)75, Section 4.2, in which a similar violation occurred before 01/09/1998, when the Code of Criminal Procedure entered into force). It seems that in this case the violation resulted from delay caused by the Warsaw Appeal Court.
Information is awaited on the publication and the dissemination of the European Court’s judgment to criminal courts, as well as on other measures to prevent similar violations in the future.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH) in the light of information to be provided on the payment of just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures, in particular publication and dissemination of the European Court's judgment.

22755/04 Chruściński, judgment of 06/11/2007, final on 06/02/2008
This case concerns a violation of the principle of equality of arms and of the adversarial principle in proceedings brought by the applicant to contest the lawfulness of his detention on remand. He was unable to obtain access to the case-file at the stage of preliminary investigation (violation of Article 5§4).
Between April 2003 and December 2004, for over 20 months during which the applicant was detained on remand, neither he nor his lawyer were allowed by the prosecutor to consult the case-file.
The European Court considered that during this period the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre-trial detention, while the prosecutor was familiar with the whole file.
Individual measures: In December 2004 the applicant and his lawyer were able to acquaint themselves with the case-file. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
Assessment: no further individual measure appears necessary.
General measures: According to Section 321§1 of the Code of Criminal Procedure, at the motion of the suspect or his or her counsel, the person in charge of the preliminary investigation, when finalising it, informs the suspect and the counsel of the final date for consulting the case-file.
Otherwise the issue of access to the case-file at the stage of preliminary investigation is governed by Section 156§5 of the Code of Criminal Procedure, according which parties and counsel shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the investigation. The refusal to grant access to the case-file may be subject to appeal to the higher body (Section 159).
Assessment: it seems that the violation in this case resulted from the prosecutors’ practice, which, although in conformity with the national law (Section 156§5 of the Code of Criminal Proceedings), was contrary to the Convention.
Information is awaited on measures aimed at avoiding further similar violations, including in particular the publication of the European Court’s judgment and its dissemination to prosecutors.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures, in particular publication and dissemination of the European Court's judgment.

- 2 cases against Portugal

18223/04 Cruz de Carvalho, judgment of 10/07/2007, final on 30/01/2008
This case concerns a violation of the applicant's right to a fair trial due to the failure to maintain equality of arms (violation of Article 6§1). In the context of a special procedure for payment injunction of pecuniary obligations of a limited amount (Decree-law No. 269/98), the applicant who, according to the law, might choose to appear personally at the hearing, was then prevented from pleading his cause and questioning his witnesses because he was not represented by Counsel, whereas the other party enjoyed all these rights.
The European Court found that, notwithstanding the applicable law and its interpretation by the Constitutional Court, the applicant had been placed at a significant disadvantage in relation to the other party; consequently the doctrine of equality of arms had been breached.

Individual measures: As a result of the proceedings challenged by the European Court, the applicant was ordered to pay €138,98 to an insurance company. Before the European Court, he sought compensation only for the non-pecuniary damages suffered. The European Court awarded him the full amount claimed (500 euros).
Assessment: in these circumstances, no further individual measure seems necessary.
General measures: Decision No. 245/97 of the Constitutional Court interpreted Articles 32 and 34 of the Code of Civil Procedure as allowing parties who decided, according to the legislation in force, not to be represented by a lawyer, to plead on both legal and factual issues.
Information is awaited on the publication of the European Court's judgment in this case and its wide dissemination to competent authorities to avoid similar violations in the future.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

40225/04 Feliciano Bichão, judgment of 20/11/2007, final on 20/02/2008
This case concerns the violation of the applicant's right to a fair trial due to the fact that memoranda prepared by the public prosecutor in criminal proceedings, in which the applicant had the status of assistente, before the appellate court and in an appeal to the Constitutional Court were not disclosed to him (violation of Article 6§1).
The European Court found that the right to a fair trial had been breached since the memoranda should have been communicated to the applicant, first because of his right to be informed and comment on all documents submitted in the proceedings and, secondly due to the weight of these documents in the courts’ decisions.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained.
Bilateral contacts are under way to evaluate the need for further individual measures.
General measures: According to Article 413§2 of the Code of Criminal Procedure (as in force at the material time), the memoranda in reply of the parties affected by the appeals must be transmitted to the applicant. In the present case, as the government acknowledged, the Code of Criminal Procedure was not respected since the applicant did not receive the public prosecutor’s memorandum replying to his appeal (§35 of the judgment). As regards the memorandum prepared in the appeal to the Constitutional Court, the Law on the Constitutional Court (Law No. 28/28 of 15 November) does not provide an obligation to disclose public prosecutors’ memoranda or opinions to individual applicants (§ 35 of the judgment).
Information is awaited on measures taken or envisaged, including legislative measures, to ensure that individual applicants are also guaranteed a fair trial before the Constitutional Court as regards disclosure of documents relevant to the final decision. The authorities are also invited to publish the European Court's judgment in this case and ensure its wide dissemination to competent authorities to avoid similar violations in the future, in particular as regards the failure to disclose memoranda in criminal proceedings.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures as well as individual measures if appropriate.

- 6 cases against Romania

22088/04 Bragadireanu, judgment of 06/12/2007, final on 06/03/2008
The case concerns the inhuman and degrading conditions under which the applicant was detained as from March 2004, due in particular to prison overcrowding and the lack of health facilities appropriate to the applicant’s condition (violation of Article 3).

The European Court noted that although the authorities were aware that the applicant’s medical condition was severe, he was detained in an ordinary prison, sharing a cell with others with no shower or warm water at his disposal and received no regular assistance related to his needs.
The case also concerns the excessive length of criminal proceedings which ended in February 2004 (7 years and 8 months within the competence of the European Court) (violation of Article 6§1).
Individual measures: When the European Court delivered its judgment the applicant was still in prison and it seemed that he had not been transferred to an individual cell.
Information is expected on measures taken or envisaged to guarantee the applicant detention conditions appropriate to his health situation.
General measures:
1) Violation of Article 3: The European Court noted that cumulative effect of overcrowding in large dormitories, a poor activity regime and inadequate access to washing facilities is detrimental to prisoners.
Information is expected on measures taken or envisaged to avoid similar violations resulting from inadequate detention conditions, in particular in situations involving detainees in poor medical condition.
2) Violation of Article 6§1: The case presents similarities to the Stoianova and Nedelcu group of cases (1020th meeting, March 2008, Section 4.2).

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on individual measures as well as on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

63610/00+ Forum Maritime S.A., judgment of 04/10/2007, final on 04/01/2008
This case concerns the impossibility to have an independent and impartial tribunal examine the order of dismissal issued by the prosecutor in 2000 with respect to the applicant company’s criminal complaint with civil-party application (violation of Article 6§1).
The European Court noted that a prosecutor did not fulfil the requirement of independence from the executive branch and that at the material time, the Code of Criminal Procedure provided no possibility of judicial appeal against an order of dismissal issued by a prosecutor.
The case also concerns the unfairness of the proceedings, neither the applicant nor his Counsel having had access to the criminal file (violation of Article 6§1).
The case finally concerns the excessive length of commercial proceedings which began in July 1997 and ended in April 2005 (7 years and 9 months for three degrees of jurisdiction) (violation of Article 6§1).
Individual measures: The European Court awarded the applicant company just satisfaction in respect of non-pecuniary damage sustained.
Clarification is awaited as to whether the applicant company may request reopening of the proceedings at issue.
General measures:
1) Independent and impartial tribunal: The case presents similarities to that of Grecu (Section 4.1).
2) Access to a prosecution file: The European Court noted that under the Code of Criminal Procedure and the doctrine, the criminal procedure during the prosecution phase was, at the material time, neither public nor contradictory. However, following the amendment of Article 173 of the Code of Criminal Procedure by the Law No. 281 of 24/06/2003, the lawyers of the civil party may be present during the course of all prosecution acts.
Assessment: No additional measure seems necessary.
3) Length of proceedings: The case presents similarities to the Nicolau group of cases (1020th meeting, March 2008, Section 4.2).

The Deputies decided to resume consideration of this item at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary, and to join it, at the same meeting, with the Nicolau group to supervise individual and general measures.

35097/02 Bozgan, judgment of 11/10/2007, final on 11/01/2008
The case concerns a breach of the freedom of association of the applicant association (the “Anti-Mafia National Guard”) due to the refusal by the Romanian courts, in 2002, to register it on the basis of a mere suspicion that the association intended to set up parallel structures to public prosecutors (violation of Article 11).
The European Court noted that the Romanian courts’ decision appeared arbitrary since the statute of the association indicated that it would pursue its activities in the framework of the existing legislation and would not substitute itself for state authorities (§23). In addition, before requesting registration, the association undertook no activity which might indicate that it had any anti-constitutional intentions (§24). Finally, the applicable law conferred on the Romanian courts the power to order the dissolution of an association if its aims were contrary to the law or at variance with those set forth in its articles of association. Consequently, the refusal to register the association even before it started its activities appeared disproportionate and thus not necessary in the democratic society.
Individual measures: The European Court noted that the finding of a violation constituted in itself sufficient just satisfaction for any damage sustained.
Assessment: Having regard to the direct effect of the European Court’s case-law in domestic law, no additional measure appears necessary, as the applicant may submit a new request for registration of the association.
General measures: The registration of associations is regulated in Order No. 26/2000 on associations and foundations. It seems that it was an isolated violation resulting from arbitrary application of this Order by domestic courts.
Assessment: Publication and dissemination of the European court’s judgment to relevant courts are therefore necessary, to avoid similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures, namely the publication and dissemination of the European Court’s judgment.

17309/02 Grozescu, judgment of 27/09/2007, final on 27/12/2007
The case concerns the unfairness of certain civil proceedings at appeal due to the hearing of the opposing party, in December 2001, without the applicant and his lawyer having been informed (violation of Article 6§1).
The European Court noted that the court of appeal, having reopened the oral part of the proceedings to hear the opposing party without informing the applicant, rendered a new judgment unfavourable to him.
Individual measures: The European Court noted that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained. Romanian law (Article 322§9 of the Code of Civil Procedure) provides the possibility of reopening civil proceedings in cases in which the European Court found a violation.
Assessment: no further measure appears necessary.
General measures:
Information is expected on current legislation and practice of civil courts with respect to oral hearings in appeal proceedings and measures taken or envisaged to avoid similar violations.
Publication and dissemination of the European Court's judgment among relevant courts and authorities are expected, to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided concerning general measures.

74785/01 Năstase-Silivestru, judgment of 04/10/2007, final on 04/01/2008
This case concerns the fact that the applicant, whose detention was ordered by a prosecutor on 24/11/2000, was not brought promptly before a judge but only after 18 days (violation of Article 5§3).
The case also concerns a violation of the applicant’s right to respect for her correspondence in that the authorities withheld her correspondence with her family at least for a certain time during her detention (violation of Article 8). The European Court noted that Instruction No. 901 of 10/05/1999 of the Ministry of Interior, the basis for withholding the applicant’s correspondence, was not available to the persons concerned therefore the interference at issue could not be considered as “foreseen by law” (§53).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
Assessment: no additional measure appears necessary
General measures:
1) Violation of Article 5§3: The case presents similarities to that of Pantea (1020th meeting, March 2008, Section 4.2).
2) Violation of Article 8: It should be noted that the issue of detainees’ correspondence with public institutions, judicial organs or international organisations has already been considered in the context of the Cotlet case (Section 6.2).
Information is expected on current regulations related to detainees’ correspondence with their families and their accessibility to the persons concerned. Publication and dissemination of the European Court’s judgment to relevant courts and institutions are also expected, to avoid similar violations.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

30658/05 Beian No. 1, judgment of 06/12/2007, final on 06/03/2008
The case concerns the unfairness of civil proceedings brought by the applicant in order to benefit under Law No. 309/2002 granting certain rights to those whose work during military service had been defined as forced labour. The Supreme Court of Cassation and Justice dismissed the applicant’s request despite having found in favour of similar requests in other cases, both before and since the applicant’s appeal. The European Court considered that the inconsistency of the case-law of the supreme judicial authority was counter to the principle of legal certainty (violation of Article 6§1).
The case also concerns discrimination suffered by the applicant, due to the inconsistency of the case-law, in comparison with others in similar situations who obtained recognition of their rights (violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage taken together. Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation.
Assessment: no further measure appears necessary
General measure: The European Court noted that the violations found in this case resulted from the inconsistent practice of the Supreme Court of Cassation and Justice.
Information is awaited on the current practice of the Supreme Court of Cassation and Justice in similar cases and measures taken or envisaged to avoid future violations. Publication and dissemination of the European Court’s judgment to the relevant courts are expected, to raise their awareness of the Convention's requirements as they result from this case.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

- 3 cases against the Russian Federation

- Cases concerning extradition
38411/02 Garabayev, judgment of 07/06/2007, final on 30/01/2008
656/06 Nasrulloyev, judgment of 11/10/2007, final on 11/01/2008
These cases concern the illegality and arbitrariness of the detention of the applicants pending extradition (violations of Article 5§1).
In the Garabayev case the European Court found that the applicant was arrested in September 2002 in breach of domestic law, as he was detained in Russia pursuant to a detention order issued by a prosecutor in Turkmenistan and the detention was not confirmed by a Russian court, contrary to the provisions of Article 466 of the Code of Criminal Procedure (CCP). Moreover, Russian law excludes, in unambiguous terms, the extradition of Russian nationals and the applicant’s nationality was known at the time of his arrest.
In the Nasrulloyev case the European court noted that the applicant’s placement in custody was ordered by a Russian court in August 2003 with no time-limit set for the detention. It concluded that the domestic authorities, when examining the applicant’s request for the determination of the lawfulness of his detention, had adopted inconsistent and mutually exclusive positions on the issue of the procedural provisions applicable to detainees awaiting extradition and that these provisions were neither precise nor predictable.
The cases further concern the absence of judicial review of the applicants’ detention pending extradition (violation of Article 5§4). In the Nasrulloyev case the European Court observed that no appeal was available to the applicant given that he was neither a suspect nor a defendant in criminal proceedings brought in the Russian Federation and the Russian authorities had declined to treat him as a party to criminal proceedings. In the Garabayev case, the Court noted that the appeal brought by the applicant in this respect had been dismissed for reasons of competence.
The Garabayev case also concerns the authorities’ failure to carry out any proper assessment of the risk of ill-treatment prior to the applicant’s extradition to Turkmenistan (violation of Article 3). The European Court in particular noted that no assurance regarding the applicant’s safety had been sought and no medical reports or visits by independent observers had been requested. The applicant had had no effective means of appeal in this respect (violation of Article 13). In this regard, the applicant was only informed of the decision to extradite him on the day of his transfer and had not been allowed to challenge it or to contact his lawyer.
The Garabayev case further concerns the lack of effective remedy in respect of his complaint that extradition would expose him to a risk of ill-treatment (violation of Article 13 in conjunction with Article 3). It also concerns a violation of the applicant’s right to be brought promptly before a judge (violation of Article 5§3), as it took the Russian authorities a month and 19 days to bring the applicant before a judge in the context of his detention on criminal charges in Russia on his return from Turkmenistan.
Individual measures:
1) Garabayev case: In February 2003 the applicant was returned to Moscow. The Russian government gave assurances to the Court that, in view of his undisputed Russian nationality, the applicant would not be extradited to Turkmenistan. In March 2004 he was released following criminal proceedings brought against him after his return from Turkmenistan. The European Court awarded to the applicant just satisfaction in respect of non-pecuniary damage sustained.
Assessment: No further individual measure appears necessary.
2) Nasrulloyev case: In April 2006 a domestic court quashed the decision to extradite the applicant to Tajikistan and ordered the applicant’s release. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Assessment: No further individual measure appears necessary.
General measures:
1) Unlawfulness of detention pending extradition and absence of judicial review: In its decision of 4/04/2006 in the case of Mr Nasrulloyev the Constitutional Court of Russia took the view that the provisions of Chapter 13 of the CCP (“Measures of restraint”) by virtue of their general character and position in Part I of the Code (“General Provisions”) applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests. It appears that in spite of this ruling, the relevant authorities do not comply with its case-law. Hence the need would appear to amend the provisions of the Code of Criminal Procedure in order to ensure the “quality of law” requirements and compliance with the Convention’s standards. Moreover, the provisions of the Code of Criminal Procedure do not seem to put at the disposal of a person detained with a view to extradition any procedure through which this person could initiate judicial review of the lawfulness of detention.

Information is therefore awaited on legislative initiatives envisaged to prevent new, similar violations.
2) Extradition in circumstances in which the authorities must have been aware that the applicant faced a real risk of ill-treatment
Information is awaited on any measures envisaged to ensure compliance by all relevant authorities, including domestic courts, with the requirements of Articles 3 and 13 in the framework of extradition procedures. In this respect, the authorities’ attention is drawn to Resolution ResDH(2001)119 in the case of Chahal against the United Kingdom and Resolution ResDH(2002)99 in the case of Ahmed against Austria.
3) Extradition of Russian nationals contrary to the provisions of domestic law
Clarification is awaited as to how domestic legislation and procedures avoid situations where a person is being extradited despite the existence of proof of his/her Russian nationality.
4) Failure to comply with the right of arrested persons to be brought promptly before a judge: In the Garabayev case the European Court found that the possibility of a court issuing an arrest warrant in absentia does not conflict with the provisions of the Convention. The European Court, however, noted that once the applicant was arrested, he should have been promptly brought before a judge.
Information is therefore awaited on the current practice regarding arrests based on warrants issued in absentia and any measures envisaged to avoid similar violations.
5) Publication and dissemination of the European court’s judgments
• Given the implications of these judgments on domestic practice at different levels, it would appear necessary to publish and disseminate them to the authorities concerned (prosecutors and courts) with an explanatory letter drawing their attention in particular to their obligation to align their practice with the requirements of the Russian law and of the Convention as they arise from the judgments.

The Deputies decided to resume consideration of these items:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

30160/04 Dzhavadov, judgment of 27/09/2007, final on 27/12/2007
The case concerns an interference with the applicant’s freedom of expression due to the refusal in 2003 by the Russian Ministry for the Press, Television and Radio Broadcasting and Mass Communications to register the applicant's periodical, on the ground that it was considered that its title might give rise to confusion. The refusal was based on the provisions of section 13(1)(2) of the Mass Media Act of 27/12/1991 which provides dismissal of an application for dismissal if it contains information which does not correspond to “real state of affairs”.
The European Court found that these provisions did not meet the “quality of law” standard under the Convention, as were not reasonably foreseeable for the applicant and allowed extensive interpretation by the authorities (violation of Article 10).
Individual measures: The European Court awarded just satisfaction in respect of the damage sustained.
Information is awaited as to whether it is open to the applicant to resubmit an application for registration of his newspaper.
General measures: Section 13(1)(2) of the Mass Media Act appears still to be in force. In view of the European Court’s findings an amendment of this Act seems necessary.
Information is awaited on measures, in particular legislative measured, envisaged to prevent similar violations. Publication and dissemination of the European Court’s judgment to competent administrative authorities and courts is also necessary, to draw attention to the requirements of the Convention in this respect.

The Deputies decided to resume consideration of this item at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 2 cases against Serbia

      - Cases concerning freedom of expression

27935/05 Filipović, judgment of 20/11/2007, final on 20/02/2008
13909/05 Lepojić, judgment of 06/11/2007, final on 31/03/2008
These cases concern unjustified interference with freedom of expression of the applicants, both local politicians, who were convicted of criminal defamation or insult and subsequently ordered in civil proceedings to pay substantial damages to the same plaintiff, a local mayor who was also the director of a state-owned company (violations of Art. 10).
In the case of Lepojić, the applicant was sentenced to suspended fine for criminal defamation in relation to his article, written in the run-up to the 2002 elections, alleging that the mayor had spent public funds on sponsorships and gala luncheons in a “near-insane“ manner.
In the case of Filipović, the applicant alleged in 2001, at a meeting attended by the Deputy Prime Minister, that the mayor might have been involved in embezzlement and tax evasion, in the absence of any conviction to that effect.
Both applicants were subsequently the object of civil proceedings, founded on the criminal verdicts against them, in which they were ordered to pay damages.
The European Court noted in both cases that although the applicants' statements contained some strong language and serious allegations, they were not “gratuitous personal attacks“ directed against the mayor and that the applicants clearly had legitimate reason to believe that the mayor might have been involved in the activities alleged (§77 and §58 of the Lepojić and Filipović judgments respectively).
The European Court noted in the Lepojić judgment that "bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts' dubious reasoning to the effect that the honour, reputation and dignity of the Mayor had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen" the interference in question "was not necessary in a democratic society" (§78 of the judgment).
Individual measures: In the Lepojić case, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The Government Agent requested the Municipal Court of Babušnica to delete the applicant’s conviction from his criminal record in accordance with the relevant provisions of domestic law.
Information is awaited as to whether the procedure of deletion has been completed.
In the Filipović case, the European Court dismissed the applicant’s claim for just satisfaction, which was submitted out of time. His criminal conviction for insult was not considered, rationae temporis.
Assessment: no further individual measure appears necessary in the Filipović case.
General measures:
• Information provided by the Serbian authorities (26/03/2008 and 17/04/2008): Bearing in mind the European Court’s findings in the present cases as well as Parliamentary Assembly Recommendation 1814 (2007) concerning decriminalisation of defamation, the Government Agent has initiated a review of national criminal legislation in order to bring it “into line with the case-law of the European Court”. The Government Agent also referred in his initiative to at least two other applications pending against Serbia before the European Court concerning alleged violation of freedom of expression. On 30/11/2007, the Government Agent submitted his initiative by letters addressed to the Serbian Parliament, Minister of Justice and appropriate Legislation Department.
The judgments were published in the Official Gazette of the Republic of Serbia, Nos. 111 of 04/12/2007 and 114 of 08/12/2007 respectively, as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The Agent forwarded the judgments with a note to the Ministry of Justice, the Supreme Court, the District Court of Pirot and Municipal Court of Babušnica. In addition, he published his comments on these judgments in the Paragraf legal journal and in the leading Serbian daily Politika on 22/11/2007.
Information is awaited on other possible measures taken or envisaged to ensure that domestic courts strike a fair balance in determining the amount of compensation in similar cases, where politicians are involved. In addition, further information is awaited on the outcome of the initiative concerning the decriminalisation of defamation.

The Deputies decided to resume consideration of these items:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of further information to be provided on individual measures, namely the deletion of the applicant’s conviction from his criminal record in the Lepojić case, and on general measures.

- 1 case against the Slovak Republic

57239/00 Kanala, judgment of 10/07/2007, final on 30/01/2008
This case concerns a violation of right to the peaceful enjoyment of possessions of the applicant, a businessman and co-owner of property (Article 1 of Protocol No.1).
Considering that the applicant’s inability to keep up the monthly repayments of a debt incurred to finance the acquisition and refurbishment of the property, in 1998 the bailiff ordered the sale of his share in the property by public auction. The auction was cancelled when the other co-owner exercised his right of pre-emption and acquired the applicant's share at a price fixed by an expert on the basis of price regulations then in force. This price was less than the actual value.
The European Court found that the contested measure amounted to a deprivation of possessions. By permitting the co-owner to acquire the applicant’s share in the property for less than its market value, the domestic authorities had deprived the applicant of a reasonable chance of having the property sold at its actual value and reimbursing a greater amount of his debt. Consequently no “fair balance” had been struck between the demands of the public interest (legal certainty) and the requirements to protect the applicant’s rights in the context of the enforcement proceedings.
Individual measures: The question of the application of Article 41 was not ready for decision.
General measures: The sale of the applicant’s property was carried out under the Executions Order of 1995 and Regulation No. 465/1991. As from 9/11/1999 the Executions Order of 1995 was changed to the effect that the lowest bid at a sale by auction of real property had to be equal to its market value (§§ 33 and 34 of the judgment). The Regulation No. 465/1991 was repealed with effect from 01/01/2004.
Moreover, in its opinion of 20/10/1997 the Supreme Court held that courts should take into account the general value of property (the price for which it could actually be sold).
Assessment: no further measure appears necessary.

The Deputies:
1. noted that the general measures had already been taken;
2. decided to resume consideration of this item once the Court had rendered its judgment on just satisfaction (Article 41) to examine any other measures possible required.

- 5 cases against Turkey

28582/02 Asan, judgment of 27/11/2007, final on 27/02/2008
This case concerns a violation of the applicant’s freedom of expression due to the seizure of his book following an order of the Istanbul State Security Court dated 21/01/2002, on the basis of a number of legal provisions including Additional Article 1§2 of the Law on the Press, No. 5680 (violation of Article 10).
The European Court expressed doubts as to the predictability of the seizure measure, in particular as the Law on the Press as applicable at the material time invoked no less than 40 articles of the Penal Code which meant that the order was far from clear. The Court further noted that the publication in question was a work of historical, cultural, ethnographic and linguistic research with no political intent, and that the seizure measure had been applied to the second edition, the first having been published without interference.
The Court therefore found that the interference was not necessary in a democratic society.
Individual measures: In a judgment dated 12/08/2003, the State Security Court acquitted the applicant on the ground that Article 8 of Law No. 3713, under which he had been judged, had been repealed. The seizure was lifted at the same time.
Assessment: no further individual measure appears necessary.
General measures: The Law on the Press was amended in June 2004: Article 25 of the new law, No. 5187 on seizures, distribution bans and sale of printed publications provides greater clarity as it now only invokes ten specific Penal Code provisions and provides that such measures can only be applied where an investigation or a prosecution has been opened.

Information is accordingly awaited as to whether the new provisions are capable of preventing new, similar violations. Information is also awaited on the publication and dissemination of the European Court’s judgment to competent authorities and courts to raise their awareness of the requirements of the Convention as interpreted by this judgment.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

.

74611/01+ Dilek and others, judgment of 17/07/2007, final on 30/01/2008, rectified on 28/04/2008
The case concerns the infringement of the applicants’ freedom of assembly and association, in that they were ordered by domestic courts to pay damages to the administration for taking part in a trade union action.
The applicants are civil servants working as toll-booth cashiers on the Bosphorus Bridge in Istanbul and are all members of a public-sector workers’ trade union. In March 1998 and February 1999, they left their work stations for a period of three hours as part of a “go-slow” protest, with the result that motorists were able to drive past the toll barriers without having to pay. The relevant administration brought actions against them for damages caused by lost tolls. Under Article 12§2 of Law No. 657, which provides that civil servants are liable for damages or losses they cause to the relevant administration intentionally or by negligence, the Turkish courts ordered the applicants to pay various amounts in damages.
The European Court noted that the legal basis for the application of Article 12§2 of Law No. 657 was Articles 26§2 and 27 of the same law, according to which it is forbidden for civil servants deliberately to resort to “go-slows” or to strike. Insofar as the measure had been intended to prevent disruption of the proper running of the public service, it pursued legitimate aims including the prevention of disorder. However, the following circumstances of the case did not justify a finding of tort or illegitimate action in the applicants’ trade union action. First, the go-slow protest had been agreed by the trade union and the authorities concerned had received advance warning. By taking part, the applicants had exercised their freedom of peaceful assembly. In addition, the decisions of the Turkish courts holding the applicants civilly liable had been given on account of their participation in the collective action organised by their trade union in order to defend their working conditions. Lastly, the Turkish government did not offer an explanation as to how the trade union would have been able to defend civil servants’ rights by other peaceful means, given the blanket prohibition of collective action. In those circumstances, holding the applicants civilly liable had not been “necessary in a democratic society” (violation of Article 11).
Individual measures: The European Court awarded the applicants just satisfaction in respect of pecuniary damages in an amount corresponding to what they had been ordered to pay the administration.
Assessment: given the circumstances of the case, it appears that no other consequence remains to be eliminated or remedied for the applicants.
General measures: The violation found in this case resulted from the domestic courts’ interpretation of Article 12§2 of Law No. 657 so as to characterise a peaceful trade union action with advance notice, as tort or illegitimate action. However, such interpretation may be changing, in line with the requirements of the Convention: the European Court noted that in December 2004, the Supreme Administrative Court of Turkey ruled that “the participation of a high-school teacher in a union activity, and his resulting absence without advance notice from his post at the school could not be subject to disciplinary punishment, nor withholding of 1/30th of his salary, on the grounds that this absence without notice could not be considered unjustified” (§36 of the judgment). This reasoning is particularly welcome as it departs from the judgments against the applicants in the present case.

Information is awaited on more examples, if any, of domestic case-law in line with the Convention’s requirements regarding trade union actions. In addition, the publication and dissemination of the present judgment to the relevant administrative and judicial authorities are expected. Information on any other general measures taken or envisaged is also expected.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information in to be provided on the dissemination and publication of the judgment as well as on any further general measures taken or envisaged.

1448/04 Zengin Hasan and Eylem, judgment of 09/10/2007, final on 09/01/2008
The case concerns the refusal of the authorities to exempt a state school pupil, whose family was of the Alevi faith, from mandatory lessons on religion and morals (violation of Article 2 of Protocol No. 1.
The applicants, Hasan Zengin and his daughter Eylem Zengin are followers of Alevism, a branch of Islam which has deep roots in Turkish society and history. Its religious practices differ from those of the Sunni schools in certain aspects such as prayer, fasting and pilgrimage. At the time the application was lodged, Eylem Zengin was a seventh grade pupil at a state school, and as such, she was obliged to attend classes in religious culture and ethics, which are compulsory subjects for Turkish primary and secondary schools under Article 24 of the Turkish Constitution and Article 12 of National Education Law No. 1739.
In 2001, Mr Zengin submitted requests to the Directorate of National Education and before the administrative courts for his daughter to be exempted from these lessons, pointing out in particular that no teaching was provided in those classes on his daughter’s faith. The requests for exemption were dismissed, most recently on appeal before the Supreme Administrative Court in April 2003.
In the course of the proceedings, the European Court examined the Ministry of Education’s guidelines for lessons in religious culture and ethics and the relevant school textbooks. This examination revealed that the syllabus in primary schools and the first cycle of secondary school as well as textbooks gave greater priority to knowledge of Islam than to that of other religions and philosophies. Although the Court explained that this in itself could not be viewed as indoctrination, it was appropriate to examine whether the information or knowledge was disseminated in an objective, critical and pluralist manner, given that attendance at these classes was likely to influence the minds of young children. The Court established that the Alevi faith had features distinct from the Sunni understanding of Islam which was taught in schools. In the “religious culture and morals” lessons, the religious diversity which prevailed in Turkish society was not taken into account. In particular, pupils received no teaching on the confessional or ritual specificities of the Alevi faith, although the proportion of the Turkish population belonging to it was very large. Certain information about the Alevis was taught in the 9th grade, but, in the absence of instruction in the basic elements of this faith in primary and secondary school, this was insufficient to compensate for the shortcomings in the teaching. Accordingly, the instruction provided in these classes could not be considered to meet the criteria of objectivity and pluralism, enabling pupils to develop a critical mind with regard to religious matters, nor to respect the religious and philosophical convictions of the parent of a pupil who belonged to the Alevi faith, on the subject of which the syllabus was clearly lacking.
The Court further examined whether appropriate means existed in the Turkish education system to ensure respect for parents’ convictions. The class in question was a compulsory subject, but a possibility for exemption had existed since 1990 for children of Turkish nationality whose parents belonged to the Christian or Jewish religion, provided they affirmed their adherence to one of those religions. According to the government, this possibility for exemption could be extended to other convictions if such a request was submitted. Nonetheless, whatever the scope of this exemption, the fact that parents were obliged to inform the school authorities of their religious or philosophical convictions made this an inappropriate means of ensuring respect for their freedom of conviction. In the absence of any clear text, the school authorities always had the option of refusing such requests. In consequence, the exemption procedure was not an appropriate method and did not provide sufficient protection to those parents who could legitimately consider that the subject taught was likely to give rise in their children to a conflict of allegiance between the school and their own values.

No possibility for an appropriate choice had been envisaged for the children of parents who had a religious or philosophical conviction other than that of Sunni Islam, where the procedure for exemption was likely to subject those parents to a heavy burden and to the necessity of disclosing their religious or philosophical convictions.
Individual measures: Ms Zengin is now of college age and no longer attends a state secondary school.
Assessment: under these circumstances, no further individual measure seems necessary.
General measures: The Court concluded that, with regard to religious instruction, by failing to meet the requirements of objectivity and pluralism and to provide an appropriate method for ensuring respect for parents’ convictions, the Turkish educational system was inadequate. The violation found originated in a problem related to implementation of the syllabus for religious instruction in Turkey and the absence of appropriate methods for ensuring respect for parents’ convictions. In consequence, the Court considered that bringing the Turkish educational system and domestic legislation into conformity with Article 2 of Protocol No. 1 would represent an appropriate form of compensation.
The Turkish authorities are invited to present an action plan for the execution of this judgment, taking into account the European Court’s specific indication of an appropriate general measure.
Publication and dissemination of the European Court’s judgment to the relevant authorities are also expected, so as to draw their attention to their Convention requirements as they arise from the judgment.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information on the dissemination and publication of the judgment as well as an action plan to be provided by the Turkish authorities.

*40998/98 Islamic Republic Of Iran Shipping Lines, judgment of 13/12/2007, final on 13/03/2008
The case concerns the seizure in October 1991 of a ship flying the Cypriot flag as well as its cargo on suspicion of arms smuggling. The ship was chartered by the applicant, an Iranian shipping company.
The European Court noted that in December 1991, following an investigation into the matter, the Turkish Ministry of Foreign Affairs confirmed that in fact the cargo transported by the applicant belonged to Iran and that its seizure could not be justified by national security concerns. The Court therefore considered that it had been unjustified to impound the vessel until December 1992, when ship and cargo were restored. It also took the view that the refusal of national courts to compensate the applicant company for the damage sustained imposed a disproportionate burden upon it (violation of Article 1 of Protocol No. 1).
Individual measures: The vessel and its cargo were released and the European Court noted that the applicant received pecuniary damages in subsequent arbitration proceedings (§ 115 of the judgment).
Assessment: under these circumstances, no further individual measure seems required.
General measures:
Information is awaited on measures taken or envisaged by the authorities, in particular the publication and dissemination of the judgment to judicial authorities.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on any general measures taken or envisaged, in particular the publication of the judgment and its dissemination to judicial authorities.

*70516/01 Dağtekin and others, judgment of 13/12/2007, final on 13/03/2008, rectified on 21/05/2008
The case concerns the unfairness of civil proceedings brought by the applicants to complain of the fact that the Ministry of Agriculture had renounced the applicants’ leasehold of agricultural land situation in the South-East, a measure taken in 1997 following a security enquiry. The courts rejected the applicants’ appeal even though the Ministry refused to disclose the documents on the basis of which the lease had been renounced.
The European Court held that the conclusions of the security investigation were not revealed to the applicants or the courts, and that the applicants had been deprived of sufficient safeguards against any arbitrary action on the part of the authorities (violation of Article 6§1).

Individual measures:
Information is awaited on possible individual measures envisaged or taken to remedy the violation found.
General measures: Under the last sentence of Article 22§3 of Law no 2577 on administrative procedure, no defence submission by the administration is taken into account by the courts if it is based on information or documents withheld on grounds of national security or vital interests of the state.
Assessment: This provision appears to be in line with the Convention’s requirements as it excludes this type of defence from administrative proceedings.
Information is awaited on the publication and dissemination of the European Court’s judgment to the judicial authorities.

The Deputies decided to resume consideration of this item:
1. at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided concerning payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on possible individual measures as well as the dissemination and publication of the European Court’s judgment.

- 2 cases against Ukraine

34786/03 Balatskyy, judgment of 25/10/2007, final on 25/01/2008
The case concerns a violation of the applicant’s right of access to a court due to the domestic courts’ failure to take a formal, final decision in the proceedings concerning the applicant’s unlawful transfer brought against his employer.
The first-instance court had initially dismissed his appeal on the ground that he had brought an identical action for reinstatement. Despite a finding at appeal that this dismissal was groundless and referring the case back to the first instance, no judgment was rendered. In June 2006 the applicant received an unofficial letter informing him that any further examination of his request would be pointless because it was identical to his application for reinstatement, rejected in 2002.
The European Court accordingly found that the applicant had been deprived of his right of access to a court, since the authorities had advanced no plausible explanation for the domestic courts’ failure to take a formal, final decision in relation to the applicant’s suit. (violation of Article 6§1).
Individual measures: The European Court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained. It appears from the judgment of the European Court that no formal decision has been taken to date in the applicant’s case.
Information is thus awaited on the state of the proceedings concerning the transfer case.
General measures: The Code of Civil Procedure of Ukraine provides two types of decisions which are to be taken by courts in proceedings: rulings and judgements (Art. 208). Courts deliver rulings when deciding, inter alia, to suspend or to close cases, not to consider a claim, and on other issues dealing with course of proceedings before it. A trial must be concluded by delivery of a judgment.
In the present case the district court, by not rendering a judgment, failed to comply with the national law in force.
Information is therefore awaited on measures taken or envisaged to prevent new, similar violations, in particular via the wide dissemination of this judgment to domestic courts, possibly accompanied with the explanatory note.
Information would also be useful on possible training measures to ensure that all judges strictly comply with their obligations resulting from the legislation in force and the Convention, as well as on further additional measures such as the judges’ disciplinary responsibility
Information also is awaited on translation and publication of the judgement.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

22750/02 Benderskiy, judgment of 15/11/2007, final on 15/02/2008
The case concerns a violation of the applicant’s right to a fair trial due to the domestic courts’ failure to address a substantial argument advanced by him, which might have been decisive for the outcome of compensation proceedings he brought against the “Inter-regional Centre for Clinical Lymphatic Surgery” in September 1998 (violation of Article 6§1).
The applicant, who was suffering from cancer of the bladder, was operated on at the “Inter-regional Centre for Clinical Lymphatic Surgery” and alleged that a gauze compress had been left in his bladder during the operation. A medical report requested by the domestic court established that the compress had most probably penetrated the applicant’s bladder during the operation, or this might have happened during post-operative treatment at home. The applicant thus requested the courts to rule on this issue. However, the courts neither granted that request nor commented in any way on the doctors’ statements.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
Information is awaited as to whether the applicant has requested reopening of the domestic proceedings.
General measures: The Code of Civil Procedure of 1963 (in force at the material time) provided comprehensive, full and objective examination of all circumstances of the case within the scope of a claim brought before a court (Article 62). It also provides that courts’ judgments should be lawful and well-founded. Courts should ground their judgments only on evidence which had been examined during the proceedings (Article 202).
The new Code of Civil Procedure of Ukraine in force since 1/09/2005 contains further improvements in this respect. In particular, Article 212 of the Code (“Assessment of evidence”) the Code provides in addition that courts shall examine the relevance, admissibility, trustworthiness of each item of evidence separately, and the sufficiency and correlation of evidence as a whole. The results of the court’s assessment of evidence shall be reflected in the judgment, which shall contain reasons for their acceptance or rejection. Article 213 of the Code further provides that a well-founded judgment is one delivered as a result of fully and comprehensively established circumstances – to which the parties refer when grounding their claims and objections – which are proved by evidence examined during the proceedings.
Failure by courts to comply with these obligations gives rise to an appeal including an appeal on points of law.
Information is therefore awaited on measures taken or envisaged to prevent new, similar violations in future, in particular on wide dissemination of this judgment to domestic courts, possibly accompanied by an explanatory note.
Information would also be useful on possible training measures to ensure that all judges strictly comply with their obligations resulting from the legislation in force and the Convention as well as on further additional measures such as the judges’ disciplinary responsibility.
Information also is awaited on translation and publication of the judgment.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on individual and general measures.

- 7 cases against the United-Kingdom

- Cases concerning investigations into the action of the security forces in the United Kingdom (1999-2001)
32457/04 Brecknell, judgment of 27/11/2007, final on 27/02/2008
34575/04 McCartney, judgment of 27/11/2007, final on 27/02/2008
34651/04 McGrath, judgment of 27/11/2007, final on 27/02/2008
34622/04 O’Dowd, judgment of 27/11/2007, final on 27/02/2008
34640/04 Reavey, judgment of 27/11/2007, final on 27/02/2008
These cases concern the lack of an effective investigation into the allegations made by a certain John Weir in 1999 concerning the involvement of members of security forces in the killing of the applicants’ next-of-kin in 1975 and 1976. An investigative response appears to have been commenced by the Royal Ulster Constabulary (“RUC”) following the Weir allegations. It would appear subsequently that the RUC investigation was acknowledged as failing to progress due to the need to interview Weir directly.

In November 2001 the case was transferred to the Police Service of Northern Ireland (PSNI), which is the successor of the RUC. In 2004 the case was transferred to the Serious Crime Review Team (“SCRT”) which carried out a further assessment and then referred it to the Historical Enquires Team (“HET”) where evidence was reviewed under the supervision of a Metropolitan Police senior officer. The HET did succeed in interviewing Weir who refused either to make a statement or to agree to give evidence in a United Kingdom court. The HET has now apparently reached the conclusion that there is insufficient evidence to proceed further, although it does not appear that any formal decision has yet been issued to that effect.
The European Court found that the investigative response to Weir’s allegations lacked the requisite independence in its early stages because it was the RUC which was itself implicated in those allegations as their own officers had allegedly been heavily involved. As to the subsequent steps in the investigation, the Court was satisfied that the Police Service of Northern Ireland (PSNI), which took over the case from the RUC, was institutionally distinct from its predecessor even though it inherited officers and resources. Furthermore, the applicants have not expressed any doubts about the independence of the teams which took over from 2004 (the SCRT and HET) (violations of Article 2 of the ECHR).
Individual measures:
Information provided by the United Kingdom authorities (01/04/2008):
1. The government has paid just satisfaction to the applicants in each case as awarded by the Court.
2. There is no obligation on the UK government to take any individual measures beyond payment of the just satisfaction. In these cases, the Court found a violation solely on the ground of lack of independence of the Royal Ulster Constabulary (RUC) during the initial stages of the investigation. However, as the Court has also acknowledged, there is no doubt that the institutions which took over the investigation form the RUC from November 2001 onwards (i.e. PSNI, SCRT and HET) were independent.
3. Furthermore, as regards the adequacy of the consequent steps taken in the investigation, “the Court is not persuaded that there have been any significant oversights or omissions. The key traceable witnesses have been interviewed, and the available evidence collected and reviewed. The ECtHR is not persuaded that the apparent errors or shortcomings of the RUC identified by the applicant (§55) can be regarded as rendering the investigative process inadequate when viewed as a whole” (Brecknell §79).
4. It is therefore impossible to go back in time and render the RUC independent i.e. restitutio in integrum cannot be achieved. However, the investigation since November 2001 has been carried out by an independent body: the PSNI. Everything has been done, as far as possible, to put the injured parties in the same situation they enjoyed prior to the violation of the Convention.
General measures:
1) Publication: The judgments were reported in the European Human Rights Law Review E.H.R.L.R 4, 450-451, the Times Law Report on 7/12/2007 (http://business.timesonline.co.uk) and the Northern Ireland News on 28/11/ 2007 (www.4ni.co.uk).
2) Further general measures: As set out above, the European Court found a violation of Article 2 solely on the ground of lack of independence of the RUC. The RUC no longer exists. The PSNI is now in place and the Court found no violation in respect of the PSNI. The United Kingdom authorities therefore consider that no further general measure is required.
Assessment: In the light of the above, the Secretariat considers that no further measures appear necessary in these cases.

The Deputies:
1. noted that no further measure seems to be required for the execution of these judgments;
2. decided to resume consideration of these items at their 1035th meeting (16-18 September 2008) (DH), with a view to examining the possibility of closing these cases.

13229/03 Saadi, judgment of 29/01/2008 – Grand Chamber
This case concerns the violation of the applicant’s right to be informed promptly of the reasons for his arrest (violation pf Article 5§2).
Upon his arrival at London Heathrow Airport, the applicant, an Iraqi Kurd, claimed asylum. On 2/01/2001 he was placed in detention in a special facility for asylum seekers, the reason for his detention being that his claim was treated according to a “fast-track” procedure. The detention lasted seven days.

The European Court noted that the first time the applicant was told of the real reason for his detention was through his representative on 5/01/2001, when he had already been in detention for 76 hours. The European Court held that this delay was not compatible with the requirement that such reasons be given “promptly”.
Individual Measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.
Assessment: no further individual measure appears necessary.
General Measures: The European Court’s judgment has been published in several law journals. Information has been provided by the government on improved information to asylum-seekers on their detention: that a revised form is being used to communicate “promptly” the reasons for detention in the “fast-track” asylum process.
• The information provided by the United Kingdom government is currently being assessed.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of the assessment by the Secretariat of the information provided on general measures.

1271/05 Gault, judgment of 20/11/2007, final on 20/02/2008
This case concerns the inadequate grounds given by the court of appeal to justify the applicant’s detention on remand pending retrial (violation of Article 5§3). The European Court noted that the applicant’s request for release on bail had been refused on the ground that she had been convicted of murder by a majority verdict and that a retrial would take place soon.
The European Court took the view that the matter of the promptness of retrial was not a relevant reason for refusing bail and noted that there was no greater risk of the applicant absconding before the re-trial and that the prosecution had made no objections to the applicant’s request to be released on bail (violation of Article 5§3).
Individual Measures: The applicant was acquitted and released from prison. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Assessment: no further individual measure appears necessary.
General Measures: The grant of bail in Northern Ireland is governed by common law rather than statute. Courts have a degree of discretion to grant bail, but are obliged to have regard to certain considerations (the attitude of the prosecution being one of the factors to be taken into account). It seems that this was an isolated violation resulting from the particular circumstances of the case.
Information has been provided by the authorities of the United Kingdom on publication and dissemination of the judgment of the European Court. This information is currently being assessed by the Secretariat.
Information is awaited on the legal situation concerning England and Wales and Scotland.

The Deputies decided to resume consideration of this item:
1 at their 1035th meeting (16-18 September 2008) (DH), in the light of information to be provided on the payment of the just satisfaction, if necessary;
2. at the latest at their 1043rd meeting (2-4 December 2008) (DH), in the light of information to be provided on general measures.

1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1028th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.


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