Ministers’ Deputies
Agenda

CM/Del/OJ/DH(2009)1059 Section 4.1 PUBLIC 19 June 2009

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1059th meeting (DH), 2-4 and 5 (morning) June 2009

- Annotated Agenda1
- Decisions

Section 4.1

Public information version

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SECTION 4 - CASES RAISING SPECIFIC QUESTIONS
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)

Action

For each case or group of cases, the Deputies adopted the decision presented in a ruled box.

SUB-SECTION 4.1 – SUPERVISION OF INDIVIDUAL MEASURES ONLY2

- 1 case against Austria

3138/04 Arbeiter, judgment of 25/01/2007, final on 25/04/2007
This case concerns a violation of the right to freedom of expression on account of the injunction imposed on the applicant under Article 1330§2 of the Civil Code for making defamatory statements in the print media in 2001 (violation of Article 10).
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damage.
Clarification is awaited as to whether the applicant is still prohibited by the injunction from making the statements in question.
General measures: The requisite measures have been taken (see the case of Wirtschaftstrend Zeitschriften-Verlagsgesellschaft m.b.H No. 2 (58547/00) (Section 6.2). The Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte, organise regularly training courses for judges and public prosecutors concerning the case law of the European Court on Article 10.
Assessment: In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of Article 10 of the Convention and the Court’s case-law will be taken into account by the competent authorities in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of clarification to be provided on individual measures.

- 3 cases against Belgium

- Case concerning freedom of expression
20477/05 Tillack, judgment of 27/11/2007, final on 27/02/2008
This case concerns a breach of the right to freedom of expression, due to searches and seizures carried out in the home and premises of the applicant, a journalist (violation of Article 10).
In early 2002, the applicant published two articles in a German weekly magazine Stern based on information from confidential documents from the European Anti-Fraud Office (OLAF). Suspecting the applicant of having bribed a civil servant to get these documents, OLAF opened an investigation to identify the informant; but the investigation was not successful. Hence, OLAF lodged a complaint against the applicant with the Belgian judicial authorities. In the proceedings opened following this complaint, on 19/03/ 2004 the applicant’s home and workplace were searched; almost all the applicant’s working papers and tools were seized and placed under seal (16 crates of papers, two boxes of files, two computers, four mobile phones and a metal cabinet). The applicant asked for the return of his belongings, but to no avail.
The European Court considered that although the searches in question had been provided in the Belgian Code of Criminal Procedure and pursued a legitimate aim, they had amounted to interference with the applicant’s right to freedom of expression and that such interference was not “necessary in a democratic society”. The Court noted, among other things, that it was evident that, at the time when the searches took place, their purpose had been to identify the source of the information reported by the applicant in his articles. The measures had therefore concerned the protection of journalistic sources. That being so, a journalist’s right not to reveal her or his sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of the sources, but is part and parcel of the right to information, to be treated with the utmost caution – all the more in the applicant’s case, where he had been under suspicion because of vague, uncorroborated rumours, as subsequently confirmed by the fact that he was not charged. The Court also took into account the amount of property seized.
Individual measures:
Information is awaited on the fate if the objects seized.

General measures: This case presents similarities with the case of Ernst against Belgium (judgment of 15/07/2003, section 6.2), in which the authorities reported that in April 2005, a law on the protection of journalistic sources was passed, making it illegal, apart from certain exceptions provided in the law, to seek such information, in particular through searches or seizures.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

      - Cases of length of a pre-trial investigation and of lack of an effective remedy

34316/02 De Clerck, judgment of 25/09/2007, final on 25/12/2007
13414/05 Wauters and Schollaert, judgment of 13/05/2008, final on 13/08/2008
These cases concern the excessive length of certain criminal proceedings, at the pre-trial investigation stage (violations of Article 6§1). The investigations at issue began in 1990 (De Clerck) and 1997 (Wauters and Schollaert) and were still under way when the European Court delivered its judgments.
The Court held that in this case, in view of the important professional and financial consequences for the applicants and their companies, the authorities should have acted with a particular diligence.
The case also concerns the absence of an effective remedy in this respect (violation of Article 13).
Individual measures:
Information appears necessary on the acceleration of the proceedings, in the light of the violations found and, in De Clerck, the “particular diligence” required by the European Court.
General measures: These cases present similarities to that of Stratégies et Communications and Dumoulin (Application 37370/97), in section 6.2 following the general measures adopted. In particular, a circular was sent to all prosecutors concerning new guidelines on the supervision of the efficiency of long preliminary investigations and evidence was given that Article 136, Section 2, of the Criminal Investigation Code is effective in accelerating investigations.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual and general measures.

- 40 cases against Bulgaria

30985/96 Hassan and Tchaouch, judgment of 26/10/00 - Grand Chamber3
39023/97 Supreme Holy Council of the Muslim community, judgment of 16/12/2004, final on 16/03/2005

61360/00 Popov Nedelcho, judgment of 22/11/2007, final on 22/02/20084

- Cases of length of criminal proceedings and of lack of an effective remedy5
37104/97 Kitov, judgment of 03/04/03, final on 03/07/03
35825/97 Al Akidi, judgment of 31/07/03, final on 31/10/03 rectified on 16/10/03
61662/00 Angelov Vasil, judgment of 12/04/2007, final on 12/07/2007
61596/00 Atanasov and Ovcharov, judgment of 17/01/2008, final on 17/04/2008
70843/01 Balabanov, judgment of 03/07/2008, final on 03/10/2008
39270/98 Belchev, judgment of 08/04/2004, final on 08/07/2004
50401/99 Dimitrov Vasko Yordanov, judgment of 03/05/2006, final on 03/08/2006
56762/00 Dimov, judgment of 08/03/2007, final on 08/06/2007
68356/01 Doinov, judgment of 27/09/2007, final on 27/12/2007
43231/98 E.M.K., judgment of 18/01/2005, final on 18/04/2005
44062/98 Hamanov, judgment of 08/04/2004, final on 08/07/2004
35436/97 Hristov, judgment of 31/07/03, final on 31/10/2003
32461/02 Hristov Ivan, judgment of 20/03/2008, final on 20/06/2008
67189/01 Ivanov, judgment of 24/05/2007, final on 12/11/2007
49163/99 Kalpachka, judgment of 02/11/2006, final on 02/02/2007
65051/01 Karagyozov, judgment of 25/10/2007, final on 25/01/2008
76965/01 Karmo, judgment of 06/12/2007, final on 06/03/2008

45964/99 Karov, judgment of 16/11/2006, final on 26/03/2007
50326/99 Kolev, judgment of 28/04/2005, final on 28/07/2005
58775/00 Mladenov, judgment of 12/10/2006, final on 12/01/2007
38106/02 Nalbantova, judgment of 27/09/2007, final on 27/12/2007
40896/98 Nikolova No. 2, judgment of 30/09/2004, final on 30/12/2004
44241/98 Nedyalkov, judgment of 03/11/2005, final on 03/02/2006
54178/00+ Osmanov and Yuseinov, judgment of 23/09/2004, final on 23/12/2004
50358/99 Pekov, judgment of 30/03/2006, final on 30/06/2006
48137/99 Popov, judgment of 01/12/2005, final on 01/03/2006
56337/00 Rezov, judgment of 15/02/2007, final on 15/05/2007
37355/97 S.H.K., judgment of 23/10/03, final on 23/01/04
55057/00 Sidjimov, judgment of 27/01/2005, final on 27/04/2005
58733/00 Sodadjiev, judgment of 05/10/2006, final on 05/01/2007
62594/00 Terziev, judgment of 12/04/2007, final on 12/07/2007
56308/00 Toshev, judgment of 10/08/2006, final on 10/11/2006
42987/98 Vachev, judgment of 08/07/2004, final on 08/10/2004
59913/00 Vasilev, judgment of 02/02/2006, final on 02/05/2006
61257/00 Vasilev and others, judgment of 08/11/2007, final on 08/02/2008
70728/01 Yankov No. 2, judgment of 07/02/2008, final on 07/05/2008
45563/99 Zhbanov, judgment of 22/07/2004, final on 22/10/2004

- 2 cases against the Czech Republic

23499/06 Havelka and others, judgment of 21/06/2007, final on 21/09/2007
This case concerns violation of the applicants' right to respect for their private and family life due to the placement of the children in public care on the grounds that the families' economic and social conditions were not satisfactory (violation of Article 8).
The first applicant's three children (the other applicants) had been taken into public care in March 2004 on the sole ground that the family's economic and social conditions were not satisfactory and the family was threatened with eviction from a flat owned by the municipality of Prague because of outstanding rent payments. The first applicant was evicted in the beginning of 2007.
The European Court noted that the fundamental problem for the first applicant was the housing for his family. Neither the applicant's capacity to bring up their children, nor the affection they bore them had ever been called into question. Therefore, the underlying problem was a lack of resources, which the Czech authorities could have made up for by means other than the total separation of the family, which seemed to be the most drastic measure and could be applied only in the most serious cases. Consequently, the Court considered that although the reasons given by the Czech administrative and judicial authorities had been relevant, they had not been sufficient to justify such a serious interference in the applicants' family life as the placement of the children in public institutions. The European Court reiterated the fact that a child could be placed in a more beneficial environment for his or her upbringing did not on its own justify a compulsory measure of removal from the care of the biological parents; there had to exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8.
Individual measures: In 2009, the applicant will turn 59 years and his children 15, 16 and 17 years.
• Information provided by the Czech authorities (on 5/12/2007, 3/03, 26/05, 21/11/2008, 19/03 and 09/04/2009): The children are still in public care; their placement is subject to judicial review at six-month intervals pursuant to Article 46§3 of the Family Law. The President of the competent court, the Prague 10 District Court, promised to take into account the European Court's judgment when reviewing the situation of the applicant's children.
The applicant is in regular contact with the children via telephone and he regularly sees them during holidays, when they are all staying together at the applicant's sister’s place. As the applicant can not afford the travelling expenses to visit the children for weekends, he was informed of the opportunity to apply for an extraordinary travel allowance but did not used this opportunity. For the moment he has not applied to the courts for the termination of the children's institutional care; he does not want to initiate such proceedings without the children’s unequivocal support and intends to find an appropriate housing first. This is difficult due to his economic situation and health problems. His only regular income is his partial disability pension and he has not yet succeeded in finding stable employment. Furthermore, the applicant seems unable to fulfil basic requirements of the Czech insolvency law for starting a procedure leading to the release of his debts.
In January 2008, a request for a rented flat in Varnsdorf, in the Decin area where the applicant’s sister lives, was dismissed on the grounds that he had previously been evicted for unpaid rent from a flat in Prague. His debts amount to 40 000 EUR (unpaid rent and interest rates, already accumulated at the time of the European Court’s judgment, see §40 of the judgment). In December 2008, Mr Havelka’s application for a municipal welfare flat was rejected the Municipal Council of Prague 15, mainly because of his important debts. A possibility exists to find him a temporary accommodation in one of the asylum houses: talks on this matter have already taken place between representatives of the Ministry of Labour and Social Affairs and the Prague Archdiocese Charity.
On 06/04/2009, a meeting took place between the Government’s Agent and the applicant’s representatives; it was agreed that the latter would try to approach the applicant again as they have not been in contact since several months and that the solution to his housing problem should reflect his current wishes.
Information is urgently awaited on steps taken to help the applicant to find suitable housing for him and his children. Information is also awaited on whether there has been an ex officio judicial review of the placement of the children in public care since 2005 and on the outcome of this review.
General measures: (No examination at this meeting): According to a recent analysis by experts from the Czech Ministry of the Interior, many children are placed in public care institutions because of the economic situation of their parents and only few children in these institutions are actually orphans or ill-treated children. No efficient procedure seems to be in place to reassess whether the economic situation of the family has improved; the average stay of the children in the public institution is 14,5 years.
Assessment: there seems to be a systemic problem concerning the placement of children from families with a difficult economic situation in public institutions.
Measures taken:
a) Dissemination: A translation of the European Court's judgment was disseminated to socio-legal protection agencies. The judgment was also presented to the Constitutional Court judges at their plenary session.
b) Amendments to Law on Socio-Legal Protection: Since 1/06/2006, this amended law imposes on the competent public authorities a duty to provide parents immediate and comprehensive assistance with a view to effectively reuniting the family following removal of children from their care. This task involves, among others, a duty to assist the parents in applying for financial and other kinds of material benefits to which they are entitled to within the scheme of state social support (new Section 12§2 of the Law).
Measures envisaged (information received from the Czech authorities at a bilateral meeting on 24/10/2008): The initially envisaged creation of a National Office for Employment and Social Administration to improve the overall situation in the field of family policy has been dropped. Reflections are ongoing on alternative measures, the reflection period will be completed by the end of 2009.
Information is awaited on further measures to address the systemic problem. Furthermore, information would be useful on the follow-up mechanism that takes effect after the placement of children to establish whether the conditions for public care still exist; clarification is awaited in this context on the scope of Article 46§3 of the Family Code, which provides for regular review of the placement of children in public care).

The Deputies decided to resume consideration of this item:
1. at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual measures,
2. at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.

995/06 Andĕlová, judgment of 286/02/2008, final on 29/09/2008
The case concerns the violation of the applicant’s right to respect for her family life due to the authorities’ failure to display special diligence to ensure respect for her visiting rights in respect of her daughter, born in 1994, so as to enable her to re-establish contact with her (violation of Article 8).
Following the applicant’s separation from her husband and the father of their daughter, custody was granted to the father in November 2001. Interim measures adopted in April 2002 and August 2003 granted the applicant the right to fortnightly visits on Wednesday afternoons and every other weekend. However, due to the father’s obstruction and the authorities’ failure to enforce these decisions, the applicant was deprived of any contact with her daughter between April 2002 and March 2004. Since April 2004 monthly contacts had been organised between the applicant and her daughter at a child psychologist’s office, in the presence of the ex-husband and the psychologist.
The European Court noted in particular that these meetings between the applicant and her daughter did not take place in the conditions laid down in the interim measure of 2003, nor had the domestic courts adopted a new interim measure which responded to the applicant’s objections. It also noted that the applicant’s upbringing capacities had never been disputed, that the experts had on several occasions underscored the importance of the child’s remaining in contact with both her parents, and that the passage of time had had adverse consequences for the applicant.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
• Information provided by the Czech authorities (letters of 16/01,23/01 and 02/02/2009): In September 2006, the child psychologist who had carried out a family therapy since 2004 stated that the applicant’s daughter was ready to meet her mother without the presence of other persons. By a judgment of 11/10/2006, final on 28/11/2006, the Havlíčkův Brod District Court fixed the applicant’s visiting rights in respect of her daughter; according to the judgment, the applicant should meet her daughter one day every two weeks. Since then no new motion to the court or request for assistance have been lodged.
According to the reports (of 28/04, 29/10/2008 and 13/01/2009) drawn by the Havlíčkův Brod child welfare authority on the basis of interviews with the parents et the child as well as on its direct observations, since winter 2006, contacts have been taking place regularly, almost every week, on the basis of direct arrangements between the mother and the daughter who is now 15 years old. Their meetings are trouble-free; the applicant declared she was happy to keep regular contacts with her daughter and respects the latter’s wish concerning the extent of the contacts. She admitted that she would like to spend whole week-ends with her daughter but does not want to push her nor address the courts.
The latter information emerges also from the observations submitted (on 12/05/2009) by the applicant’s representative before the European Court, who asserts that the applicant meets her daughter once every two weeks and that the latter is under the hold of her father.
Assessment: In these circumstances, no individual measure appears necessary.
General measures (No examination at this meeting): see the Reslová group (7550/04, Section 4.2).

The Deputies decided to resume consideration of this item at the next examination of the Reslová group of cases.

- 3 cases against France

23241/04 Arma, judgment of 08/03/2007, final on 09/07/2007
This case concerns a violation of the applicant’s right of access to a court in 2003 (violation of Article 6§1). The applicant was manager and owner of a commercial company which was placed in judicial liquidation by a first-instance commercial tribunal. Accordingly the applicant lost the right to act in the name of the company. Under the law applicable at the material time (reformed in 2005), she was not entitled to lodge an appeal in her own right against the liquidation. She nonetheless attempted to do so, but in vain. In fact she might have applied for the designation of an ad hoc nominee to appeal on her behalf, but the European Court expressed doubts as to whether this would actually have been possible given the time-limit of 10 days provided by law.
In the European Court’s view, had the applicant been able to appeal against the liquidation and adduce evidence to the effect that she was in a position to pay the company’s debts, this would have been in the interest both of the company and of the applicant herself, in view of the grave accusations against her personally.
Individual measures: Regarding alleged pecuniary damage, the Court said that it was not in a position to speculate as to what the result of the proceedings would have been in the absence of the violation of Article 6§1 of the Convention.

It awarded just satisfaction in respect of non-pecuniary damage. The delegation indicated that from its point of view, no individual measure was necessary.
The examination of this information is under way.
General measures: Law No. 2005-845 of 26 July 2005 abrogated the legislative provision (former Article L 622-9 of the Commercial Code) which prevented the manager of a commercial company in a situation similar to the applicant, to lodge appeals, and replaced it by a new provision making this possible (Article L 641-9 of the Commercial Code: the debtor may act and exercise the rights and actions for which the liquidator or administrator is not competent, if one has been appointed). In its judgment, the Court noted (§34) that this legislative work clearly demonstrated Parliament’s wish to put an end to the practical difficulties encountered by company officials in appealing on behalf of indebted companies by granting former managers the right appeal against bankruptcy judgments, thus strengthening the “rights of defence”. This reform restores a balance in favour of indebted companies and their managers by putting an end to a restriction detrimental to their right of access to a court.
Assessment: No other measure seems necessary.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the information provided on individual measures.

11950/02 Tedesco, judgment of 10/05/2007, final on 10/08/2007
This case concerns an infringement of the right to a fair hearing (violation of Article 6§1) on account of the presence of both the Rapporteur and the Government Commissioner at the deliberations of the Regional Audit Commission of Alsace, which ruled on the Alsace Regional Council's accounts for the financial 1980s years 1987 to 1991. At the end of these proceedings, the company RMR - represented by the applicant - which in the late 1980s was involved in the “Rhénania 2000” project, was ordered to pay a deficit assessed at 944 280 FF (143 954,56 euros) and a fine of 20 000 FF (3048,95 euros).
The European Court held that the nature and the scope of the tasks of the Rapporteur - who largely responsible for referring the case to the Regional Audit Commission and took part in drawing up the complaints against the applicant - might give rise to objectively justified doubts on the applicant's part concerning the Rapporteur's impartiality during the deliberations. Moreover the Court, on the basis of its case-law in the Kress case, held that the presence of the Government Commissioner in the deliberations of the Regional Audit Commission was not compatible with Article 6§1 of the Convention.
Individual measures: The European Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained.
As regards the damage sustained on account of the fine imposed and to the payment of the deficit, the European Court considered it could not speculate as to the outcome of the proceedings had there not been a breach of the Convention.
The applicant's lawyer indicated by letter of 16/10/2008 that proceedings to obtain enforcement of the judgment given in the impugned proceedings were still pending. Subsequently, by letter of 03/02/2009, the French authorities provided further information. Thy indicated in particular that from their point of view, the European Court’s judgment does not call into question the merits of the domestic decisions.
The examination of this information is under way.
General measures: Law No. 2001-1248 of 21/12/2001 on Regional Audit Commissions and Audit Courts, and Decree No. 2002-1201 of 27/09/2002 provide that when considering fines for ultra vires acts, the court “deliberates in the absence of the Rapporteur”. The same Decree moreover provides that “the Government Commissioner may attend sittings of chambers and sections and make verbal observations. He may not take part in the deliberations”.
Assessment: No further measure seems necessary.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the information provided concerning the individual measures.

51360/99 Marschner, judgment of 28/09/2004, final on 28/12/2004
This case concerns the excessive length of three sets of criminal proceedings against the applicant and of one set of administrative proceedings concerning civil rights and obligations (violations of Article 6§1). The first two sets of criminal proceedings began in 1996 and the third in 1997 (respectively 8½ years, more than 7 years and 2 months and 7½ years); the first and the third sets of proceedings were still pending when the European Court gave its judgment. The administrative proceedings began in 1999 and were also still pending at the date of the judgment of the European Court (5 years and 4 months).

Individual measures: The third set of criminal proceedings was closed by a judgment of the Paris Court of Appeal of 21/01/2004, which has subsequently become final. According to the latest information provided by the authorities concerning the first set of criminal proceedings, begun in 1996, would assuredly be closed very shortly (conviction on 7/03/2007 by the Paris Tribunal de Grande Instance; judgment of the Paris Court of Appeal on 08/04/2008; hearing before the Cour de cassation on 09/05/2009.
Concerning the administrative proceedings, they were closed by a judgment of the Conseil d’Etat of 7/02/2008.
Assessment: No further measure appears necessary.
General measures:
1) Length of criminal proceedings: This case presents similarities to that of Etcheveste and Bidart, closed by Final Resolution CM/ResDH(2007)39, following measures adopted to avoid excessive length of criminal proceedings, in particular at the investigatory stage (inter alia, as from the entry into force of Law No. 2000-516 of 15/06/2000, judicial inquiries are subject to a proceedings schedule and new rights have been granted to parties to avoid extension of proceedings.
2) Length of administrative proceedings: This case presents similarities to that of Raffi, closed by Final Resolution CM/ResDH(2008)12, following measures adopted to avoid excessive length of proceedings before administrative courts (among others recruitment of staff, in particular judges, procedural measures etc.).
Assessment: No further measure appears necessary.

The Deputies decided to resume consideration of this item once certain questions concerning the payment of just satisfaction have been resolved, with a view to examining the possibility of closing it.

- 3 cases against Greece

9029/05 Kampanellis, judgment of 21/06/2007, final on 21/09/2007
The case concerns the violation of the principle of the presumption of the applicant's innocence in that in December 2004 the Indictment Division of the Athens Court of Appeal, when ruling on his application for release on bail, used terms amounting to a statement of the applicant’s guilt despite the fact that the criminal proceedings against him were still pending (violation of Article 6§2).
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. The applicant was released in January 2005, his detention having reached the maximal length authorised by the Constitution. The criminal proceedings against him were still pending when the Court delivered its judgment.
Information is awaited on the outcome of these proceedings.
General measures: This case presents similarities to that of Diamantides No. 2 (Manios group, Section 4.2), in which the Greek authorities sent out the judgment of the European Court to the relevant authorities.
Assessment: No further general measure appears necessary.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010 in the light of information to be provided on individual measures.

14263/04 Rompoti and Rompotis, judgment of 25/01/2007, final on 09/07/2007
The case concerns the administrative authorities’ failure to comply with a final judgment of the Athens Administrative Court issued in 2003 (violation of Article 6 §1).
The European Court noted in particular that, instead of proceeding with the execution of the judgment as soon as it became final, the authorities - taking about seven months to do so - requested the applicant to supply a long list of documents of which they should have been in possession themselves.
Individual measures:
The authorities are invited to provide information as to the enforcement of the domestic judgment.
General measures: The general measures to prevent similar violations have already been adopted in the Hornsby group of cases (18357/91), which was closed by Resolution ResDH(2004)81.

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010 in the light of information to be provided on individual measures, namely the enforcement of the domestic judgment.

68138/01 Zazanis and others, judgment of 18/11/2004, final on 30/03/2005
This case concerns the failure by the municipality of Loutraki to comply with a judgment of the Council of State given in 2000, by which the latter had set aside the administration's tacit refusal (on grounds of incomplete information) to grant a building company permission to cut down trees with a view to the construction of a building on land owned by the three applicants. The Council of State, considering that the file submitted had been complete, referred it back to the administration for a decision. The European Court noted that the authority's imposition of new conditions subsequent to the above- mentioned judgment, especially an ad hoc modification of a construction coefficient, amounted to refusal to comply with the judgment. Moreover, the Minister of Environment's decision of 2003 to reclassify the land in question as a “public use area” was tantamount to expropriation, rendering execution of the Council of State's judgment pointless (violation of Article 6§1).
The case also concerns the lack of an effective domestic remedy whereby the applicants might secure the execution of the judgment (violation of Article 13).
Individual measures:
• Information provided by the Greek authorities (letters of 02/01/2006 and 07/02/2007): Proceedings for the expropriation of the applicants' land have been brought by the competent local authorities. On 09/11/2005 there was a hearing before the First-Instance Court of Corinth to set the unit price for the applicants' compensation. This court delivered judgment No. 86/2006 against which the applicants have appealed to the Tripoli Court of Appeal. A hearing was scheduled for 17/02/2007.
More information is awaited on the outcome of these proceedings.
Finally, it is to be noted that the European Court only awarded the applicants just satisfaction in respect of non-pecuniary damages. With regard to pecuniary damages, the applicants have reserved their right to lodge a new application with the Court for a violation of Article 1 of Protocol 1 (§51 of the judgment).
General measures: See ResDH(2004)81 on the Hornsby case and others (18357/91).
The European Court's judgment has been promptly translated and published on the site of the State Legal Council (www.nsk.gr).

The Deputies decided to resume consideration of this item at the latest at their 1st DH meeting in 2010, in the light of further information to be provided on individual measures, namely the outcome of the pending proceedings.

- 2 cases against Italy

30595/02 Bove, judgment of 30/06/2005, final on 30/11/20056

30961/03 Sannino, judgment of 27/04/2006, final on 13/09/20067

- 2 cases against Lithuania

11529/04 Baškienė, judgment of 24/07/2007, final on 10/12/2007
The case concerns the violation of the applicant’s right of access to a court and the excessive length of civil proceedings, as domestic courts failed to decide on the applicant’s claims after more than seven years of proceedings (double violation of Article 6§1).
In 1996 the applicant initiated a shareholder action against a company of which directors were subject to criminal proceedings for fraud and embezzlement. Considering that the applicant’s interests were at stake in both sets of proceedings, the domestic courts joined them together. Ultimately, in 2003 the courts convicted the directors but found no causal link between their convictions and the applicant’s interests as a shareholder. As a result, the courts left her civil claims unexamined, finding that she could always pursue them through separate civil proceedings.
The European Court noted that the applicant’s civil claims had been joined to the criminal proceedings at the initiative of the domestic courts. The applicant thus could not have reasonably been expected to bring civil proceedings independently of the criminal case. The Court was particularly struck by the fact that the applicant had to wait more than seven years to be finally told that it was not appropriate to examine her civil claims along with the criminal case (§81 of the judgment).

Individual measures: The European Court considered that “the applicant may be considered to have suffered some non-pecuniary damage as a result of the breach of her rights which cannot be compensated by the Court’s finding of a violation alone”. The proceedings being closed, no further individual measure seems necessary in respect of their length.
Information provided by the Lithuanian authorities (20/11/2008): The applicant brought a civil action before the Vilnius Regional Court asking for damages resulting from the fact that her civil claims had never been examined by domestic courts. The applicant’s case was rejected on the ground that she had already been granted just satisfaction by the European Court.
Assessment: It appears that the just satisfaction awarded by the European Court covers only the non-pecuniary damages suffered by the applicant. However, the applicant’s civil claims still remain unexamined by the domestic courts.
Information is awaited on any individual measures that the authorities deem appropriate under these circumstances, to give the applicant proper redress.
General measures:
1) Right of access to a Court:
Information provided by the Lithuanian authorities (20/11/2008): The European Court’s judgment has been translated into Lithuanian and placed on the website of the Ministry of Justice. It was sent out to the relevant state authorities involved in the present case as well as to all judicial authorities together with an explanatory note on the violation found.
Assessment: It seems that the publication and dissemination measure would be sufficient to prevent similar violations.
2) Excessive length of proceedings: General measures have already been taken, see the case of Girdauskas (Resolution CM/ResDH(2007)127).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

      - Case concerning the violation of the right to a fair hearing on account on criminal conviction following active incitement by state agents

10071/04 Malininas, judgment of 01/07/2008, final on 01/10/2008
The case concerns the violation of the applicant's right to a fair hearing: in 2003 the applicant was found guilty of drug trafficking following active inducement by state agents by way of a “criminal conduct simulation model” (violation of Article 6§1).
Relying on the criteria established in the case of Ramanauskas, the European Court found in the present case that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity and exercised an influence such as to incite the commission of the offence. There was no evidence that the applicant had committed any drug offences beforehand. It also appeared that the relevant evidence regarding the purported suspicions about the applicant's previous conduct was not fully disclosed to him before the trial court and was not therefore tested before it in an adversarial manner. Finally, it was the state agent who took the initiative when he first approached the applicant, asking were he could acquire illegal drugs (§§36-37).
Individual measures: The applicant was serving a custodial sentence at the time of lodging his application (§6). The European Court considered that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. It further stressed that a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (§§42-43 of the judgment).
Information is awaited on the current situation of the applicant and on possible retrial or reopening of this case before domestic courts.
General measures: This case presents similarities to that of Ramanauskas (74420/01Section 6.1), in which general measures have been taken.
The judgment of the European Court in this case was translated into Lithuanian and placed on the official website of the Ministry of Justice (www.tm.lt). It was also disseminated to judicial institutions.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

- 1 case against the Netherlands

60665/00 Tuquabo-Tekle and others, judgment of 01/12/2005, final on 01/03/20068

- 2 cases against Poland

8677/03 P.P., judgment of 08/01/2008, final on 08/04/2008
This case concerns the violation of the applicant’s right to respect for family life due to the non-enforcement of decisions with respect to the return of his daughters to Italy and his visiting rights (violation of Article 8). The applicant, an Italian national, was married to a Polish national, K.P. They had two daughters, A and B, born in 1992 and 1996 and lived in Italy. In the summer of 1999 K.P. took her daughters on holiday to Poland and filed an application for divorce. In September 1999 the applicant instituted proceedings on grounds of the Hague Convention. On 17/11/1999 the Poznan District Court granted him visiting rights and on 05/01/2001 allowed his application for the return of the children and ordered K.P. to return them to the applicant, considering that she had unlawfully abducted them. This decision became final and enforceable in June 2001. Subsequently the applicant requested its enforcement, but K.P. failed to comply with the decision and hid the children, despite the attempts of the bailiff, guardians assisted by police officers and the representative of the Italian embassy. A guardian’s request for instituting criminal proceedings against her was dismissed in August 2003. During this period, the applicant did not come to Poland, as in January 2002 an arrest warrant was issued against him, due to non-payment of child support ordered in the divorce proceedings. This warrant remained valid until March 2005.
On 03/04/2003 the guardians found the children, but due to the A’s strong resistance they called for a medical examination and decided not to enforce the court order. K.P. remained in hiding with the children until September 2003. The applicant eventually met his daughters on 27/03/2005. On 07/06/2005 the Poznan District Court quashed the decision of 05/01/2001 and decided not to return the children to the applicant, considering that their return would expose them to psychological harm or otherwise place them in an intolerable situation. It took note in particular of the girls’ assimilation in Poland and their strong emotional bonds with their mother.
The European Court noted that even though the authorities did finally find the children on 03/04/2003, the circumstances were such as that they could not remove them. Even though the difficulties in finding the children were created by the resistance of their mother, the lapse of time was to a large extent caused by the authorities’ own handling of the case (courts, bailiffs, guardians and also the prosecutor who discontinued the criminal proceedings instituted against K.P.). The European Court concluded that the Polish authorities failed to take promptly all the measures that could reasonably be expected to enforce the return order and consequently to secure the applicant’s visiting rights. It pointed out in particular that the lack of contact between the applicant and his children was mainly caused by the authorities’ failure to find the children hidden by K.P. and by the arrest order which had been issued against the applicant and was upheld for over three years and which had made it more difficult for him to come to Poland.
Individual measures: Since September 2003, the children have been living in K.P.’s father house in P., where they attend school (§43 of the judgment). The decision of the Poznan District Court of 07/06/2005 is final. However, the case was simultaneously dealt with by the Italian courts. On 24/02/2005 and 28/11/2005 the Venice Court granted the applicant sole custody of A. and B. and deprived K.P. of her parental authority. The decision is final (§ 55 of the judgment).
• Information provided by the Polish authorities: The applicant’s visiting rights had been fixed provisionally in the decision of the Poznan District Court of 15/04/2005 (see § 49 of the judgment), in the framework of the proceedings concerning the children’s return, based on the Hague Convention. The terms of the exercise of the visiting rights were confirmed by a judgment of the Poznan Regional Court of 22/01/2007. According to this judgment the applicant may see his daughters at their place of residence and take them outside it as long as they do not oppose and their mother has been informed one week before his arrival in Poland. So far the applicant has not requested the assistance of the Ministry of Justice in executing this judgment.

On 26/02/2008 the Ministry of Justice received a note from the Italian Embassy, calling upon the Polish authorities to take measures to ensure that the applicant enjoys fully his visiting rights and spend holidays with his daughters in Italy. On 10/03/2008 the Ministry of Justice replied that the applicant met his daughters for the last time on 27/05/2005 and since then had contacted them only by telephone. It also informed the applicant that he may lodge a request for the extension of his visiting rights, clearly indicating in which form they should be carried out and that he should also apply to be allowed to receive his daughters in Italy during holidays.
Moreover, on 19/05/2008 the Ministry of Justice informed the Italian Embassy that if the mother were to hinder the applicant’s contacts with his daughters, he should lodge a motion under Article 1050 of the Code of Civil Proceedings, which concerns the enforcement of court decisions on parental rights of access. Under Article 1050, Section 1, according to which if a debtor fails to comply with the obligation to take measures which cannot be taken by any other person, the court may fix time-limits for complying with this obligation on pain of a fine. The Ministry also indicated which court would be competent to examine such a motion and, in addition, that the applicant may lodge a motion on the basis of Article 21 of the Hague Convention (application to make arrangements for organising or securing the effective exercise of rights of access).
Besides that on 3/09/2008 the Ministry of Justice answered a letter from the European Union Commissioner for Justice, Freedom and Security of 5/08/2008, informing him of the legal avenues available to the applicant to amend the judgment of the Poznan Regional Court of 22/01/2007 and that the applicant had lodged no further complaint or request.
Information provided by the applicant’s counsel (letters of 24/09/2008 and 25/11/2008): Since the decision of the Poznan District Court of 15/04/2005 the applicant has tried to visit his daughters several times. On 14/10/2007 he saw the younger daughter for one hour in a commercial centre. Since then he wanted to meet his daughters for Christmas in 2007 and spend the winter holidays with them in Italy in January 2008, but the mother and her family opposed it. He has visited Poland several times to see his daughters, but to no avail. He also complained to the police about the behaviour of the mother and her family, but there has been no follow-up. He speaks sometimes with the younger daughter on the telephone, but their conversations are limited due to linguistic problems and the mother’s interference.
On 07/07/2008 the Italian Ministry of Justice wrote to the Polish Ministry of Justice, asking the latter to help the applicant in the exercise of his visiting rights. The letter specified that the applicant wanted to host his daughters in Italy during the summer and the Christmas break of 2008 as well as one week in the wintertime in 2009, without their mother’s presence. He was willing to pay their travel expenses from Warsaw to Venice, while the Italian Embassy could take care of the girls’ journey from Poznan to Warsaw.
By letter of 11/08/2008, the Polish Ministry of Justice answered its Italian counterpart’s letter of 07/07/2008, stating the following:
- the Hague Convention no longer applicable to the elder daughter since she has already reached the age of 16;
- the courts are competent to modify the applicant’s visiting rights,
- the applicant may lodge a request for the extension of his visiting rights by the District Court in Poznan (himself or by a lawyer), clearly indicating how they should be exercised (day, hour, venue, etc.). He may ask the court to order the mother not to hinder the exercise of these rights. The Ministry also informed the applicant of the formal requirements that should be met in this respect (documents to be submitted and fees).
The applicant asks the Committee of Ministers to ensure the proper execution of this judgment of the European Court. His lawyer opposes the initiation of new proceedings, as he is of opinion that they would concern facts that have been already subject to the European Court’s assessment in its judgment.
Bilateral contacts are underway to clarify the scope of individual measures in this case and the applicant’s situation.
General measures (no examination at this meeting): This case presents similarities to that of H.N. (77710/01) (see the Podbielski group of cases, Section 4.2), in which measures have already been taken (publication and wide dissemination).
• However, due to the peculiar circumstances of this case, information is awaited on the publication of the European Court’s judgment and its dissemination to competent authorities (in particular criminal courts, prosecutors, guardians and bailiffs).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of the outcome of bilateral contacts on individual measures and information to be provided on general measures.

34049/96 Zwierzyński, judgment of 19/06/2001, final on 19/09/2001 and of 02/07/2002, final on 06/11/2002 (Article 41), revised on 06/03/2007, final on 24/09/2007
The case concerns the excessive length of certain civil proceedings lodged by the State Treasury in 1992 and aiming at acquisition, through adverse possession of title of some property illegally expropriated in 1952, at which time the registered owner of the building was the applicant’s father. When the European Court delivered its judgment, the case was still pending before the Lomza district Court and had already lasted, within the meaning of the Convention, 8 years and 1 month (violation of Article 6§1).
The case also concerns an infringement of the applicant’s right to the peaceful enjoyment of his possessions in particular due to the fact that the state organs continued to occupy the building at issue in spite of a decision of the Supreme Administrative Court of 1993 retrospectively restoring title to the property to the applicant’s father (whose estate was inherited by the applicant following a judicial decision of 8/07/1998). Since the Supreme Administrative Court’s decision the authorities brought directly or implicitly court proceedings, without any reason of “public interest”, which have resulted in the postponement of the restitution of the property (violation of Article 1 of Protocol No. 1).
Individual measures: The proceedings for acquisition through adverse possession of title of the building at issue, at the origin of the violation of Article 6§1, ended on 21/09/2001, when the Lomza district Court dismissed the Treasury’s action.
Under Article 41 of the Convention, the European Court decided that the respondent state had to restore the property to the applicant within three months from the date at which the judgment became final. Failing such restitution, the state had to pay the applicant, within the same time-limit, a sum of money corresponding to the value of the building, i.e. 60 500 euros (section 1 of the operative part of the judgment of 02/07/2002). Moreover, the state had to pay, within the same time-limit, 100 000 euros for the pecuniary damage caused by the disuse of the property. The time-limit expired on 06/02/2003.
In 2002, the Polish delegation informed the Committee that the government had taken steps to return the building at issue to the applicant, who refused it however, preferring to be paid the pecuniary damage afforded by the Court. A notarised deed has been drawn up to this effect.
Moreover, the Polish government twice requested the revision of the European Court’s judgments (on the merits and on Article 41), due to the fact that proceedings had been lodged before the national courts by third persons to contest the property right of the applicant’s father to the building at issue at the time of the expropriation. The government’s requests for revision were rejected by the European Court on 22/01/2003 and 24/06/2003.
A final judgment had been rendered by the domestic courts in November 2003, ruling that the property at issue had not constituted a part of the succession after the applicant’s parents. Deducing from this that the applicant cannot be considered as the owner of the property, the delegation concluded that he is not entitled to the restitution of the property or to compensation and asked the Committee of Ministers to postpone the examination of the case until the outcome of the new revision procedure that the authorities envisaged to open.
A third request for revision, submitted to the European Court on this ground on 19/01/2004, was rejected on 28/01/2005. On 22/04/2005, the Polish government submitted to the European Court additional observations for the reconsideration of this revision request.
The Polish authorities also asked the Committee of Ministers to adjourn the discussion of the case until the European Court’s position was clearly and comprehensively reconsidered.
The government’s request of 22/04/2005 was rejected by the European Court by a final judgment of 06/03/2007. The Court recalled that the modalities of restoring the property in question and payment of the amounts awarded in the judgment under Article 41 (of 02/07/2002) are exclusively within the competence of the Ministers’ Deputies (§22 of the judgment of 06/03/2007). The Polish government’s request for the referral of the judgment of 06/03/2007 before the Grand Chamber was rejected on 24/09/2007.
On 14/12/2007 the applicant was paid 100 000 euros in respect of the pecuniary damage caused by the loss of use of the property.
The applicant’s situation: according to the judgment of the Olsztyn District Court of 27/09/2002, upheld by the Olsztyn Regional Court on 30/04/2003, the applicant’s father was not the owner of the property in question. Therefore the applicant could not inherit it from him (neither its ownership nor its possession). This judgment became final on 30/10/2003. The property is currently considered to constitute a part of the succession after S., a brother of the applicant’s grand-mother (on the father’s side), who died in 1937. Since he had no children, his successors are his sisters, including the applicant’s grandmother and his brothers’ children. Therefore it is possible that the applicant inherits a part in the succession of S., through his grandmother who had inherited a third part in this succession.

Concerning the legal status of the property, the land register identifies the State Treasury as its current owner. However, a warning in this register indicates that there is a discrepancy between the “real” legal status and legal status resulting from the register because of the applicant’s and his sister’s claims on the property (according to a copy from the land register of 30/07/2008, provided by the Polish authorities).
The applicant paid taxes on the land on the property until 2006.
By letters of 19/12/2009 and 25/03/2009 he complained about the non-execution of the European Court’s judgment in this case.
On 02/04/2009 the Secretariat wrote to the applicant requesting information about the current legal status of the real estate and on possible proceedings instituted or to be instituted to establish the owners of the building.
Recent development: the applicant replied to the Secretariat’s letter on 20/04/2009. The Secretariat is assessing this information.
Bilateral contacts are under way between the Secretariat and the Polish authorities regarding the outstanding measures envisaged for the execution of the judgments here at stake (see in particular Section 1 of the operative part of the judgment of 02/07/2002).
General measures:
1) Violation of Article 6§1: the case presents similarities to the other cases relating to the excessive length of civil proceedings (including Podbielski (27916/95), Section 4.2).
2) Violation of Article 1 of Protocol No. 1: The judgment of the European Court was communicated to the Ministry of Justice for dissemination to courts, and to the Ministry of Internal Affairs for dissemination, in particular to the police. It has also been distributed to judges and prosecutors.
Moreover, the judgment was published in the Bulletin of the Council of Europe Information Office in Warsaw, as well as on its Internet website.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), for consideration of individual measures.

- 9 cases against Romania

75101/01 Grecu, judgment of 30/11/2006, final on 28/02/20079

- Cases concerning the annulment of final court decisions relating to property ownership
31678/96 Gheorghiu T. and D.I., judgment of 17/12/02, final on 21/05/03
15402/04 Belasin, judgment of 15/11/2007, final on 15/02/2008
28400/04 Fischer, judgment of 11/10/2007, final on 11/01/2008
6248/03 Popea, judgment of 05/10/2006, final on 05/01/2007
33945/04 Şerbănescu, judgment of 07/02/2008, final on 07/05/2008
40670/98 Todorescu, judgment of 30/09/03, final on 30/12/03
These cases concern the Supreme Court's annulment of final court decisions delivered at first instance establishing the validity of the applicants' titles to real estate that had been previously nationalised. The Supreme Court intervened following applications for nullity lodged by the Procurator General on the ground of Article 330 of the Code of Civil Procedure which, at the relevant time, allowed him at any moment to challenge final court decisions. The European Court considered that by acting in this way, the Supreme Court had failed to acknowledge the principle of legal certainty and accordingly violated the applicants' right to a fair trial (violations of Article 6§1). In the Gheorghiu T. and D.I. and Todorescu cases it also took the view that the Supreme Court had infringed the applicants' right of access to a tribunal in that it had not recognised courts' jurisdiction over disputes concerning recovery of property.
Finally, the European Court found that the Supreme Court's decisions had violated the applicants' right to respect for their possessions by annulling without justification and without compensation final court decisions that recognised the applicants' property rights to the apartments at stake (violation of Article 1 of Protocol No. 1).
Individual measures: Under Article 41, the respondent state was to return the property at issue to the applicants and to pay them the sums awarded as just satisfaction in respect of non-pecuniary damage and costs. Failing such restitution, the state was to pay the applicants within the same deadlines further sums corresponding to the value of the property.

In the Belasin and Şerbănescu cases, the Romanian authorities paid just satisfaction for pecuniary damage corresponding to the value of the property at issue.
The applicants in the Gheorghiu T. and D.I. and Todorescu cases agreed to waive payment of the just satisfaction pending the outcome of the recovery proceedings, the contested property having in the meantime been sold by the state to the sitting tenants.
The proceedings in the Todorescu case ended on 19/02/2007 with a final decision of the Supreme Court rejecting the applicant’s requests for the return of her property. Consequently, following an earlier agreement with the applicant, the Romanian authorities paid her just satisfaction for pecuniary damage representing the value of this property.
Bilateral contacts with the Romanian authorities are under way to clarify some recent complaints of the applicant related to the execution of the European Court’s judgment in the Todorescu case.
Information is awaited on the current state of the proceedings in the case of Gheorghiu T. and D.I., still pending before the Romanian courts, as well as on measures envisaged or taken, having regard to the time already elapsed, in order to accelerate them as much as possible as well as on the current situation of the applicants in other cases.
Assessment: No further individual measure, except the payment of default interest, appears to be necessary in the Belasin and Şerbănescu cases.
General measures: These cases present similarities to that of Brumărescu against Romania (judgments of 28/10/1999 and 23/01/2001) (Resolution CM/ResDH(2007)90), in which the Romanian authorities indicated that Article 330 of the Romanian Code of Civil Procedure had been repealed by an emergency ordinance adopted by the government and published in the Official Gazette on 28/06/2003. This reform was approved by Parliament on 25/05/2004.

The Deputies:
1 decided to resume consideration of these items at the latest at their 1st DH meeting in 2010, in the light of information to be provided on individual measures if appropriate;
2. noted that no further measure seemed to be required for the execution of the Belasin and Şerbănescu judgments and decided to resume consideration of them with a view to examining the possibility of closing them, once payment of default interest has been confirmed.

      - Cases concerning the annulment of final court decisions concerning tax exemptions10

25632/02 Stere and others, judgment of 23/02/2006, final on 23/05/2006
21351/03 Stîngaciu and Tudor, judgment of 03/08/2006, final on 03/11/2006

- 1 case against the Slovak Republic

7205/02 Stanková, judgment of 09/10/2007, final on 31/03/2008
This case concerns the interference with the applicant’s right to respect for her home (violation of Article 8).
In 1999 the applicant was evicted from her flat where she had lived with her father since 1992, under the relevant provisions of Slovakian law (the Civil Code and Executions Order 1995).
Following the death of her father the local authority determined that the applicant had not inherited the flat under the provisions of the Civil Code and no alternative flat was offered to her. The applicant refused to move out so the local authority brought eviction proceedings against her which were enforced on 18/06/99. The applicant challenged the proceedings in the Constitutional Court which found that the local authority’s decision to evict the applicant was in breach of the Constitution (right to protection of private and family life). The Constitutional Court found that the criteria of the Civil Code regarding the inheritance of the flat had not been met but that as no alternative accommodation was offered to the applicant, the eviction proceedings were disproportionate and did not pursue a legitimate objective. However, at that time, the Constitutional Court could not provide redress for any violations it found.
The European Court agreed with the Constitutional Court’s assessment and concluded that the interference complained of was “not necessary in a democratic society”
Individual measures: The European Court awarded the applicant just satisfaction for non-pecuniary damage. It did not award any pecuniary damages as the claim for pecuniary damages was not shown to be linked to the violation.

The applicant was evicted from the flat on 18/06/99. She currently lives in her ex-husband’s flat with her son, who inherited the flat from his father. In its ruling the Constitutional Court stated that it was the authority’s duty to provide redress to the applicant (as the Constitutional Court could not at the material time).
On 02/09/2008 the Slovak authorities stated that the applicant is registered on a list of 861 persons seeking tenancy of a communal flat in the Poprad Municipality. There is no communal flat currently available. Under Section 228(1) (d) of the Civil Procedure Code a party to proceedings may apply for re-opening of those proceedings following a judgment from the European Court. Under section 230(1) of that Code, a petition for the reopening of proceedings must be filed within three months from the day upon which the applicant became aware of the reason for such reopening, or the date from which it was possible to apply for such a reopening.
Assessment: it does not appear that the applicant has been provided with alternative accommodation. However, it was open to her to apply for reopening of the proceedings concerning her eviction from her flat.
Information is awaited as to whether the applicant has applied to reopen the proceedings.
General measures:
1) Application of Article 3(1) of the Civil Code: Article 3(1) of the Civil Code permits the granting of relief from hardship in justified cases by ensuring that alternative accommodation should be provided to persons who have been ordered to move out of a flat. The European Court (in agreeing with the Constitutional Court’s assessment) considered that the lower courts had not correctly applied Article 3(1) of the Civil Code when considering the circumstances of the applicant. However, although the Constitutional Court remedied this in its judgment, the judgment had no effect (see below).
2) Consequences of rulings of the Constitutional Court: Following an amendment to the Constitution of the Slovak Republic, as in force from 01/01/2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that a complaint is justified, to order the authority concerned to take the necessary action. It may also grant adequate financial satisfaction to the person whose fundamental rights and freedoms have been violated.
3) Publication and dissemination of the judgment of the European Court: On 02/09/2008 the Slovak authorities confirmed that the judgment had been translated and published in Justičná Revue 12/2007. On 31/07/2008 the judgment was distributed to all regional courts under cover of a letter from the Agent of the Slovak Republic before the European Court. The presidents of regional courts have been asked to bring the judgment to the attention of all judges and district courts within their jurisdiction.
Assessment: no further measures appear necessary

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual measures.

- 1 case against Switzerland

42034/04 Emre, judgment of 22/05/2008, final on 22/08/2008
This case concerns the violation of the applicant's right to respect of his private and family life, due to his deportation from Switzerland (violation of Article 8).
The applicant, a Turkish national, arrived with his family in Switzerland before the age of six, in 1986. Following a number of offences, in 2003, the department for foreigners of the Canton of Neuchâtel decided on his administrative deportation for an undetermined duration; this decision became final on 21/05/2004.
The European Court considered that, in doing so, the Swiss authorities had not found a proper balance between the applicant's and his family's interest on the one hand and their own interest to control immigration on the other hand. Although the measure at issue was provided by law and pursued a legitimate aim, it was not necessary in a democratic society. In thus concluding, the Court took particularly into account: the fact that some of the offences committed by the applicant came under the heading of juvenile delinquency; the fact that the applicant's health problems might make his return to his country of origin harder, as he does not have much of a social network; the degree of seriousness of the offences of which the applicant had been convicted; his weak ties with his country of origin; the final nature of the deportation order.

Individual measures: After the applicant's first deportation in 2004 and his illegal re-entry into Switzerland, he was once again deported to Turkey on 01/11/2005. According to the last information available to the European Court (§33) an appeal at least to suspend the deportation was pending before the Administrative Tribunal of the Neuchâtel Canton. Following the European Court’s judgment, the attention of the authorities concerned (who apply the Convention directly) has been drawn to the conclusions of the Court. In particular, the judgment was sent to the authorities of Neuchâtel Canton on 22/05/2008, the day on which the judgment was delivered (see also the other measures of publication and dissemination presented below). These authorities indicated that they would issue the applicant with a residence permit. However, following the request lodged y the applicant’s lawyer to the Federal Tribunal to re-open the proceedings, they added that they would wait for the Federal Tribunal’s judgment before the issue of a permanent residence permit. The Swiss authorities indicated that they would keep the Secretariat informed in this respect.
The European court rejected the applicant's allegations concerning loss of earnings owing to his deportation; it however awarded just satisfaction in respect of the non-pecuniary damages sustained by the applicant.
Information is awaited to the effect that the permanent residence permit announced has been issued
General measures: It is the disproportionate character of the applicant's deportation, in view of the circumstances of the case, which the European Court criticised. The Swiss authorities confirm that this is an isolated case, corresponding to a difference of assessment of what was at issue between the national authorities and the European Court. So the texts themselves do not seem to have been brought into question; it may nevertheless be underlined that they have evolved since the facts of the case (with the entry into force of the revised Criminal Code on 01/01/2007, the former article concerning deportation as a criminal sanction was abrogated; the present legal status of deportation is regulated in Chapter 10 of the Federal Law on Aliens of 16/12/2005: http://www.admin.ch/ch/f/rs/1/142.20.fr.pdf).
So that the competent authorities may avoid new, similar violations by directly applying this case-law of the European Court, the judgment has been widely published and disseminated. It was sent out to the Neuchâtel Canton authorities on 22/05/2008 (see above). It is presented in the second quarterly report of the Ministry of Justice (Office fédéral de la Justice; http://www.bj.admin.ch/etc/medialib/data/staat_buerger/menschenrechte/eurokonvention.Par.0005.File.tmp/ber-egmr-2008q2-f.pdf).
These quarterly reports are sent out to all the relevant Federal authorities (Tribunal fédéral, Tribunal fédéral administratif, Tribunal fédéral pénal, Secretariat of the Parliament) as well as the relevant justice authorities in the Cantons. A summary of the judgment is also presented in the Annual Report of the Federal Council on the activities of Switzerland in the Council of Europe in 2008. Finally, the Tribunal Fédéral itself published the judgment: http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-leitentscheide1954.htm (more generally, the Tribunal fédéral now publishes, at this Internet address, all the judgments of the European Court against Switzerland).
Assessment: No other measure appears necessary.

Les Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on individual measures, namely confirmation of the issue for the applicant of the permanent residence permit announced.

- 235 cases against Turkey

19807/92 Erdoğan and others, judgment of 25/04/2006, final on 13/09/2006
This case concerns the failure on the part of the national authorities to protect the right to life of the applicants' relatives in the planning and manner of execution of police operations carried out in four different locations in Istanbul in 1991. The applicants' relatives, who were members of an extreme left-wing armed movement (Dev-Yol), were all killed during the operations (violation of Article 2).
The European Court found the following deficiencies in the planning and manner of execution of the operations:
- There had been no documents recording the planning of the operations and briefings given to the officers involved;
- The legislation applicable (Law No. 2559, enacted in 1934) to the conduct of such operations listed a wide range of situations in which a police officer could use firearms without being liable for the consequences. This legal framework would not appear to be sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe;

- There were no clear guidelines and criteria governing the use of force when carrying out arrests of dangerous suspects in peacetime;
- There had been no clear instructions given by police chiefs to police officers as to how to capture and detain suspects alive or as to how to negotiate a peaceful surrender, as well as instructions as to how and when use a lethal or a non-lethal weapon;
- The injuries to the applicant's relatives were such that it seemed unlikely that they had been caused by police officers acting in self defence.
The European Court thus found that the use of force by the police officers was not absolutely necessary in self defence. In this regard, the Court noted that, despite the alleged intensity of exchange of fire between the police officers and the members of Dev-Yol, none of the police officers was killed or even injured while all members of the Dev-Yol were killed.
The case also concerns the inadequacy of the investigation. The European Court highlighted the following shortcomings: the investigation authorities did not photograph or make sketches at the scene of the incidents; they took no fingerprints and the weapons used by the police officers were not sent for forensic examination (violation of the procedural aspect of Article 2).
Lastly, the case concerns the absence of any effective remedy at the applicants' disposal, including for compensation (violation of Article 13).
Individual measures: It may be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).
Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incidents in the light of the shortcomings identified by the European Court.
General measures:
Information provided by the Turkish authorities (15/05/2007)
- Legal framework regarding the use of force by the police:
Changes were introduced on 2/6/2007 to Law No. 2559 on the duties and legal powers of the police, which now provides that the police are not entitled to use force unless confronted with resistance. According to the amended Article 16 of the law, the use of force should be directed so as to break up the resistance and should be proportionate. The use of force could be increased gradually, depending on the nature and level of the resistance confronted (i.e. the police shall first use physical force, then will intervene with other devices (such as tear-gas, truncheon etc) and, as a last resort only, use firearms). The police shall warn the person(s) resisting that they will use force if they continue resisting. However, if the circumstances of the resistance so require, the police might use force without warnings. The police shall consider and decide the level of the force that they will use; including the devices they will use to break up the resistance. The police are entitled to legitimate defence in cases of attacks directed against them or to third persons. The police are entitled to use weapons in self-defence, in cases where they cannot neutralise resistance by physical force or other devices or in order to secure an arrest, detention or in cases of flagrante delicto. In those situations the police shall issue a stop order before using a firearm. The police are entitled to use a firearm without hesitation on person(s) attempting to use a firearm against them within the limits of neutralising the danger.
- Legal framework regarding armed operations:
A Regulation on Operations of the Security Directorate came into force on 16/11/2001 which sets the framework for the instructions to be given to staff participating in law enforcement operations. According to the Regulation, all operations should be composed of three phases: preparation, execution and follow-up. In particular, the regulation provides as follows: before planning an operation, staff should ensure the preparation of an inventory of the area where the suspects are. An evaluation of the staff that will participate in the operation, the vehicles, arms and other equipment that will be used in the operation should be made. Detailed instructions should be given to senior staff members. During the different phases of the operation the staff shall not use firearms unless strictly necessary to carry out an arrest. If necessary, specialised staff or psychologists shall intervene in order to establish dialogue with the suspects. Necessary measures should be taken to protect the suspects from possible attack or lynching. The regulation in question is unpublished.
- Publication and dissemination of the judgment of the European Court:
The judgment has been published at the Human Rights Database (www.inhak-bb.adalet.gov.tr/aihm/karar/erdoganvedigerleri.doc) and has been disseminated to the Ministry of the Interior.

The Deputies decided to examine the measures taken under this head in the context of the cases concerning the actions of security forces.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

52955/99 Huylu, judgment of 16/11/2006, final on 23/05/2007
The case concerns the national authorities’ failure to protect the right to life of the applicant’s son, diagnosed with several illnesses before he was imprisoned. The European Court first noted that the health situation of the applicant’s son, who had a long medical history, could not have been ignored by the prison authorities. Secondly, the Court made reference to Committee of Ministers’ Recommendation (98)7 concerning the ethical and organisational aspects of health care in prison and noted that detainees who need specific health care should be transferred to specialised hospitals and that detainees should be accompanied by medical staff during their transfers. The Court, however, noted that, despite their obligation to do so, the authorities did not do everything in their power to provide the necessary health care to the applicant’s son, in particular during his transfer from the prison to the hospital. The authorities also failed to prescribe the appropriate treatment for him (substantial violation of Article 2).
The case also concerns the absence of an effective investigation into the death of the applicant’s son because of the application of Law No. 4616 (on the conditional release and postponement of proceedings and of execution of sentences of crimes committed before 23/4/1999) in the proceedings initiated against the prison staff for negligence in the death of the applicant’s son. According to the Court, the application of Law No. 4616 in these proceedings granted impunity to the accused staff (procedural violation of Article 2).
Individual measures: It should be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).
Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incident in the light of the shortcomings identified by the European Court.
General measures: The authorities submitted an action plan detailing the following general measures taken:
- Pursuant to the Regulation on the Administration of Penitentiary Institutions, Execution of Sentences and of Security Measures, all incarceration premises shall have proper medical centres. Penitentiary doctors shall regularly examine the detainees. Should the state of health of a detainee require hospitalisation, the doctor concerned shall inform the penitentiary administration and transfer to a hospital shall take place immediately.
- In order to maintain a good administration of healthcare by taking into account international norms, a booklet was prepared in 2006 with the support of the European Union. This booklet was distributed to the persons and institutions concerned and a training programme carried out for penitentiary doctors regarding the application of the relevant international norms.
- Another booklet containing the rules adopted by international organisations, including the Committee of Ministers’ Recommendation No. R(98)7, was prepared and distributed in May 2007. In addition, this booklet is used as part of the curriculum at training centres.
A Turkish translation of the Court’s judgment was also posted on the website of the Ministry of Justice at:
www.inhak-bb.adalet.gov.tr/aihm/karar/huylu.doc.
Assessment: In the light of the information submitted, no other general measure appears necessary.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

60856/00 Eren Mürsel, judgment of 07/02/2006, final on 03/07/2006
The case concerns a violation of the applicant's right to education in that the Higher Education Council arbitrarily decided to annul the applicant's most recent results in the university entrance examination. The Council reasoned that his excellent achievement in his most recent attempt could not be explained given his poor results in the previous years. The applicant had failed to pass the first stage of the examination at his first three attempts between 1994 and 1996. At his last attempt in 1997 however, he passed both stages and obtained a high mark in the second stage, which would have allowed him to register at a university. The domestic courts confirmed the Council's decision to annul, on the ground that the applicant had not achieved the result through his own knowledge and ability.
The European Court found that the annulment of the applicant's examination results was unjustified. There was nothing to prove that he had cheated and no such accusation had been made against him. In addition, the applicant had prepared for the 1997 examinations by attending a private course (violation of Article 2 of Protocol No. 1)
Individual measures: Following the judgment of the European Court, and upon the applicant’s request, the Council of State reopened the proceedings on the basis of the Law on Administrative Proceedings and on 19/01/2007 it annulled the decision of the Higher Education Council characterising it as arbitrary and not supported by ample evidence. It therefore found that the decision constituted a violation of the applicant’s right to education guaranteed by the Constitution, as well as the relevant legislation.
Turkish authorities informed the Secretariat that the Higher Education Council had appealed the ruling, and that the proceedings are pending.
Information is awaited on the outcome of the Higher Education Council’s pending appeal.
General measures:
Information provided by the Turkish authorities: The judgment of the European Court has been published and disseminated to the Higher Education Council.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of information to be provided on individual measures.

26308/95 Institut de Prêtres français and others, judgment of 14/12/00 – Friendly settlement - Interim Resolution ResDH(2003)173
The case concerns a Turkish judicial decision of 1993 annulling the applicant institute's property entitlement to a plot of land on the grounds that, by letting part of this land to a private company, this Institute was no longer eligible for special treatment as a non-profit body (complaints under Article 1 of Protocol No. 1 and Article 9).
The parties concluded a friendly settlement according to which the government undertook the following obligations:
- The Treasury and the Directorate General of Foundations recognise the right to usufruct to the benefit of the priests in charge of the applicant Institute. This right to usufruct shall comprise the full use and enjoyment of the land and the buildings thereon and the right to rent the land for profit-making purposes in order to meet its needs;
- The two state authorities mentioned above further agree to undertake the formalities necessary to register their respective declarations in the land register and to provide appropriate guarantees to ensure the renewal of the life tenancy in favour of the priests who will replace the current usufructuary;
- The Directorate General of Foundations waives its claim to USD 41,670 owed by the applicant Institute in rent accruing over the five years since its property title was annulled.
The necessity of urgent compliance with these obligations has been stressed in the Committee of Ministers at each of its DH meetings since October 2001, as well as in two letters of the Chair of the Committee of Ministers the first sent on 06/11/2002 to the Turkish Permanent Representative, the second on 17/06/2003 to Mr. Gül, Minister of Foreign Affairs of Turkey.
On numerous occasions the Turkish delegation has indicated that the problems encountered in ensuring respect of the commitments made would be solved. On 18/04/2003, the first Chamber of the Council of State, consulted for advice, did not approve the friendly settlement.
On 08/10/2003, the Committee of Ministers adopted an Interim Resolution “urging the Turkish authorities to comply without delay with the Court's judgment in this case” and deciding “to pursue the supervision of the execution of the present judgment, if need be, at each of its forthcoming meetings, until all necessary measures have been adopted”.
On 30/12/2003, the Chamber of Administrative Matters of the Council of State quashed the decision of 18/04/2003, concluding that the Council of State's opinion was not necessary in this case because the amount of the state's undertakings had not exceed the limit above which such an opinion is necessary.

It also underlined that striking-out judgments of the Court following a friendly settlement are binding on states, which must abide by them under the supervision of the Committee of Ministers.
Information provided by the Turkish delegation since April 2004: several concrete steps were taken following that decision:
- approval by the Ministry of Finance of the right to usufruct to be given to Mgr Fontaine, representing the institute, and on the distribution of the income resulting from the renting of the properties between the institute, the tax authorities and the Directorate General of Foundations;
- letter of 29/03/2004 of the Ministry of Finance to the Treasury of Istanbul and to the Directorate of Foundations, requesting both of them to make the necessary arrangements and legal formalities;
- decision of 12/05/2004 of the Board of Foundations providing that a right of usufruct shall be granted on behalf of Mgr Fontaine, as the representative of the “Assumption Church” on the properties at issue
- decision of 15/06/2004 of the Council of Ministers providing the same. Attached to the Board of Foundations' decision was the draft of the official agreement to be prepared by the Land Registry Office when the right of usufruct is registered, which states among other things that, 'the right of usufruct will be granted on behalf of the Priest, Mgr Alain Fontaine for his life-time, as the representative of the “Assumption Church”, and following his death the exercise of right of usufruct will be passed on to his successor priest selected by the “Assumption Church”. This condition will be valid for all other successor priests. (…) The exercise of right of usufruct shall take effect at the date of its registration in the land registry'. It also contains provisions on the value of the right of usufruct, the share of the income and the date of payment.
Nevertheless, by letter of 8/09/2004, the representatives of the “Congrégation des Augustins de l'Assomption” announced that Mgr Fontaine no longer represented the applicant institute and, by letter of 29/11/2005, they indicated that an association had been created on 5/10/2005 to replace him.
According to the information received from the parties, contacts between them continue at domestic level regarding the implementation of the friendly settlement. Until recently, the applicant institute has been insisting that the cultural association set up in 2005 should be the beneficiary of the usufruct and been refusing to nominate another priest for that purpose following Mgr Fontaine’s resignation. At the 1013th meeting (December 2007) the authorities stated that the cultural association concerned was not the original applicant party and thus could not make any demands under the friendly settlement. As it was originally agreed between the parties, the authorities were willing to grant the usufruct in favour of a priest, such as Mgr Fontaine, with authority to represent the Congregation or any other priest that the applicant institute might nominate.
On 18/06/2008, the applicant’s representatives sent the Secretariat a letter summarising the current state of the affairs. They submitted the following: The applicant’s representatives met with the Foreign Ministry authorities most recently on 2 October 2007 in Ankara. They declared that they were willing to accept that the usufruct be granted in favour of (i) the Institut de Prêtres, which –if necessary– could be represented by Mgr Alain Fontaine, or (ii) the cultural association that they set up in 2005, or finally (iii) a French company, SAI Saint-Loup, represented by Mgr Fontaine. According to the applicant’s representatives, the authorities are yet to respond to these different proposals. Lastly, they mentioned that they consider re-submitting their application to the European Court if the current deadlock continues between the parties.
Information provided by the applicant’s representatives (letter of 25/05/2009): A meeting took place on 4/03/2009 in Ankara concerning this case with the Deputy Directors of the National Land Directorate and the Adviser to the Finance Minister. According to the representatives, the parties agreed at this meeting to attribute the usufruct to the Assumptionist cultural association founded in 2005; a draft agreement naming the association as usufructuary was submitted to the National Land Directorate on 10/03/2009. However, the representatives have as yet received no reply from the administration concerning the implementation of this agreement and the have been given to understand informally that the Directorate was awaiting the opinion of the Ministry for Foreign Affairs. The representatives also indicated their intention to reintroduce their appeal before the European Court to obtain recognition of their full property rights in respect of the land at issue.
Information is awaited on the authorities’ position on the usufruct agreement proposed by the applicant party on 10/03/2009 and in particular the opinion of the Foreign Ministry which would enable conclusion of the agreement.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

      - Cases mainly concerning the unfairness of criminal proceedings brought against the applicants due to the lack of assistance by counsel during their trials

42104/02 Kahraman Kemal and Kahraman Ali, judgment of 26/04/2007, final on 26/07/2007
32432/96 Tunç Talat, judgment of 27/03/2007, final on 27/06/2007
These cases concern the unfairness of criminal proceedings brought against the applicants due to the lack of assistance by counsel during their trials (violations of Article 6§§1 and 3c).
In the Talat Tunç case, the applicant was convicted of voluntary matricide and sentenced to 30 years' imprisonment. The European Court found that, given the severity of penalty and the complexity of the file, the authorities should have taken steps to ensure that the applicant benefited free of charge from the assistance of counsel, even if he had not formally requested it.
In the Kahraman case, the applicants were convicted of insurrection against the prison administration and sentenced to four years' imprisonment. The Court noted that the applicants had requested and obtained free legal assistance, but nonetheless considered that the authorities did not take the necessary steps to ensure that the designated counsel fulfilled their obligations adequately.
The Kahraman case also concerns the failure to bring the applicants before the trial court; they were never invited to attend the hearings. Instead the trial court mandated another court to take their evidence. The European Court found that such restriction of the rights of the defence was unjustifiable (violation of Article 6§1)
Individual measures: The applicant in the case of Talat Tunç was released in 2002 by virtue of amnesty Law No. 4616 of December 2000.
The applicants in the Kahraman case were sentenced to four years’ imprisonment in 2001.
Information is awaited on measures taken or envisaged to erase of all consequences of the violations for the applicants.
General measures:
Information provided by the Turkish authorities: Under Article 150 of the new Code of Criminal Procedure when a person is prosecuted for an offence punishable by a minimum of 5 years' imprisonment, defence counsel is appointed ex officio. Article 180§3 of the new Code of Criminal Procedure provides that except where absolutely necessary, another court shall not be mandated to hear the accused, witnesses, experts who are situated within the jurisdiction of the court examining the file.
Article 151§1 of the new code of Criminal Procedure provides that if a defence counsel appointed ex officio does not fulfil his/her obligations the court shall appoint another.
Assessment: No further general measure seems necessary.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures

- Cases of length of criminal proceedings in particular before martial law courts
15259/02 Ertürk Hasan, judgment of 12/04/2005, final on 12/07/2005
287/03 Çengelli and Eryılmaz, judgment of 10/06/2008, final on 10/09/2008
36150/02 Kaya Mehmet, judgment of 06/12/2005, final on 06/03/2006
These cases concern the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (since abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violations of Article 6§1).
In the Ertürk Hasan case, proceedings began in November 1983 and are still pending before the Court of Cassation (at the time the European Court issued its judgment, the proceedings had been pending more than 21 years of which 18 fall under the European Court's jurisdiction). In the Mehmet Kaya case, proceedings began in September 1980 and were still pending before the Ankara Assize Court at the time the European Court gave its judgment (more than 25 years of which 18 fall under the Court's jurisdiction).
In the Çengelli and Eryılmaz case, the proceedings began on 3 and 15/03/1981 and were still pending before the Ankara Assize Court at the time the European Court issued its judgment (more than 27 years of which 21 fall under the Court’s jurisdiction).
The applicants were released pending trial respectively in 1988 and 1991.

Individual measures:
1) Case of Ertürk Hasan:
• Information provided by the Turkish authorities (03/04/2006): On 03/10/2006 the Ankara Assize Court convicted the applicant. On 03/03/08, the authorities indicated that the applicant had appealed his conviction and the case was pending before the Court of Cassation. On 03/03/2008 the Turkish authorities indicated that the appeal proceedings were still pending before the 11th Chamber of the Court of Cassation.
Information is awaited on the termination of the appeal proceedings.
2) Case of Kaya Mehmet: On 25/09/2007 the Turkish authorities indicated that the proceedings were still pending before the Court of Cassation.
Information is urgently awaited on the outcome of the appeal proceedings.
3) Case of Çengelli and Eryılmaz:
Information is awaited on the acceleration of the proceedings.
General measures: These cases present similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Şahiner and others against Turkey, which was closed by Resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of further information to be provided on individual measures, in particular on the outcome of the pending proceedings against each of the applicants.

- Case of length of criminal proceedings before state security courts
31540/02 Atıcı No. 2, judgment of 12/04/2007, final on 12/07/2007
This case concerns the excessive length of proceedings before state security courts. Proceedings began in October 1992 and are still pending before the Istanbul Assize Court.
Individual measures: The authorities indicated on 08/04/08 that the proceedings were pending before the Istanbul Assize Court.
Information is awaited on the acceleration of proceedings in this case.
General measures: State security courts were abolished by the constitutional amendments of May 2004.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December) (DH), in the light of further information to be provided on individual measures.

    Cases raising the issue of restitutio in integrum for the applicants:
    reopening of the domestic proceedings not allowed by Turkish law:

- 206 cases concerning the independence and impartiality of state security courts
(See Appendix for the list of cases in the Gençel group)
These cases concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them (violations of Article 6§1).
The Y.B and others case also concerns a violation of the principle of presumption of innocence (violation of Article 6§2).
Individual measures: The European Court considered that where an individual has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.
However, the provisions of the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in these cases, inasmuch as the Code only provides for the reopening of proceedings in respect of the Court's judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003.
Consequently, the applicants' appeals for reopening of proceedings in the cases of N.K (43818/98), Özertikoğlu İsmail (48438/99), Süvarioğulları (50119/99), Güven and others (in respect of Ramazan Akdağ) (40528/98), Yıldırım Süleyman (40518/98), Güneş Ismail (53968/00), Gençel (53431/99),Kaymaz and others (57758/00) and Ağaoğlu (27310/95) were rejected by domestic courts. In the case of Kaymaz and others and Ağaoğlu, the applicants lodged a new application with the European Court alleging that the fact that they had been deprived of the possibility to have their cases reopened constituted violations of Articles 3, 5§1(a), 6 and 13 (in conjunction with Article 14) of the Convention.

Information expected: concerning the applicants' situation and the measures envisaged ensuring proper redress to the applicants, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
General measures (No examination envisaged)
1) Violations of Article 6§1 (independence and impartiality): these cases present similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) which was closed by a final resolution, DH(99)555, following the legislative and constitutional amendments changing the composition of state security courts and ending the functions of military judges and military prosecutors in these courts. On 07/05/2004, the Parliament approved a constitutional amendment abolishing state security courts.
2) Violations of Article 6§2 (presumption of innocence): in the case of Y.B and others, publication and dissemination of the European Court's judgment to the police force, in particular to the Anti-Terrorism Branch.

The Deputies decided to resume consideration of these cases at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of further information to be provided on individual measures, namely the erasure of all consequences of the violation for the applicants and on remaing general measures.

39465/98 Parsıl, judgment of 26/04/2005, final on 26/07/2005
The case concerns the violation of the applicant’s right to a fair trial on account of the failure to disclose Principal Public Prosecutor's written opinion concerning the validity of the applicant's appeal on a point of law before the Court of Cassation in an embezzlement case (violation of Article 6§1).
In March 1996, the applicant was sentenced to 7 years and 9 months' imprisonment and a fine of 33 333 333 Turkish liras (390 euro) and was banned from exercising public office.
Individual measures: The applicant cannot obtain the reopening of the impugned proceedings under Law No. 4793 as this law does not apply to proceedings which were pending before the European Court at the date of its entry into force.
Information is therefore awaited on the measures envisaged by the Turkish authorities in order to erase all the consequences of the violation for the applicant.
General measures: A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. Thereafter, this provision was included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which and entered into force on 01/06/2005 (see in this context, the Göç case, 36590/97, Section 6.2).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures, namely the erasure of all consequences of the violation found for the applicant.

    - Cases concerning ill-treatment suffered by the applicants and the lack of independence and impartiality of state security courts

52941/99 Gültekin and others, judgment of 31/05/2005, final on 31/08/2005, rectified on 06/12/2005
27526/95 Günaydın Vedat and Şahin, judgment of 13/10/2005, final on 15/02/2006
48063/99 Aslan Orhan, judgment of 20/10/2005, final on 20/01/2006
42579/98 Demir Murat, judgment of 02/03/2006, final on 02/06/2006
43925/98 Karakaş and Yeşilırmak Yılmaz, judgment of 28/06/2005, final on 28/09/2005
39813/98 Önder Soner, judgment of 12/07/2005, final on 12/10/2005
40986/98 Soner and others, judgment of 27/04/2006, final on 27/07/2006
42594/98 Uçkan, judgment of 22/06/2006, final on 22/09/2006
These cases concern the ill-treatment of the applicants during police custody (violations of Article 3).
They also concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them (violations of Article 6§1).
The applicants in two of the cases are still serving heavy prison sentences (life imprisonment in the case of Gültekin and others and 20 years in the Önder case).

Individual measures: As regards the violations of Article 6§1, these cases present similarities to the Gençel group (53431/99, Section 4.1). The European Court has reiterated its view (except in the case of Karakaş and Yeşilırmak) that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings (see the case of Hulki Güneş for details, 1056th meeting, 6-7 May 2009).
Information expected on the applicants' situation and the measures envisaged to ensure them proper redress, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
General measures:
1) Violations of Article 3: These cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (Aksoy group, 21987/93, 1065th meeting, September 2009, in this connection see Interim Resolution ResDH(2008)69 adopted at the 1035th meeting (September 2008) which takes stock of the measures already taken and points out the outstanding issues to be resolved).
2) Violations of Article 6§1: These cases present similarities the Gençel group above-mentioned.

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided concerning individual measures, namely the erasure of all consequences of the violations found for the applicants.

- Cases concerning the unfairness of the criminal proceedings against the applicants
35811/97 Kolu Mustafa, judgment of 02/08/2005, final on 02/11/2005
74500/01 Çelik and others, judgment of 26/06/2007, final on 26/09/2007
71803/01 Kapan and others, judgment of 26/06/2007, final on 26/09/2007
36487/02 Menteş Güler, judgment of 06/02/2007, final on 06/05/2007
46213/99 Örs and others, judgment of 20/06/2006, final on 20/09/2006
46286/99 Özen Hacı, judgment of 12/04/2007, final on 12/07/2007
38419/02 Yıldız Sacettin, judgment of 05/06/2007, final on 05/09/2007
These cases mainly concern the unfairness of criminal proceedings against the applicants, in which they were sentenced to prison terms on the basis of self-incriminating statements made in the absence of a lawyer and/or under duress while in police custody and/or without being able to examine their accusers (in the cases of Kolu Mustafa and Menteş Güler), without appearing before the trial court (violations of Article 6§§1 and/or 3(c) and/or 3(d)) and without being represented by counsel during trial.
These cases also concern: the excessive length of the applicants' detention in police custody (Örs and others; Özen Hacı) (violations of Article 5§3); failure to communicate the written opinion of the public prosecutor before the Court of Cassation to the applicants (Çelik and others; Menteş Güler) (violations of Article 6§1); lack of independence and impartiality of the state security court which tried the applicant on account of the presence of a military judge on the bench (Özen Hacı) (violation of Article 6§1); inhuman treatment of the applicant while in police custody and the absence of an effective remedy in this regard (Özen Hacı) (violation of Articles 3 and 13); failure of the authorities to investigate the applicant’s claim of ill-treatment (Yıldız Sacettin) (substantive and procedural violations of Article 3);
Individual measures: With the exception of those in Kapan and others and Sacettin Yıldız (whose situation is unclear), all the applicants either must have served their prison sentences or have been released in application of an amnesty law. However, the Turkish authorities have indicated that their convictions continue to appear in their criminal records with the exception of the applicant Saime Örs (in the case of Örs and others) and all of the applicants in the case of Çelik and others, whose convictions have been erased from their criminal records. In the case of Hacı Özen, the authorities indicated that the applicant submitted no request for reopening within the statutory time. However, the law on reopening of proceedings does not appear to be applicable in this case given the temporal gap provided for in that law (see the case of Hulki Güneş in Section 4.3 for details).

Information is therefore awaited on the erasure of all the consequences of the violations found by the Court with the exception of Saime Örs and the applicants in the case of Çelik and others. In this respect, the Court recalled its case-law to the effect that when someone has been convicted in unfair proceedings, a new trial or the reopening of the proceedings at the individual's request is in principle an appropriate means of remedying the violation found. It should also be noted that the law on reopening does not appear to be applicable to the applicants in these cases.
Information is also awaited on the situation of the applicants in Kapan and others and Sacettin Yıldız (especially whether they are still serving the sentences at issue).
General measures:
1) Procedural safeguards in police custody:
Measures adopted: Several measures have been taken with the entry into force of the new Code of Criminal Procedure (CCP) on 01/06/2005 and with the amendments introduced in the Rules on Apprehension, Police Custody and Interrogation in relation to the procedural safeguards in police custody (see, Appendix 1 to Interim Resolution ResDH(2005)43). These amendments, as far as relevant, can be summarised as follows:
1. All suspects or accused shall have the right to have access to a lawyer at every stage of the investigation. The right to have access to a lawyer, including during the interrogation, shall not be obstructed or limited (Article 149 of the CCP).
2. A lawyer shall be appointed if suspect or accused declares that he or she has no means to appoint one. In the investigation of crimes requiring at least five years' imprisonment, a lawyer shall automatically be appointed whether or not the suspect or the accused requests it (Article 150 of the CCP).
3. Apprehended persons shall be informed of their rights at the time they are taken into custody (Article 6 of the Regulations).
4. Lastly, no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the CCP).
2) Violations of Articles 3 and 13: See the cases of actions of security forces (Aksoy group, 21987/93,1065th meeting, September 2009).
3) Violation of Article 5§3: Measures have been taken (see Final Resolution ResDH(2002)110 in the Sakık and others case)
4) Non-communication of the opinion of the public prosecutor to the applicant: Measures taken (see the case of Göç, 36590/97, Section 6.2).
5) Lack of independence and impartiality of the state security court: Measures have been taken (see Final Resolution DH(99)555 in the case of Çıraklar).

The Deputies decided to resume consideration of these items at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures, namely the erasure of all the consequences of the violations.

32984/96 Alfatli and others (applicant Mahmut Memduh Uyan), judgment of 30/10/03, final on 24/03/04
The case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (jurisdiction of which was abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violation of Article 6§1). The proceedings, of which the European Court took account as from 28/01/1987 (the date of Turkey's recognition of the right of individual petition) began in February 1985 and were ended in December 1995 (more than 8 years and 11 months).
In the meantime, the applicant, who was sentenced to death by the Martial Law Court, was released in February 1995 while the proceedings were pending before the Court of Cassation.
The case also concerns the independence and impartiality of the Ankara Martial Law Court on account of the presence of two military judges and an army officer on the bench (violation of Article 6§1).
Individual measures: Concerning the independence and impartiality of the Martial Law Court, the European Court has expressed the view that in cases in which it finds that an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress is to ensure that the applicant is in due course granted a retrial by an independent and impartial tribunal.
In a letter of 01/06/2004 the applicant informed the Secretariat that he was willing to apply for the reopening of the domestic proceedings. However, the provisions of Code of Criminal Procedure on reopening of domestic proceedings do not apply in his case (the same situation as in the cases concerning the independence and impartiality of state security courts).

Information provided by the Turkish authorities: on 07/10/2004 the Turkish authorities informed the Secretariat that the “plan of action” for the implementation of the measures required had been brought to the attention of the Ministry of Justice. On 11/01/2005 the Turkish authorities informed the Committee that the provisions of Law No. 5352 (Law on Criminal Records) do not allow the erasure of the applicant's conviction from his criminal records due to the heavy punishment imposed (i.e. death sentence commuted to life sentence).
Information is awaited on the specific measures taken or envisaged by Turkey in order to ensure redress for the applicant, either by allowing the reopening of proceedings or any other ad hoc measures.
General measures: The case presents similarities to other cases of excessive length of criminal proceedings and independence and impartiality of Martial Law Courts such as that of Şahiner and others against Turkey, which was closed by final resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolishment of the jurisdiction of Martial Law Courts.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures, namely the erasure of all consequences of the violations found for the applicant.

11449/02 Tavlı, judgment of 09/11/2006, final on 09/02/2007, rectified on 25/01/2007
The case concerns the refusal by domestic courts of the applicant’s retrial request concerning an earlier decision on rejection of paternity. The applicant’s first request of paternity was rejected in 1982 in view of a medical report and on the ground that the child was born in wedlock. Relying on the findings of a DNA test done in 1997, the applicant requested a retrial in his action for rejection of paternity. However, his application was rejected on the ground that the conditions for retrial had not been fulfilled in accordance with Article 445§1 of the Code of Civil Procedure, which provides that the newly obtained evidence must have been existent at the time of the proceedings and must have been inaccessible due to force majeure for retrial to be granted on the basis of new evidence. According to the interpretation given by domestic courts, “scientific progress” could not be considered as force majeure within the meaning of that article.
The European Court considered that by rejecting the applicant’s claim for paternity the domestic courts failed to strike a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of biological evidence. According to the Court, domestic courts should interpret existing legislation in the light of scientific progress and the social repercussions that follow (violation of Article 8).
Individual measures: Article 445§11 of the Code of Civil Procedure appears to allow the reopening of cases following a judgment of the European Court finding a violation.
Information provided by the authorities on 29/11/2007: Following the judgment of the European Court, domestic proceedings were reopened at the applicant’s request. The Aksaray Family Court declared void the earlier decision at the basis of the violation established, and held a new trial on the merits. Taking into account the European Court’s criticism, the family court considered the scientific progress as a reason for retrial and gave a ruling in favour of the applicant.
Information is awaited on whether the family court’s decision has become final. If it was appealed, information is awaited as to whether the Court of Cassation upheld the family court’s finding that the circumstances necessitated a retrial in this case.
General measures: On 29/11/2007, the authorities reported that the European Court’s judgment had been translated, published in the Judicial Legislation Bulletin and made available on the Ministry of Justice website. It is also noted that the Aksaray Family Court that conducted the retrial, reasoned that the European Court’s judgment was to be given direct effect.
Assessment: Under these circumstances, no further general measure is necessary.

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided as to whether the family court’s ruling has become final.

60999/00 Satık No. 2, judgment of 08/07/2008, final on 08/10/2008
This case concerns the violation of the applicant’s right to be heard by an independent and impartial tribunal, due to his conviction by a military court for disloyalty to the national defence through espionage. The European Court found that the military courts which tried the applicant, entirely composed of military judges, could not be regarded as independent and impartial (violation of Article 6§1).
Individual measures:
Confirmation is awaited of the erasure of all consequences of the violation found, namely the removal of the applicant's conviction from his criminal record.
General measures: The measures taken are being examined within the context of the Ergin No. 6 group of cases (47533/99, Section 4.2).

The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on individual measures.

1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1059th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.

2 Inclusion of cases in this Section does not exclude the possibility that general measures may be examined at subsequent meetings.

3 The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

4 The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

5 The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).

6 The Deputies decided to postpone consideration of this case to the 1065th meeting (September 2009) (DH).

7 The Deputies decided to postpone consideration of this case to the 1065th meeting (September 2009) (DH).

8 The Deputies decided to postpone consideration of this case to the 1065th meeting (September 2009) (DH).

9 The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

10 The Deputies decided to postpone consideration of these cases to the 1072nd meeting (December 2009) (DH).


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