Ministers’ Deputies
    Agenda

    CM/Del/OJ/DH(2009)1065 Section 4.2 PUBLIC .. .. 30 September 2009

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    1065th meeting (DH), 15-16 September 2009

    - Annotated Agenda1
    - Decisions

    Section 4.2

    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 4.2 – INDIVIDUAL MEASURES AND/OR GENERAL PROBLEMS

    - 1 case against Albania

    37959/02 Xheraj, judgment of 29/07/2008, final on 01/12/2008
    This case concerns a violation of the applicant’s right to a fair trial due to the quashing of a final judgment acquitting him of murder (violation of Article 6§1).
    The applicant was convicted of murder in absentia on 27/11/1996, then acquitted at appeal on 14/12/1998. The appeal court decision became final on 24/12/1998. On 02/10/1999, outside the statutory time-limit, the prosecutor attached to the Durrës Court of Appeal launched appeal proceedings against the acquittal, arguing in particular that the victim’s family had not been notified of the acquittal. The prosecutor’s appeal was successful and the applicant’s acquittal was overturned by the Criminal Division of the Supreme Court on 20/06/2001.
    The European Court noted that the victim’s family did not involve themselves in the trial, although there were a number of options available which permitted their involvement. The European Court also noted that the prosecutor could have appealed the acquittal within the statutory time-limit.
    The European Court concluded that the prosecutor’s appeal and subsequent quashing of the applicant’s acquittal did not strike a fair balance between the interests of the applicant and the effectiveness of the criminal justice system. The Supreme Court’s decision to quash the acquittal was therefore in violation of the principle of legal certainty.
    Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage. In 2002 the applicant was informed that his acquittal had been quashed, following a request by the Albanian authorities for his extradition on the basis of the quashed conviction. At the time, the applicant was in prison in Italy for unrelated offences.
    The European Court found that “the most appropriate form of redress for this continuing situation would be for the applicant’s final acquittal of 14 December 1998 to be confirmed by the authorities and his conviction in breach of the Convention to be erased with effect from that date” (§82).
    It is recalled that information is awaited in confirmation of the applicant’s final acquittal by the authorities and the erasure of his conviction in breach of the Convention. Information would also be welcome on the status of the extradition request.
    General measures: The European Court noted that: “a situation where the final judgment in the applicant’s favour was called into question and reviewed could have been avoided had the prosecutor’s office lodged an ordinary appeal within the statutory ten-day time-limit. … provided for under Article 147§3 of the Code of Criminal Procedure” (§59). And that: “the arguments used by the prosecutor to justify the request for leave to appeal out of time were insufficient to justify challenging the finality of the judgment” (§60).
    • Information provided by the Albanian authorities: The judgment of the European Court was translated and sent for publication to the official publication centre. After its publication a round table will be held with judges, prosecutors, representatives from Ministry of Justice and High Council of Justice to discuss measures to be taken.
    Assessment: The violation appears to flow from the approach of the prosecutor and acceptance of that practice by the domestic courts. Confirmation of the publication of the judgment and its dissemination to the competent authorities is awaited, as well as information on the conclusions of the round table and on any other measure taken or envisaged.

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

    - 2 cases against Armenia

    21638/03 Paykar Yev Haghtanak Ltd, judgment of 20/12/2007, final on 02/06/2008
    The case concerns a violation of the right of access to court due to the refusal by the Court of Cassation to examine the applicant company’s request for deferral of payment of court fees (violation of Article 6§1).
    Individual measures: The European Court awarded the applicant company just satisfaction in respect of non-pecuniary damage. As regards pecuniary damage, the Court stated that it could not speculate as to what the outcome of the trial would have been if the Court of Cassation had examined the applicant company’s cassation appeal. The Court recalled that the finding of a violation imposes on the respondent state a legal obligation to adopt individual measures among others and that in the case of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position in which he would have been had the requirements of this provision not been disregarded. The Court noted in this connection that Article 241.1 of the Code of Civil Procedure allows the reopening of the domestic proceedings.
    Information has been awaited since the first examination of the case in September 2008 on measures taken or envisaged in favour of the applicant. Information on the applicability of Article 241.1 of the CCP would be welcome (who can ask for reopening? is there a deadline for asking for reopening? etc…)
    General measures: The European Court noted the Court of Cassation was prevented from making any assessment of the applicant company’s ability to pay court fees by the express provisions of Article 70§3 of the Code of Civil Procedure which flatly prohibits commercial entities from being exempted from payment of court fees. The Court considered that such a blanket prohibition raised of itself an issue under Article 6§1 of the Convention.
    • Information provided by the Armenian authorities (letter of 8/01/2009): The judgment was translated into Armenian and published on the websites of the Ministry of Justice (www.moj.am), of the Prosecutor’s Office (www.genproc.am), of the Judicial authority of Armenia (www.court.am), of Police of the Republic of Armenia (www.police.am) and of the Court of Cassation, on 2 September 2008.
    It is recalled that the Court concluded in this case that because it flatly prohibits commercial entities from being exempted from payment of court fees, Article 70 § 3 of the Code of Civil Procedure is not in conformity with Article 6§1 of the Convention.
    Information is awaited on a possible amendment to this Article.

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

    32283/04 Meltex Ltd and Mesrop Movsesyan, judgment of 17/06/2008, final on 17/09/2008
    The case concerns a violation of the applicant company’s freedom of expression on account of the refusal, by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting license (violation of Article 10).
    The European Court concluded that there had been an interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression.
    Individual measures: The Court awarded the applicant company just satisfaction in respect of non-pecuniary damage. The Committee of Ministers is currently examining the individual measures to be taken, by the domestic authorities pursuant to Armenia’s obligations under Article 46 of the Convention, in order to erase, as far as possible, the consequences of the violation.
    At the 1043rd meeting (December 2008), the Permanent Representative of Armenia stated that in this case individual measures were very much linked to general measures as a new call for tender would not satisfy the requirements of the European Court’s case-law if the Law on radio and television were not first modified. Furthermore, he invoked certain technical difficulties linked to the transition to digital broadcasting (cf. DD(2008)679).
    On 20/05/2009, the applicant company sent a letter (cf. DD(2009)307E distributed at the 1059th meeting) informing the Committee of Ministers that, on the basis of the European Court’s judgment and of Article 241 of the Code of Civil Procedure (which provides reopening), it lodged two appeals before the Court of Cassation to reopen the proceedings for judicial review in 2004 of the NTRC decisions at issue, but that these two appeals were dismissed on February 2009. The applicant company complains that no individual measure has been taken so far by the authorities following the judgment of the European Court.

    Assessment: In the light of the above, the domestic authorities’ response to the request for individual measures is still awaited. Information is expected in particular on the time-limit within which the authorities intend to organise a new call for tenders, and on possible interim measures envisaged in favour of the applicant company. Furthermore, it is recalled that copies and translation of the two judgments of the Court of Cassation of 2009 have been requested.
    General measures: It appears from the European Court’s judgment that the Law on Television and Radio Broadcasting has been changed since the facts of the case. On 3/12/2003 the law was amended with effect on 31/01/2004 providing that: “...The National Commission shall give proper reasons for its decisions to select a licence-holder, refuse a licence or invalidate a licence”.
    Moreover the Permanent Representative of Armenia informed the Committee of Ministers at the 1043rd meeting (December 2008) that the Law on Radio and Television was being amended in order to be adapted to the switch to digitalisation and to be brought into conformity with the Convention in all respects.
    On 28/04/2009 new amendments to the Law on Radio and Television were adopted.
    Furthermore, the judgment of the Court has been translated into Armenian and published in relevant official publications, both print and electronic, of the Republic of Armenia. The text is available, inter alia, on the official websites of the Ministry of Justice of Armenia, www.moj.am, and of the judiciary of the Republic of Armenia, www.court.am. The Armenian text of the judgment has also been sent to the National Television and Radio Commission and to the Court of Cassation of the Republic of Armenia.
    Information is expected on the relevant provisions of the law of 28/04/2009, in particular on the provisions concerning the obligation of the NTRC to motivate its decisions.

The Deputies,
1. as regards general measures, took note of the information provided by the Armenian authorities concerning the adoption on 28 April 2009 of the amendments to the Law on Television and Radio, Article 31.3 of which provides that the National Television and Radio Commission shall give full reasons for its decisions to award, reject or revoke a broadcasting licence and ensure the transparency and accessibility of its decisions;
2. as regards the individual measures that have to be taken by the domestic authorities to erase as far as possible the consequences of the violation, noted the information according to which a new call for tenders, in which the applicant will be given the possibility to participate, is scheduled to take place in July 2010 and invited the respondent state to keep the Committee informed of all progress made in preparing the call for tenders as well as of any interim measures that they may envisage;
3. further invited, in this respect, the Armenian authorities to provide full information on the remedies pursued by the applicant before the competent national judicial authorities;
4. decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of further information to be provided by the authorities.

    - 14 cases against Austria

      - Cases mainly concerning the length of proceedings concerning civil rights and obligations before administrative authorities and courts

    2884/04 Ortner, judgment of 31/05/2007, final on 31/08/2007
    38032/05 Gierlinger, judgment of 29/11/2007, final on 29/02/2008
    37040/02 Riepl, judgment of 03/02/2005, final on 03/05/2005
    4490/06 Richter, judgment of 18/12/2008, final on 18/03/2009
    These cases concern the excessive length of certain proceedings in determination of civil rights and obligations before administrative authorities and courts (violations of Article 6§1).
    The Ortner case concerns land consolidation proceedings. The period taken into consideration by the European Court began on 1/03/1999 and the proceedings before the administrative authorities were still pending at the date of the European Court’s judgment (having lasted for more than 12 years).
    In the Gierlinger case, the period taken into consideration by the European Court began on 4/05/2000, when the applicant filed objections against the enlargement of a canalisation system and ended on 26/04/2005 (almost 5 years for three levels of jurisdiction, but was pending for 4 years before the Administrative Court).

    In the Riepl case, the period taken into consideration by the European Court began in August 1994 when the applicant’s neighbours appealed against a decision by the Mayor to grant the applicants a building permit and ended in April 2002 with the service of a new building permit (7 years and some 7 months for five levels of jurisdiction). The Court noted in particular the following two lengthy periods attributable to the authorities: some ten months before the Municipal Council, and two years and eight months before the Constitutional Court, before which there was a period of inactivity of almost two years.
    Proceedings in the Richter case began on 7/02/2000 when a mayor dismissed the applicant's objection against the amendment of a building permit granted to his neighbour. They ended on 25/07/2005 when the Administrative Court's decision was served on the applicant's counsel (five years and five and a half months for four levels of jurisdiction).The European Court noted in particular two lengthy periods of inactivity before the Administrative Court, namely between September 2001 and March 2003, and between July 2004 and June 2005, amounting to a total delay of two years and five months.
    The case also concerns the lack of an oral hearing before the Administrative Court (violation of Article 6§1).
    Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants in all cases.
    Except for the Ortner case, the domestic proceedings are closed.
    Information is expected on the state of the pending domestic proceedings and measures for acceleration, if needed.
    General measures:
    1) Length of proceedings before administrative authorities: The cases present similarities to that of G.S. (Final Resolution ResDH(2004)77) for which the Austrian Parliament adopted the Administrative Reform Act 2001, which entered into force on 20 April 2002 and aims at alleviating the case-load of the Administrative Court and accelerating administrative proceedings. They also present similarities to the Alge case (Final Resolution CM/ResDH(2007)110, which takes stock of further general measures taken after the Resolution ResDH(2004)77 had been adopted, mainly measures aimed at reducing the case-load of the Administrative Court.
    • Information on a positive trend concerning the number of lengthy procedures and on recent measures to further reduce the case-load at the Administrative Court was received in April 2008: for a detailed assessment see the group Jancikova (56483/00, Section 4.2).
    • However, due to the fact that the violation in these cases occurred after Resolution ResDH(2004)77 was adopted, information is awaited on any other measure taken or envisaged to avoid excessive length of proceedings before the administrative authorities.
    2) Length of proceedings before the Constitutional Court: The Constitutional Court's 2008 Activity Report (published on 19/04/2009, available online at http://www.verfassungsgerichtshof.at/cms/vfgh-site/attachments/6/6/3/CH0011/CMS1239888247790/taetigkeitsbericht_2008.pdf ) provided statistics showing that the average length of proceedings between 1998 and 2008 was less than 9 months. Therefore the excessive length in the Riepl case seems to be an isolated incident resulting from the particular circumstances.
    Assessment: no further general measure seems necessary concerning the excessive length before the Constitutional Court.
    3) Lack of an oral hearing: The Richter case presents similarities with that of Linsbod (Final Resolution ResDH(98)59, adopted on 22/04/1998), closed following the adoption of legislative changes, and with the Alge group of cases (Final Resolution CM/ResDH(2007)110, adopted on 31/10/2007), according to which the payment of just satisfaction out of the Administrative Court's budget would suffice to prevent new, similar violations. As the violation in this occurred after the adoption of these measures, publication and dissemination of the European Court's judgment to the Administrative Court seem to be necessary.
    Information is awaited in this respect.
    4) Publication and dissemination: Judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). The Riepl judgment was published in German in the Austrian law journal ÖJZ 2005/26. The Administrative and the Constitutional Court receive judgments via the Constitutional Law Service of the Austrian Federal Chancellery.
    Information is expected on the publication of the European Court's judgments in the Ortner and Gierlinger cases and their dissemination to relevant courts and authorities, to raise their awareness of the Convention's requirements as they result from these cases.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in June 2010, in the light of information to be provided on individual and general measures.

      - Cases of length of proceedings concerning the determination of criminal charges before administrative authorities and courts and of lack of an effective remedy

    56483/00 Jancikova, judgment of 07/04/2005, final on 07/07/2005
    39120/03 Bartenbach, judgment of 20/03/2008, final on 20/06/2008
    20597/04 Gürsoy, judgment of 05/06/2008, final on 05/09/2008
    37301/03 Hauser-Sporn, judgment of 07/12/2006, final on 23/05/2007
    28034/04 Müller No. 2, judgment of 18/09/2008, final on 18/12/2008
    25166/05 Schneider, judgment of 31/07/2008, final on 31/10/2008
    18015/03 Schütte, judgment of 26/07/2007, final on 26/10/2007
    18294/03 Stempfer, judgment of 26/07/2007, final on 26/10/2007
    8140/04 Vitzthum, judgment of 26/07/2007, final on 26/10/2007
    These cases concern the excessive length of certain proceedings in determination of criminal charges before 0administrative authorities and courts (violations of Article 6§1) as well as the lack of an effective remedy (violations of Article 13).
    In the Jancikova case, proceedings concerning illegal employment of foreigners began in February 1993 and ended in September 1999 (more than six years), during which period the Independent Administrative Panel (Unabhängiger Verwaltungssenat) had been inactive for some two years and the Administrative Court for one year and almost four months.
    Furthermore, the applicant had no effective remedy against the delays. In particular, Section 51§7 of the Code of Administrative Offences which guarantees a decision on appeals within 15 months did not apply to the present case as more than one party, namely the Labour Office, was entitled to appeal. The European Court noted furthermore that Section 31§3 of the Code of Administrative Offences did not ensure written notification of the Independent Administrative Panel's decision within the statutory time-limit of three years: under Austrian law only the public pronouncement had to be within that time-limit (see §25 of the judgment).
    In the Hauser-Sporn case, proceedings against the applicant concerning an offence under the Road Traffic Act began in February 1995 and ended on 6/11/2003 with the notification of the Administrative Court’s decision, refusing to deal with his complaint (eight years and some nine months). The case had been pending before the two highest courts for more than five years, namely for two years and some six months each before the Constitutional Court and the Administrative Court. In respect of these delays, the applicant had no effective remedy at his disposal.
    The Schutte, Stempfer, Vitzthum and Schneider cases concerned the length of administrative criminal proceedings for driving offences. In Schutte, proceedings lasted for five years, during which there was a period of inactivity of two years before the Administrative Court. In Stempfer, the proceedings lasted for seven years and two and a half months during which time the case had been pending before the Constitutional Court for three and a half years, and there was a period of inactivity for more than two years before the Administrative Court. In Vitzthum, proceedings lasted for four years and two months, including a period of complete inactivity for more than three years before the Administrative Court. In Schneider, proceedings lasted for four years and eight months, during which time the case was pending for three years before the Administrative Court.
    Furthermore, the European Court found in all these cases that the applicants had no effective remedy – either acceleratory nor compensatory – at their disposal.
    In the Bartenbach case, proceedings against the applicants concerning illegal employment of foreigners began in July 1997 and September 1998 and ended in May 2003 with the notification of the Administrative Court’s judgment (five years and nearly ten months, and four years and nine months). The case had been pending for three years and two months before the Administrative Court.
    The case also concerns the inequality of arms in that the Administrative Court failed to provide proof that it had forwarded the observations of the administrative authority to the applicants (violation of Article 6§1).
    In the Gürsoy case, proceedings concerning the applicant’s illegal sojourn began on 28/01/1999 and ended on 1/12/2003 (four years and eleven months). The case had been pending before the Administrative Court for more than two years.
    The Müller No. 2 case concerned proceedings against the applicant for an offence under the Industrial Safety Act, which began on 31/03/1998 and ended on 19/12/2003 (five years and more than eight months). There was a period of inactivity of one year and eight months before the Administrative Court.
    Individual measures: The proceedings are closed in all cases. The European Court awarded just satisfaction in respect of non-pecuniary damage, except in Jancikova where no claim had been made to this end.
    Assessment: no further individual measure is required.

    General measures:
    1) Excessive length of proceedings:
    a) before the Administrative Court: Legislative measures were adopted in 2002 (see case of G.S., judgment of 21/12/1999, Resolution ResDH(2004)77) and further general measures were adopted in the cases of Alge and Schluga (Resolution CM/ResDH (2007)110). The Annual Report 2008 (published in June 2009, available online at http://www.vwgh.gv.at/Content.Node/de/aktuelles/taetigkeitsbericht/taetigkeitsbericht2008.pdf) of the Administrative Court indicates a slight negative trend concerning the average length of proceedings. Furthermore, the absolute number of cases pending for an excessive time (more than 3 years) before the Administrative Court has increased over the last year. Also, the high number of recent complaints means that excessive length of proceedings remains an issue (ibidem, p. 9). Since 2005 the number of new complaints has been exceeding that of judgments/decision taken. To reduce the workload of the Administrative Court, a new Asylum Court, which is dealing with asylum cases, has been set up. Those cases accounted for a considerable part of the workload of the Administrative Court.
    Information is awaited on the further development of the length of proceedings before the Administrative Court, in particular following the establishment of the new Asylum Court, which took up its work in July 2008.
    b) before the Independent Administrative Panel: Only in the Jancikova case the European Court underlined two periods of inactivity before the Independent Administrative Panel. The first period of two years seems to be an isolated incident resulting from the particular circumstances of the case. The second lengthy period occurred between the public pronouncement and the written service of the decision. The Court noted that Austrian law did not provide a time-limit for the notification of a decision after its pronouncement.
    Information would be useful as to whether a possible legislative amendment is envisaged in this respect.
    c) before the Constitutional Court: The Constitutional Court's 2008 Activity Report (published on 19/04/2009, available online at http://www.verfassungsgerichtshof.at/cms/vfgh-site/attachments/6/6/3/CH0011/CMS1239888247790/taetigkeitsbericht_2008.pdf ) provided statistics showing that the average length of proceedings between 1998 and 2008 was less than 9 months. Therefore the excessive length in the cases of Hauser-Sporn and Stempfer seem to be isolated incidents resulting from the particular circumstances.
    The judgments in the Jancikova, Hauser-Sporn, Schutte, Stempfer and Vitzthum cases were transmitted to the Presidents of the Administrative Court and the Constitutional Court. Furthermore, the judgments have been forwarded to a range of federal and regional public authorities and published on the websites of the Constitutional Service of the Austrian Chancellery (http://bka.gv.at/DocView.axd?CobId=29401) and the Austrian Human Rights Institute (www.menschenrechte.ac.at).
    Assessment: no further general measure seems necessary concerning the excessive length before the Constitutional Court.
    2) Violation of equality of arms: The European Court noted in the Bartenbach case that it had no reason to doubt that the Administrative Court, as a rule, forwarded observations in order to obtain counterstatements from the concerned parties (§33 of the judgment). Thus, the violation in this case resulted from a single lapse occurring before the Administrative Court. The Court’s judgment was published in various legal journals (the Newsletter of the Austrian Human Rights Institute, NL 2008, p.78; available online at http://www.menschenrechte.ac.at/docs/08_2/08_2_04; and ÖJZ 2008, p. 503). On 1/04/2008 it has been sent out to the Administrative Court.
    Assessment: no further general measure seems necessary concerning the violation of equality of arms.
    3) Violation of Article 13:
    Written information is awaited on existing or envisaged measures to safeguard individuals effectively against lengthy criminal proceedings before administrative courts.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in June 2010, in the light of further information to be provided on general measures.

    32407/04 Donner, judgment of 22/02/2007, final on 22/05/2007
    The case concerns the excessive length of certain criminal proceedings (14 years and some 8 months before three levels of jurisdiction) (violation of Article 6§1).
    The proceedings began on 27/12/1989 with an investigation on tax evasion by the Salzburg Tax office, followed by criminal investigations of the Public Prosecutor’s Office. On 19/08/2004 the Court of Appeal gave its final judgment, rejecting the applicant’s appeal and confirming the Regional Court’s conviction of the applicant.

    The European Court noted that the case was altogether pending for more than six years before the investigating administrative authorities (Salzburg Tax office and Public Prosecutor’s Office). Furthermore, while pending before the courts the case was not dealt with from the end of 2000 until 2002. Moreover, the Court found that the Regional Court’s judgment, when referring to the excessive length as one factor of four mitigating circumstances for the reduction of the applicant’s sentence, failed to afford express and quantifiable redress for the breach of the reasonable time requirement.
    The case also concerns the lack of an effective remedy for the applicant to complain about the excessive length (violation of Article 13). The applicant could have made use of section 91 of the Austrian Courts Act during the proceedings before the Regional Court, which could be regarded as an effective remedy. However, the Court's finding of a violation of Article 6 had in particular regard to the substantial delays occurred before the investigating authorities where the applicant had no remedy at his disposal to speed up the proceedings. A hierarchical complaint under Section 37 of the Public Prosecutor’s Act, was not considered as an effective remedy by the Court.
    Individual measures: The proceedings are over. The European Court made no award for just satisfaction in the absence of a request by the applicant.
    Assessment: no further individual measure is required.
    General measures:
    1) Excessive length of proceedings before tax authorities and the Public Prosecutor’s Office:
    Information is awaited on measures taken/envisaged to prevent similar violations of Article 6§1.
    2) Violation of Article 13
    Written information is awaited on existing or envisaged measures to safeguard individuals effectively against lengthy criminal proceedings before tax authorities and the Public Prosecutor’s Office.
    3) Publication and dissemination: The European Court’s judgment was published in the Newsletter of the Austrian Human Rights Institute (NL 2007, p.34 (NL 07/1/15), available online at http://www.menschenrechte.ac.at/docs/07_1/07_1_15).
    Information is awaited on the dissemination of the judgment.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in June 2010, in the light of further information to be provided on general measures.

    - 2 cases against Azerbaijan

    16528/05 Hajibeyli, judgment of 10/07/2008, final on 10/10/2008
    The case concerns the excessive length of certain criminal proceedings against the applicant who was charged with obstructing state officials following his participation in a demonstration in Baku (violation of Article 6§1).The proceedings lasted more than five years and four months, from 4/05/2000 to 14/09/2005 (three years and five months in the post-ratification period, as the Convention entered into force with respect to Azerbaijan on 15/04/2002) and were discontinued while still at the investigation stage.
    The European Court reiterated, in this respect, that an accused in criminal proceedings should be entitled to have his case conducted with special diligence and that, in criminal matters, Article 6 is designed to avoid a person charged remaining too long in a state of uncertainty about the outcome of the proceedings.
    The case also concerns an infringement of the applicant’s right to freedom of movement (violation of Article 2 of Protocol No. 4) in that the applicant was prohibited from leaving his place of residence from 23/05/2000 to 14/09/2005.
    The European Court found that, in respect of the restriction in its entirety, a fair balance between the demands of the general interest and the applicant’s rights was not achieved, in particular in view of the fact that the investigation had clearly failed to produce any results and the case ended up being discontinued on account of the expiry of the criminal limitation period. The Court found in addition that this restriction was not “in accordance with the law” from 30/04 to 14/09/2005 since although the charges against the applicant became time-barred on 30/04/2005, the preventive measure was not lifted until 14/09/2005.
    Individual measures The Court awarded just satisfaction to the applicant in respect of non-pecuniary damage. The proceedings are closed. The restriction on the applicant’s freedom of movement has been lifted.
    Assessment: No individual measure seems necessary.

    General measures
    1) Violation of Article 6§1: It appears from the Court’s judgment that the prosecutor decided to suspend the investigation on the applicant’s case on 25/0/2001, because one of the co-accused had absconded and “other accomplices” were not identified. The investigation was resumed on 24/08/2005 at the applicant’s request.
    The European Court noted that:
    - nothing in the case-file indicates that any procedural activity was carried out during the three years and four months which fell within the period after the Convention’s entry into force in respect of Azerbaijan. No information has been provided as to whether the prosecution had complied with their duties under the Code of Criminal Procedure (CCP) and taken the necessary measures to find the co-accused and the other missing persons and thus eliminate the ground for the continued suspension of the proceedings;
    - in accordance with the CCP, the proceedings against the co-accused could have been severed and suspended, while the proceedings against the applicant continued. Neither the domestic authorities, in their respective decisions, nor the government have advanced any plausible explanation as to the reasons for not choosing this procedural alternative;
    - the proceedings against the applicant were continued even after the charges against him had become time-barred.
    Information provided by the Azerbaijani authorities (letter of 1/07/09): The European Court’s judgment was translated and published in the Human Rights Bulletin No. 7/2008. The judgment has been sent out to judges (in particular judges of Courts of Appeal) and other legal professionals, as well as being included in the curricula for the training of judges, prosecutors and candidates to the position of judge.
    Information on the following points is awaited:
    - dissemination of the European Court's judgment to Prosecutors and Criminal courts with a circular drawing their attention to the shortcomings underlined by the Court in the present judgment and to means to avoid such shortcomings.
    - measures envisaged to avoid the repetition of the violation found in this case;
    - as well as , pursuant to the Committee of Ministers' practice since the adoption of Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of internal remedies, information on the existence of an effective remedy, both in law and in practice, to complain about the length of proceedings.
    2) Violation of Article 2 of Protocol No. 4: The European Court underlined that, although the applicant complained before a district court that he still remained under the obligation not to leave his place of residence pending the eventual end of the unreasonably lengthy investigation, there had been no review of the necessity of the continued restriction of his freedom of movement.
    Information is awaited on existing review proceedings of measures restricting the freedom of movement and, examples of concrete application of these proceedings would be welcomed.

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

    34640/02 Rahmanova, judgment of 10/07/2008, final on 10/10/2008
    The case concerns a violation of the applicant’s right of access to a court on account of the quashing, by the Plenum of the Supreme Court, of a final judicial decision in her favour and the delivery of a new decision on the merits, following an additional cassation procedure (violation of Article 6§1) .
    The dispute concerned the applicant’s daughter in law right to reside in the applicant’s apartment after her divorce. By decision of 11/01/2002, the Supreme Court upheld the decision of a court of appeal according to the applicant’s daughter in law had never acquired residence rights on the applicant’s apartment. By decision of 19 July 2002, the Plenum of the Supreme Court « vary » the judgment of the Supreme Court and ordered that the applicant’s daughter in law and her children be allowed to move into the applicant’s apartment.
    The case also concerns a violation of the applicant’s right to peaceful enjoyment of her possessions in as much the decision of the Supreme court of 19July 2002 constituted an interference in this right, interference for which neither the Plenum of the Supreme court in is decision nor the Government before the Court have sought to offer any justification (violation of Article 1 Protocol No. 1).
    Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The applicant eventually sold her apartment to her daughter-in-law.
    Assessment: No measure seems necessary
    • Information provided by the Azerbaijani authorities (letter of 1/07/2009): The Plenary of the Supreme Court has re-examined the applicant’s case and, having noted that the applicant had sold her apartment, decided that it was not necessary to re-examine its judgment of 19/07/2002).

    General measures:
    1) Violation of Article 6§1: The Court reaffirms that the procedure of additional cassation, available after the Supreme Court’s final decision, constituted in its essence an indirect, extraordinary appeal.
    The Court reiterates that the principle of legal certainty insists that no party is entitled to seek a reopening of proceedings merely for the purpose of a rehearing and a fresh examination of the case. The power to quash or alter binding and enforceable judicial decisions should be exercised to correct fundamental defects, but not to carry out a fresh examination. The review should not constitute an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination.
    In its reasoning the Court noted that it had previously found a violation of the principle of legal certainty and an applicant’s “right to court” in many cases in which a judicial decision that had become final and binding was subsequently quashed by a higher court on an application by a State official whose power to intervene was not subject to any time-limit (Brumărescu v. Romania; Ryabykh v. Russia; Volkova v. Russia).
    The Court then noted that Article 426.2 of the Azerbaijani Code of criminal procedure provides for a two-month time-limit for filing further appeals on point of law and re-opening proceedings but that, following such an appeal, there appeared to be no specific time-limit for the actual review of the case by the Plenum. Lastly the Court noted that, following a request for a further appeal on points of law made by one of the parties, the decision whether to submit a case for review by the Plenum review was ultimately within the discretionary power of the President of the Supreme Court (see Articles 423 and 426 of the CCP and Article 83 of the Law on Courts and Judges).
    • Information provided by the Azerbaijani authorities (letter of 1/07/2009): The European Court’s judgment has been translated and published in the Human Rights Bulletin No. 7/2008. It has also been sent out to judges, in particular in Appeal Courts and to other legal professionals and has been included in the training programme for judges, prosecutors and candidates for the post of judge.
    Information is awaited on measures taken or envisaged to avoid repetition of this violation and to bring the procedure concerning additional appeals on points of law into conformity with the Convention.
    2) Violation of Article 1 of Protocol No. 1: Publication and dissemination of the European Court's judgment are also indispensable measures with regard to this violation.

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

    - 2 cases against Belgium

    20656/03 Loncke, judgment of 25/09/2007, final on 25/12/20072

    58081/00+ Leschiutta and Fraccaro, judgment of 17/07/2008, final on 17/10/20083

    - 1 case against Bosnia and Herzegovina

    22893/05 Rodić and 3 others, judgment of 27/05/2008, final on 01/12/2008
    The case concerns the authorities’ failure in their obligation to protect the applicants, prisoners of Serb or Croatian origin convicted of war crimes against Bosniacs, from persecution by their fellow prisoners in Zenica Prison, hosting approximately 90 per cent Bosniac prisoners. The actual incidents varied from spitting in their food and spilling water on their beds to death threats and beatings, from their arrival in Zenica prison in 2004 and 2005 respectively until they were provided with separate accommodation in the prison hospital unit (violation of Article 3).
    The European Court noted that despite the serious risk to the applicants’ physical well-being, no specific security measures were introduced in the prison. The applicants were provided with separate accommodation in the Zenica Prison hospital unit only after two severe attacks on two applicants, their declaration of a hunger strike and the consequent media attention, which occurred almost ten months after the first of the applicants had arrived in Zenica Prison (§72).

    The case also concerns the lack of an effective remedy at the applicants’ disposal in relation to their complaints under Article 3 (violation of Article 13).
    In this respect, the European Court noted that while a petition to prison inspectors at the Ministry of Justice, in combination with a constitutional appeal, is capable of providing redress for the alleged breaches, it appeared that the system of prison inspections has not been functioning in the Federation of Bosnia and Herzegovina since 2004 (§58). In fact, there were two prison inspector posts in the Federation of Bosnia and Herzegovina, which have been vacant since 2004 (§45).
    Individual measures: The European Court noted that all applicants have been transferred to Mostar Prison (§§24, 26, 29). Just satisfaction has been awarded to all of them.
    Information provided by the Bosnian authorities (02/07/2009): The applicant Milorad Rodić was conditionaly released on 30/12/2008. His prison sentence expired on 14/03/2009. The other applicants are still serving their sentence in Mostar Prison. The authorities provided a report prepared by Mostar Prison in respect of the three applicants remaining in prison. The report indicates that they are satisfied with the conditions in Mostar Prison and that they have not raised any complaints with the Mostar Prison authorities so far.
    Assessment: In view of the circumstances, no other individual measure appears necessary.
    General measures: The Secretariat sent an initial-phase letter to the authorities of Bosnia and Herzegovina regarding the general measures taken or envisaged.
    1) Violation of Article 3: The issues concerning the prevalent violence in Zenica Prison were also criticised in the CPT reports (see the most recent CPT/Inf (2007) 34). In particular, the CPT delegation heard about a number of incidents of inter-prisoner violence. It further stated that “not surprisingly, certain prisoners appeared to be fearful for their safety”.
    Information provided by the Bosnian authorities (02/07/2009): The 2009 Budget of the Federation of Bosnia and Herzegovina (the “Federation”) earmarked an amount of 8 million Bosnian Markas for improving conditions in prisons. The funds should be used, inter alia, for construction of a separate pavilion in Zenica Prison to accommodate 54 prisoners belonging to risk groups, such as the war-crime convicts. The authorities of the Federation plan to resolve the problem of inter-ethnic violence in prisons by separating prisoners belonging to risk groups, such as the war crime-convicts, as soon as the facilities are constructed.
    Information is awaited on the schedule for completing of the separate pavilion in Zenica Prison intended to separate prisoners belonging to risk groups, including the war-crime convicts.
    2) Violation of Article 13:
    Information provided by the Bosnian authorities (02/07/2009): The Federation authorities filled both vacant positions of prison inspectors at the Ministry of Justice on 30/05/2008 and 19/01/2009. They have received around 50 complaints from prisoners so far and ordered the prison authorities to take specific measures in eight cases. The Bosnian authorities also provided an example of the report issued by a prison inspector in respect of a complaint raising safety concerns.
    Assessment: The European Court considered that a petition to prison inspectors at the Ministry of Justice, in combination with a constitutional appeal, is capable of providing redress for the alleged breaches. However, it found that the petition to prison inspectors did not constitute an effective remedy because all positions of the prison inspectors have been vacant and because the system of prison inspections has not been functioning in the Federation since 2004. On the basis of the available information, it appears that the authorities resolved the problem by filling all positions of prison inspectors. Therefore, the system of prison inspections has resumed in the Federation and prisoners have begun to use this remedy. It thus appears that the measures taken are capable of preventing similar violations in the future.
    3) Publication and dissemination: The European Court’s judgment was published in the Official Gazette of Bosnia and Herzegovina (No. 18/09) and forwarded to all relevant authorities involved in the present case.

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

    - 13 cases against Bulgaria

    52435/99 Ivanova, judgment of 12/04/2007, final on 12/07/20074

    15197/02 Petrov, judgment of 22/05/2008, final on 22/08/20085

    44009/02 Ivanov Evgeni, judgment of 22/05/2008, final on 22/08/20086
    73481/01 Bochev, judgment of 13/11/2008, final on 13/02/2009
    15158/02 Kirilov, judgment of 22/05/2008, final on 22/08/2008

      - Cases concerning infringements of the freedom of assembly of organisations which aim to achieve “the recognition of the Macedonian minority in Bulgaria” and of their members

    44079/98 United Macedonian Organisation Ilinden and Ivanov, judgment of 20/10/2005, final on 15/02/2006
    46336/99 Ivanov and others, judgment of 24/11/2005, final on 24/02/2006
    These cases relate to the unjustified prohibition of a number of commemorative meetings between 1998 and 2003 in south-west Bulgaria and in Sofia (violations of Article 11).
    The European Court noted with concern that one of the prohibitions was imposed in 2003 on grounds, which had been previously declared contrary to the Convention in the case of Stankov and the United Macedonian Organisation Ilinden against Bulgaria (judgment of 02/10/2001). The European Court also observed that on one occasion the authorities appeared somewhat reluctant to take all appropriate measures to prevent violent acts directed against the participants in Ilinden's rally. The last case also relates to the lack of an effective remedy at the applicants' disposal to complain against the prohibitions of their meetings (violation of Article 13). The European Court noted that the possibility to seek judicial review of such bans before the competent courts in accordance with Article 12§6 of the Meetings and Marches Act could in principle operate effectively. However, it was rendered ineffective in the applicants' case on account of the way it was applied by the competent courts.
    The European Court recalled its case-law according to which grounds such as threat of disruption of the public order or danger for the territorial integrity and the security of the country could not justify restrictions to the freedom of assembly when there is no real foreseeable risk of violent action and the initiators of the meeting in question had not hinted at any intention to use violence or other undemocratic means to achieve their aims (see also the judgment of Stankov and UMO Ilinden v. Bulgaria, cited above). The Court also noted that the risk that some of the participants in the rallies might broadcast separatist slogans could not itself justify their banning.
    Individual measures:
    1) Meetings in 2006-2007: The Bulgarian authorities informed the Committee that in 2006 only 2 out of 10 requests for organisation of meetings were rejected. One of the refusals concerned a meeting room reserved for another event; the information provided gives no more details concerning the other. The police ensured the security of the participants and the public order at the authorised meetings. However, it should be noted in this respect that another application is at present pending before the European Court relating to prohibitions of meetings organised by the applicants, scheduled initially respectively between 2004-2008 and in September 2006 (see in particular DD(2008)553).
    Moreover, the applicants complained before the Committee in April 2007 of the ban by the Governor of a commemorative meeting they organised for 22/04/2007 (see DD(2007)224). The Committee noted this ban with concern as it was based on grounds already incriminated by the European Court, but noted in this respect with satisfaction that the meeting in question had nevertheless taken place, in particular following the intervention of the Agent of the Government (see the decision adopted by the Committee at the 997th meeting, June 2007). According to the applicants, in fact the meeting in question did not take place as they claim to have encountered various problems related to the transportation of the participants, the behaviour of the police and the fact that no music, speeches, laying of wreaths or raising of flags had been allowed in practice. They lodged a new application with the European Court with regard to these facts (see DD(2008)553).

    2) Meetings in 2008: The Bulgarian authorities indicated that the United Macedonian Organisation Ilinden – Pirin had declared itself satisfied, in certain publications on its website, with the organisation of two recent commemorative meetings (which took place on 20/04/2008 and on 04/05/2008). The authorities specified that the presence of a great number of police officers, which was criticised by the applicants, was necessary to ensure the protection of the participants in these meetings against possible violent counter-demonstrations. The authorities observed that the absence of such a protection was criticised by the European Court in the judgment of the United Macedonian Organisation Ilinden and Ivanov (see §115 of the judgment).
    Assessment: The awareness-raising measures below, as well as the measures concerning the effectiveness of the domestic remedies in the field of freedom of peaceful meetings are also relevant for the individual measures. Additional information would be appreciated on the applicants’ meetings since June 2008.
    General measures:
    1) Organisation of peaceful meetings: The authorities recalled that following the judgment of Stankov and the United Macedonian Organisation Ilinden of 2001 (Final Resolution ResDH(2004)78), a copy of the judgment translated into Bulgarian and accompanied by a circular letter was sent to the mayors of the towns of Petrich and Sandanski, directly concerned by this case. As the violations found in the present cases also concern other towns, the judgments of the European Court were also sent to the mayors of Sofia and Blagoevgrad, to draw their attention to the requirements of the Convention and to ensure that domestic law is interpreted in conformity with it.
    The judgments were also sent to the district courts of the cities cited above, as well as to the competent prosecutors and to the directors of the National Security Service, of the Police Directorate of Sofia and of the Directorate of the Interior of Blagoevgrad. The dissemination of the judgments in these cases was made by a letter drawing the authorities' attention to the main conclusion of the European Court in these cases, as well as to the fact that this communication was made within the framework of the adoption of the general measures for the execution of the European Court's judgments.
    These judgments were also be included in 2007 in the programme of seminars on the Convention and the case-law of the European Court organised by the by the National Institute of Justice (more that 23 seminars for more than 798 participants - judges, prosecutors and national experts - took place in the period 2001-2006, of which 3 seminars on Article 11). A seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in October 2007. Another seminar on this subject, for judges, prosecutors, representatives of the Ombudsman’s Office, lawyers and NGOs was organised in December 2007 by the Ministry of Justice and the Department for execution of the judgments. Yet another training activity for mayors and police chiefs took place in May 2008. Another seminar for judges and prosecutors on freedom of association and assembly with the participation of the Council of Europe was organised by the National Institute of Justice in June 2008. In October 2008 a group of judges from the Supreme Court of Cassation, of prosecutors and of representatives of the Government Agent’s Office paid a study visit to the Council of Europe during which they participated in a working seminar.
    Contacts are under way regarding these training and awareness-raising measures.
    2) Effective remedies: A reflection was carried out within the Ministry of Justice on the need to amend the Meetings and Marches Act.
    a) 2007 Bill: In June 2007 the authorities informed the Committee that a draft law amending the Meetings and Marches Act had been submitted to Parliament. According to this text, organisers of meetings and demonstrations to take place outdoors must inform the mayor's office of the district concerned 48 hours in advance. The mayor may ban a meeting for the reasons set out in the law, no later that 24 hours after the notification by the organisers. The mayor's decision may be appealed before the competent district court, which must give its decision, which is final, within in 3 days.
    It emerges from the information provided that the grounds on which a meeting may be banned, according to the law currently into force, appear to make it possible to apply the law in conformity with the Convention, taking into account the awareness and training activities planned. These grounds are not changed in the draft law. On the other hand, the Bulgarian authorities have been invited to consider the possibility of better arranging different time-limits provided by the draft law in order to allow that complaints against meeting bans may be examined before the date intended for the meeting.
    b) 2008 Bill: The Bulgarian authorities indicated on 16/10/08 that a Bill on Meetings and Marches had been submitted to the Bulgarian Parliament. The text of the Bill was provided. It this Bill, the grounds on which a meeting may be banned, according to the law currently into force, remain unchanged (see above). In addition, according to Article 12(4), the competent district court must give its decision on appeal against the mayor’s decision to ban a meeting within in 24 hours. The court’s decision is final.
    Assessment: the provisions of the latest draft law of which the Committee has been informed have taken into account the considerations formulated as regards the possibility of better arranging different time-limits provided by the draft law in order to allow complaints against meeting bans to be examined before the date intended for the meeting.
    Additional information is awaited on the time frame for the adoption of the 2008 Bill amending Meetings and Marches Act.

    The Deputies decided to resume consideration of these cases at the latest at their DH meeting in March 2010 for examination of the individual and general measures.

      - Cases mainly concerning the interception of the applicants’ telephone conversations7

    62540/00 Association for European Integration and Human Rights and Ekimdzhiev, judgment of 28/06/2007, final on 30/01/2008
    5182/02 Kirov, judgment of 22/05/2008, final on 22/08/2008

    50899/99 Yordanov Krasimir, judgment of 15/02/2007, final on 15/05/20078

9808/02 Stoichkov, judgment of 24/03/2005, final on 24/06/20059

    66455/01 Bulinwar OOD and Hrusanov, judgment of 12/04/2007, final on 12/07/200710

    17868/07 Mihaylov Kostadin, judgment of 27/03/2008, final on 27/06/200811

    - 2 cases against Croatia

    11223/04 X., judgment of 17/07/2008, final on 01/12/200812

    43595/06 Bačić, judgment of 19/06/2008, final on 01/12/200813

    - 1 case against Estonia

    - Case of length of civil proceedings and lack of an effective remedy
    11548/04 Saarekallas Oü, judgment of 08/11/2007, final on 08/02/2008
    This case concerns the excessive length of civil proceedings which lasted from 1998 to 2006 (violation of Article 6§1).
    It also concerns the absence of an effective remedy at the applicant company’s disposal whereby it might have sought to expedite the proceedings or redress for delays that had already occurred (violation of Article 13).
    The European Court, noting that the Code of Civil Procedure Code set several time-limits to ensure that proceedings were conducted within a reasonable time, did not consider that the domestic court’s failure to comply with these time-limits could have resulted in any legal consequences. Neither was it shown that an appeal against the first-instance court’s decisions on adjournment or suspension of proceedings could have expedited them (§65). Regarding compensatory remedies, the European Court was unable to conclude that one existed which was effective in practice as well as in law, as the government had not referred to any case in which compensation for excessive length of proceedings had been awarded (§66).
    In a similar case (Missenjov, application No. 43276/06, judgment of 29/01/2009, see Section 2.2), the European Court found that the possibility provided by Article 177§5 of the Code of Civil Procedure to appeal against a court ruling adjourning a hearing for more than three months, could have no significant effect on the length of the proceedings as a whole (§48).

    Moreover, it appeared from the case-law of the Supreme Court examined in the Missenjov case that the higher court could not oblige a lower court to resolve the case before it or take any specific procedural steps within a certain time-limit nor could it give the lower court any other binding instructions to expedite proceedings (§47).
    Individual measures: The proceedings were closed in 2006. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
    Assessment: no further individual measure appears necessary.
    General measures:
    Background information: The European Court found a violation on grounds of excessive length of proceedings against Estonia for the first time in the case of Treial (Resolution CM/ResDH(2007)152). The Estonian authorities informed the Committee in the context of that case that there was no systemic problem of length of proceedings in Estonia and that the Estonian courts gave direct effect to the case-law of the European Court. Thus the publication and dissemination of the judgment was considered a sufficient measure to prevent similar violations. In the context of the Treial case, the Committee also assessed measures taken regarding the remedies for excessive length of proceedings. These measures included the adoption of the Code of Civil Procedure in 2006 (in particular, Article 177§5 mentioned above) and the possibility to complain of the excessive length of proceedings before the administrative courts on the basis of the Constitution, the Convention, the Administrative Procedure Code and the case-law of the Supreme Court.
    However, following the violations found in the present case and in the case of Missenjov, the Estonian authorities provided the information that appears below. It may be noted that there is no similar casepending before the European Court.
    Information provided by the Estonian authorities (25/04/2008 and 24/06/2009): The Estonian authorities reiterated that the excessive length of civil proceedings is not a systemic problem in Estonia.
    Regarding the effective remedies for excessive length of proceedings, the Estonian authorities provided the following information:
    (a) Acceleratory remedy: The Ministry of Justice has drafted amendments to the Code of Civil Procedure to introduce a special remedy to expedite civil proceedings by providing that higher courts will be able to order lower courts involved in the particular proceedings to take procedural steps within a specified time-limit.
    (b) Compensatory remedy: The Estonian authorities drew attention to a new decision of the Supreme Court rendered in December 2008 (No. 3-4-1-12-08). The Supreme Court stated that a party may apply for damages resulting from the excessive length of proceedings before an administrative court. It also stressed in its judgment that recourse to the administrative court was possible both after a final decision has been made as well as while the underlying proceedings were pending.
    Assessment: Note is taken of the legislative amendments proposed, which should introduce an acceleratory remedy for the excessive length of civil proceedings. The draft amendments provide the possibility for parties to the proceedings to lodge an application for acceleration of the proceedings if the court was dilatory in taking any procedural step. The European Court found, for example, that a similar preventive remedy introduced in Austria was effective (see Holzinger (No. 1), application no. 23459/94).
    Note is also taken of the positive development in the case-law of the Supreme Court, which allows a compensatory remedy specifically for the excessive length of proceedings. In this regard, it is noted that the European Court found the previous case-law of the Supreme Court to be an ineffective remedy on the ground that the respondent state had made no reference to any case in which compensation had been awarded for excessive length of proceedings (§66). The Supreme Court did not refer specifically in previous decisions to compensation for excessive length of proceedings but rather found that administrative courts were authorised to award compensation to individuals for actions – including delays – of public authorities even in cases where no specific legal provisions existed to that effect (§59). However, it appears that the decision of the Supreme Court rendered in December 2008 specifically authorised compensation for damages resulting from excessive length of proceedings. Thus, it seems that the shortcomings criticised by the European Court with respect to the previous case-law have been remedied.
    Information is awaited on the progress of the amendments to introduce an effective acceleratory remedy in respect of the excessive length of civil proceedings.

    • Publication and dissemination: The European Court’s judgment was translated into Estonian and placed on the website of the Council of Europe Information Office (www.coe.ee). It has been distributed to all courts and other authorities concerned.

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

    - 4 cases against Finland

    50882/99 Sallinen Petri and others, judgment of 27/09/2005, final on 27/12/2005
    The case concerns search and seizure of privileged material at the first applicant’s law firm in the course of police investigation and also affecting the rights of his clients (violation of Article 8).
    The European Court found that the Finnish law did not provide proper legal safeguards in that it was unclear about the circumstances in which privileged material could be subject to search and seizure. The interference in question was thus not “in accordance with the law” in the meaning of Article 8 and the applicants were therefore deprived of the protection to which they were entitled.
    Individual measures: Taking into account that the seized material has either been returned to the first applicant or destroyed and that the other consequences of the violation found in this case have been redressed by the European Court through the award of a just satisfaction compensating the non-pecuniary damage suffered by the applicants, no further individual measure seems necessary.
    General measures: The Deputy Chancellor of Justice invited the Ministry of Justice to examine whether there was a need to amend the legislation in order to clarify the relationship between the Coercive Measures Act, the Code of Judicial Procedure and the Advocates Act. A report on the reform of the Coercive Measures Act and some other acts was thus presented in May 2009 and circulated for comments due at the end of August 2009. A governmental proposal on the reform should be submitted to Parliament in spring 2010; the new legislation could then enter into force at the earliest at the beginning of 2012.
    The proposed new Coercive Measures Act should contain the same prohibitions of seizure related to the privilege or duty to refuse to give evidence, but significant changes are proposed to the regulation concerning search conducted before seizure.
    A new type of search, the “special search of premises”, would be introduced where the premises (e.g. a law firm) may be presumed to contain information on which a person cannot testify at trial or which he or she may refuse to reveal. It would be up to a court to decide on conducting a special search of premises and on assigning a search ombudsman who will supervise that the above information is not seized or copied. The police officer conducting the search should take due account of the ombudsman’s opinion on the suitability of the information for seizure. If, during the search, material is seized against the ombudsman’s opinion, this material should not be examined further and should be sealed; the question of examining and using such material will have to be referred to a court. The proposal includes also provisions on the state’s liability for damages caused by the use of coercive measures during the special search of premises. Damages would be payable for personal injury and damage to property, financial loss and suffering.
    The judgment of the European Court has been translated and published in the Finlex database (www.finlex.fi) and sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Supreme Court, the Supreme Administrative Court, the Ministry of Justice, the Office of the Prosecutor General, the Central Criminal Police, the District Court of Joensuu, the Court of Appeal of Eastern Finland, the Finnish Bar Association and the Finnish Federation of Lawyers.
    Information is awaited on the progress of the legislative process and, if need be, on interim measures applicable until the entry into force of the new law. A copy of the governmental proposal would also be useful.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of further information to be provided on general measures.

    10163/02 Johansson, judgment of 06/09/2007, final on 06/12/2007
    This case concerns a violation of the applicant’s right to respect for their private and family life due to the refusal of the Finnish authorities (the Population Registration Authority) to register the name “Axl” for their son born in 1999, on the ground that the spelling did not comply with Finnish name practice (violation of Article 8).
    The European Court’s finding of a violation was based not least on the fact that the name thus spelt had already gained acceptance in Finland. Three people with the same name were found in the official Population Information System when the applicants' son was born, and, subsequently, at least two other children have been given this name. At least four of them were Finnish nationals. According to the European Court, a fair balance had thus not been struck between the public interest considerations and the interests claimed by the applicants.
    Individual measures: The Court awarded the applicants just satisfaction in respect of the non-pecuniary damages suffered.
    The Finnish authorities informed the Secretariat that the applicants’ son has been given the forename of their choice.
    Assessment: no further individual measure appears necessary.
    General measures: An excerpt from the judgment in Finnish was published in the legal database Finlex (www.finlex.fi) and the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament/Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministry of Justice, the Office of the Prosecutor General, the Helsinki Administrative Court, the Population Register center and the Hyvinkää local register office.
    As to other general measures, the Finnish authorities stated (on 30/06/2009) that further information was being gathered and would be submitted as soon as possible.
    Additional information as announced above would be appreciated.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of further information to be provided on general measures.

    40412/98 V., judgment of 24/04/2007, final on 24/07/200714

    68050/01 Ekholm, judgment of 24/07/2007, final on 24/10/2007
    This case concerns the excessive length of certain proceedings before administrative courts (violation of Article 6§1). The proceedings, which concerned a dispute between neighbours, began in 1991 and were still pending when the European Court gave its decision (almost 16 years).
    The case also concerns the competent authorities’ failure to enforce final judicial decisions (violation of Article 6§1). During the proceedings at issue, the case was referred back five times to the competent administrative authority (South Åland Municipal Health Board). For almost ten years, this board refused to comply with the final judicial decisions taken in the proceedings, ordering it to issue appropriate instructions to the applicants’ neighbours (violation Article 6§1).
    Individual measures: The European Court awarded the applicants just satisfaction in respect of both pecuniary and non-pecuniary damages suffered. On 26/04/2006, the Health Board finally complied with the judicial decisions and ordered the applicants’ neighbours to take certain measures within 60 days from the date on which its decision acquired legal force. In 2007, the Administrative Court rejected the appeals introduced by both parties. It was not known to the Court whether any party appealed to the Supreme Administrative Court.
    Information is urgently awaited as to whether the decision of the Health Board has acquired legal force and, if appropriate, on any measure taken to speed up the proceedings at issue.
    General measures:
    1) Failure to comply with a final judicial decision: An excerpt from the judgment was published in Finnish in the Finlex legal database (www.finlex.fi) and the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament / Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice and Social Affairs and Health, the Åland Parliament and the Mariehamn District Court.

    Information is still awaited on measures taken or envisaged to prevent future similar violations and in particular on effective remedies available to applicants in domestic proceedings to complain of non-compliance with final judicial decisions by administrative authorities.
    2) Length of the proceedings: See the Kangasluoma group (48339/99) (1072nd meeting, December 2009).

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

    - 1 case against France

    9375/02 Saoud, judgment of 09/10/2007, final on 09/01/2008
    The case concerns the violation of the right to life of the son and brother of the applicants: his death by suffocation in 1998 was a direct consequence of being held down on the floor by police officers (violation of Article 2).
    The European Court considered that the way in which the applicant, a schizophrenic, was arrested, especially the force exerted by the police, was proportionate to the violence of his behaviour, not least towards members of his family. As to the events following his arrest, the applicant was in a dependant relationship with the public authorities who, as the Court recalled, had a positive obligation to protect his life. This obligation was not respected in this case. Although aware of the young man’s illness and although he no longer presented a danger to others (his feet and hands were restrained) the policemen held him down on the floor for 35 minutes, in the immobilisation position which caused his death. The Court stated that this type of immobilisation (“ventral decubitus”) was considered highly life-threatening. Furthermore, no medical examination, even superficial, was carried out.
    The case also concerns the violation of one of the applicants’ right to a fair trial, in that it was materially impossible for the counsel assigned to her – at a late stage in the proceedings – to file pleadings with the Cour de cassation (violation of Article 6§1). As the applicant had been refused legal aid, she appealed this decision before the First President of the Cour de cassation. This appeal was ultimately successful but in the meantime the reporting judge had already deposited his report which, under Article 590 of the Code of Criminal Procedure extinguished her counsel’s right to file pleadings. The European Court noted that although a civil party’s right to lodge an appeal before the Cour de cassation is a limited right, the decision to grant the applicant legal aid implicitly recognised the existence of serious grounds for appeal and offered her the chance of being defended by specialised counsel.
    Individual measures: In this case the cause of death is known: the Court found (§97) that the fact that Mr Saoud had been held down on the floor was the direct cause of his death by slow suffocation. The Court awarded 20 000 euros to the applicants, who had requested just satisfaction in respect of the non-pecuniary damage sustained, considering the circumstances in which their son and brother had died and the fact that the violation of Article 6 had prevented them from obtaining the criminal conviction of the persons responsible for this death and to mourn properly (§138).
    Bilateral contacts are under way concerning the individual measures which could be envisaged, in particular in the light of information recently provided by the French authorities.
    General measures
    1) Violation of Article 2: In addition to the matters presented above concerning the causes of the violation, the Court regretted that no specific instructions had been given by the French authorities regarding this type of immobilisation technique and that, although professionals trained in first aid were present, no first aid had been given to Mr. Saoud before his cardiac arrest.
    In their letter of 30/06/2009, the French authorities referred to the instructions issued on 8/10/2008 following this judgment, concerning the form of immobilisation criticised by the Court.
    More details in this respect would seem to be necessary.
    2) Violation of Article 6§1:
    Information is awaited on measures taken or envisaged to guarantee the full effect of appeals before the First President of the Cour de cassation against decisions to refuse legal aid.

    3) Publication and dissemination: The judgment of the European Court was published and commented on the intranet site of the Office of European, international and constitutional law of the Directorate of public freedoms and legal affairs of the Ministry of the Interior. All agents of the Ministry and of the external services related to it (central administration, Préfectures, members of the national police) have access.
    In addition, following the judgment, the Head of the General Inspectorate of the National Police issued and disseminated a circular letter to all police services providing them with more precise and concrete guidelines on the circumstances of the use of force et coercion by the police.
    A copy of this circular letter would be useful.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of the information provided, and of further information awaited on individual and general measures.

    - 9 cases against Georgia

      - Cases concerning the lack of effective investigation into the applicants’ allegations of ill-treatment

    73241/01 Davtyan, judgment of 27/07/2006, final on 27/10/2006
    68622/01 Danelia, judgment of 17/10/2006, final on 17/01/2007
    11830/03 Gharibashvili, judgment of 29/07/2008, final on 29/10/2008
    The Davtyan case concerns the lack of effective investigations into the applicant's complaints of 9/11/1999 concerning ill-treatment allegedly suffered in June 1999, while he was in police custody (violation of Article 3 in its procedural aspect). The European Court underlined the fact that the mere launching of an inquiry, which was interrupted at an early stage without ever leading to a final decision, could not be considered as complying with the requirements of the Convention.
    The Danelia case also concerns the absence of investigations by the Georgian authorities to determine the possible responsibility of members of the Ministry of the Interior with regards to alleged torture inflicted on the applicant whilst in police custody in October 2000 (violation of Article 13); this case also concerns the fact that it was impossible for the applicant to be examined by independent medical experts (violation of the procedural aspect of Article 3).
    The Gharibashvili case concerns the absence of an effective investigation on the applicant’s allegations of ill-treatment inflicted to him during his detention at Rustavi Police Station on 23-25 May 2001 (violation of Article 3 under its procedural limb).
    In these three cases, the Court also concluded that, in particular due to the shortcomings in the investigations conducted by the authorities concerned, it could not establish a substantive violation of article 3 of the Convention.
    As regards the shortcomings in the investigations, the Court noted the following:
    In the Davtian case:
    - the investigator in charge of the inquiry did not ask for a medical expertise;
    - the applicant was not given the opportunity to confront the police officers despite having declared that he could recognise the police officer who tortured him ;
    - the investigator failed to interview the only member of the applicant’s family in whom the applicant had confided;
    in the Danelia case:
    - it was not possible for the applicant to be examined by independent medical experts;
    - neither the applicant nor the officials responsible for the applicant during his detention were interviewed;
    - there was no confrontation between the applicant and his alleged torturers.
    In the Gharibashvili case:
    The Court distinguished two periods: the first one, before the communication of the application lodged with the European Court of Human Rights by Mr. Gharibashvili to the government and the second one, after the communication of the application to the Government on 5th December 2005.
    The European Court noted in particular that:
    - the preliminary enquiry was entrusted to the same division of the prosecution authority – the Rustavi District Prosecutor’s Office – of which the alleged perpetrator of the ill-treatment was a member, even though the applicant clearly objected to such an obvious conflict of interests;

    - the applicant himself was never interviewed during the investigation progress. This shortcoming was also noted by the Supreme Court of Georgia, but it was not rectified afterwards;
    - no enquiry was made, and consequently no reply was given, with respect to the allegation of physical abuse by the alleged perpetrator;
    - it was only after the communication of the applicant's complaint to the respondent Government, that the General Prosecutor’s Office decided to open a criminal case, on 24 January 2006, that is almost two years after the applicant lodged a request to that end;
    - the Tbilisi City Prosecutor’s Office relied heavily on the information provided by the Rustavi District Prosecutor’s Office and Rustavi police officers directly or indirectly implicated in the impugned events, without seeking any information from the applicant's witnesses or confronting the applicant himself with the three persons he had directly incriminated;
    - the Tbilisi City Prosecutor’s Office did not consider interviewing the Tbilisi no. 5 Prison doctor who had examined the applicant at the material time and allegedly refused to report the signs of ill-treatment on his body. Lastly, instead of ordering an independent and thorough medical examination of the applicant's state of health, the Tbilisi City Prosecutor’s Office limited the enquiry to reading the prison medical log;
    - the termination of the above investigation was upheld by the domestic courts sitting in camera, without holding oral hearings. No transparent and adversarial procedure in writing took place instead. The Court observes in this connection that a public and adversarial judicial review, even if the court in question is not competent to pursue an independent investigation or make any findings of fact, has the benefit of providing a forum guaranteeing the due process of law in contentious proceedings involving an ill-treatment case, to which the applicant and the prosecution authority are both parties.
    Individual measures: Mr Davtyan was released in September 2005. The European Court awarded him just satisfaction in respect of the non-pecuniary damages sustained. Mr Danelia is no longer in detention. The European Court awarded him just satisfaction in respect of non-pecuniary damages. Mr Gharibashvili did not submit any claim for just satisfaction and accordingly, the Court did not award him any sum on that account.
    The Committee's consistent position in these kinds of cases is that there is a continuing obligation to conduct investigations where a procedural violation of Article 3 is found. Information has been requested from the Georgian authorities as to whether a fresh investigation is possible into the events at issue in these two cases.
    In a letter of 27/03/2007, the Georgian authorities mainly reiterated the arguments relied on before the Court in the context of the complaint concerning Article 3 and added that the applicant, Mr Davtyan, had not lodged an appeal against the prosecutor's decision of 10/12/1999 refusing the opening of an investigation. For that reason they conclude that there is no legal basis to open the investigations in the Davtyan case again. As regards the Danelia case, no reply has been received to date.
    A letter specifying Georgia's obligations regarding individual measures was sent to the Georgian authorities on 23/08/2007.
    In a further letter dated 3/10/2007, the Georgian delegation reproduced part of their previous letter dated 27/03/2007.
    Assessment: In the letter dated 23/08/2007, the Secretariat recalled that “requests for fresh investigations into allegations of torture or ill-treatment are based upon Member states’ obligation to take individual measures in favour of the applicants in order to put an end to the violations found by the Court and erase their consequences so as to achieve as far as possible restitutio in integrum. Against this background, the repetition of arguments already rejected by the Court cannot constitute an adequate response.” The letter also recalled that to date, no reply has been received as regards the Danelia case and that a copy of the decision of 10/12/1999 rejecting Mr Davtyan's complaint was awaited.
    • In April 2009, the Secretariat wrote to the Georgian authorities recalling that information is awaited on how the Georgian authorities intend to comply with their obligation to conduct an investigation and asking the following questions: What are the possibilities in Georgian Law to require the reopening or the resumption of an investigation closed by an investigator? For instance, does the prosecutor have such a power? What authority is competent to draw the consequences of a European Court judgment holding that there has been a violation of Article 3 in its procedural limb and to decide to reopen or resume an investigation?
    Moreover, a copy of the decision of 10/12/1999 (with a translation) by which the prosecutor refused Mr Davtyan's request to open an investigation has been requested again. Copies of the notifications of this decision to the applicant and his lawyer have also been requested.
    • Information provided by the Georgian authorities in reply (letter of 1/07/2009): Article 400 of the Code of Criminal Procedure (CCP) provides the possibility to reopen preliminary inquiries or closed criminal proceedings “if the time-limit of proscription has not expired”;

    Judicial decisions may be re-examined where new circumstances are found or established. Article 593 of the CCP lists these circumstances but a judgment of the European Court is not considered as a new circumstance.
    The following information is awaited in particular: a complete translation of Articles of the CCP mentioned above; and further information on Article 400 of the CPP (e.g. does Article 400 provide time-limits or proscription of the public action) and on its possible application to the cases at issue.
    General measures:
    Information provided by the Georgian authorities (letters of 27/03/2007 and 22/01/2008): Numerous measures have been taken to eliminate torture and ill-treatment in detention and to improve the processing of complaints of torture or ill-treatment. Article 92 of the Law on Imprisonment provides that every person who is admitted into a penitentiary establishment must undergo a medical examination. Any information regarding injuries must be recorded in the “Krebsi” (Daily Notes) of the Penitentiary Department which must be automatically transmitted to the Unit Supervising the Penitentiary Department and Human Rights Protection Unit of the Prosecution Service of Georgia.
    In accordance with Article 263 of the Code of Criminal Procedure, this information is sufficient to allow the automatic opening of a preliminary investigation. An investigation is also initiated as soon as information concerning ill-treatment is received by the prosecutor whether the information emanates from physical or legal persons, local government agencies, officials, operative-investigative authorities or mass media.
    Numerous training programmes have been organised for the law enforcement officers, in particular by the Training Centre of the Prosecutor's Office (created in 2006) and the Training Centre of the Ministry of Internal Affairs (created in 2004). A Code of Ethics for Prosecutors and a Code of Ethics for the Police were adopted in June 2006.
    Statistical data for 2006 show an increase in the number of investigations into allegations of torture and ill-treatment. This increase is the result of the government's willingness to investigate each case of abuse. In 2006, investigation was initiated into 137 cases of torture and ill-treatment. Criminal cases against 16 officials were submitted to courts for trial. 7 officials have been sentenced in 4 criminal cases.
    These judgments were translated into Georgian, published in the Official Gazette (Matsne No. 55 dated 26/11/2007 and Matsne No. 6 dated 26/01/2009) and the cases of Davtyan and Danelia have been sent out to various state bodies. Georgian translations of the cases are also available on the official web-page of the Ministry of Justice of Georgia.
    As regards the specific issue of medical examination by independent experts, the Georgian authorities mentioned in their letter dated 22/01/2008 that Article 364 of the Code of Criminal Procedure provides for the possibility to conduct an expertise at the initiative of one party.
    Assessment: Article 364 of the Code of Criminal Procedure was already in force at the material time in the Danelia case (see §16 page 3 and §30 page 7 of the European Court's judgment); information is therefore awaited on the measures taken to ensure the effectiveness of the application of Article 364 of the Code. Concrete examples of the application of this provision would be useful. Moreover, dissemination of the Court’s judgment, in the case of Gharibashvili, to the Tbilisi regional and appeal Courts and the prosecutors’ office is awaited.
    Lastly, in its letter of 2/04/2009 (see individual measures), the Secretariat noted that the case of Gharibashvili, which is recent, seems to suggest that procedure for investigating allegations of ill-treatments in police custody are not yet in conformity with the Convention.
    • Information provided by the Georgian authorities in reply (letter of 1/07/2009): Article 9 of the Law on Imprisonment provides that investigations of crimes committed in prisons are conducted in conformity with the rules established in the CCP and in particular with Articles 261 (opening of a preliminary inquiry) and 263 §1 (grounds for the opening of an inquiry) ;
    Article 26 §b of the Law on Imprisonment provides the possibility to lodge a complaint against illegal acts of public administration or staff of detention centres;
    Article 73 §b of the Law on Imprisonment provides that an individual may request a medical examination immediately after he/she has been arrested or notified of prosecution ; rejection of such request may be reviewed before the district court which must examine complaints within 24 hours ;
    Article 62 §2 of the CCP provides that competence for investigating crimes allegedly committed by prosecutors, investigators or policemen in particular, is vested in the prosecutor’s investigator, who is distinct from the officials mentioned above.

    •This information is currently being examined in co-operation with the Georgian authorities.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting of March 2010 in the light of information to be provided on individual and general measures.

    9103/04 The Georgian Labour Party, judgment of 08/07/2008, final on 08/10/2008
    The case concerns a violation of the applicant party’s right to stand for legislative election in 2004 on account of the disfranchisement of voters in the Khulo and Kobuleti districts (violation of Article 3 of Protocol No. 1).
    Following the “Rose Revolution”, the Supreme Court of Georgia annulled the proportional representation results of the general election held in November 2003. A re-run of the parliamentary election took place on 28 March 2004. Following various complaints filed with the the Central Electoral Commission (CEC) about voting irregularities in the general election on 28 March in the Kobuleti and Khulo electoral districts in the Autonomous Republic of Ajaria, the CEC annulled the results for those two districts by an Ordinance of 2/04/2004. The CEC set 18/04/2004 as the date for a new vote. However, on the day, the polling stations in the Khulo and Kobuleti districts failed to open, which deprived around 60 000 people of their vote.
    By a majority decision, the CEC accepted the election results without taking into account the fact that no vote could take place in the Khulo and Kobuleti districts.
    The Court held that the CEC’s decision of 2/04/2004 to annul the election results in the Khulo and Kobuleti electoral districts had not been made in a transparent and consistent manner. The CEC had adduced no relevant or sufficient reasons for its decision, nor had it provided adequate procedural safeguards against an abuse of power. Furthermore, without having recourse to any additional measures to organise elections in the Khulo and Kobuleti districts after 18/04/2004, the CEC had taken a hasty decision to terminate the country-wide election without any valid justification. The Court concluded that the exclusion of those two districts from the general election process had failed to comply with a number of requirements of the rule of law and resulted in what was effectively a disfranchisement of a significant section of the population.
    Individual measures: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant party. The Court did not discern any causal link between the only violation found in the present case and the pecuniary damage claimed. Parliamentary elections took place in 2008, in which the Georgian Labour Party participated.
    Assessment: no individual measure seems necessary
    General measures: At the origin of the violation is the way the CEC took its decision of 2/04/2004.
    In this context it has to be noted that the Court also stated that the composition of electoral commissions at all levels lacked sufficient checks and balances against the President’s power and that those commissions could hardly enjoy independence from outside political pressure.
    • Information provided by the Georgian authorities:The European Court’s judgment has been translated into Georgian and published in the Official Gazette No. 4 of 14/01/2009.
    Information is awaited on measures envisaged to improve the decision process within the CEC and, in particular, on the possible setting up of adequate “procedural safeguards against an abuse of power”, in particular in view of the reasoning of the Court in its judgment.

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

    18145/05 Gigolashvili, judgment of 08/07/2008, final on 08/10/2008
    The case concerns an infringement of the applicant’s right to liberty and security (violation of Article 5§1c) on account of his continued pre-trial detention from 5/05 to 27/10/2004 without a court order authorising this detention. The European Court underlined that the fact that, during this time, the applicant and his advocate were studying the criminal case file which was then sent, along with the bill of indictment, to the competent court for trial, could not constitute a “lawful” basis for the applicant’s continued remand in custody for the purposes of Article 5§1 (c) of the Convention.
    Individual measures: The applicant submitted no claim for just satisfaction and accordingly the Court awarded him no sum in that respect. The applicant is no longer detained on remand.
    Assessment: No individual measure seems necessary.

    General measures: Criminal Procedure distinguishes between two periods of pre-trial detention: “detention pending investigation” and “detention pending trial”, i.e. after the case is transmitted to the competent court.
    At the material time, Article 406§4 of the Code of Criminal Procedure (CCP) provided that time spent by the accused and his advocate studying the criminal case file could not be counted towards the period of detention (although the accused remained in custody). When the case was transmitted to the competent court, it had to hold an admissibility hearing and decide whether it was necessary to impose a measure of restraint on the accused. However the lime-limit within which the judge had to hold this hearing was not related to the file of the accused but to the date the judge took a final decision in the last case he had to deal with.
    The consequences were that individuals could be deprived of their liberty for an unlimited period of time without judicial authorisation
    Since the fact of this case, the legislative framework of pre-trial detention has changed.
    First, on 16/12/2003 the Constitutional Court declared that that Article 406§4 of the CCP was not only unconstitutional but also incompatible with Article 5§1 of the Convention. However, the Constitutional Court ruled that, in order “to avoid the creation of difficulties for the investigative authorities”, the enforcement of its judgment by the annulment of the provision at issue should be delayed until 25/09/2004.
    Then Articles of the CCP regarding pre-trial detention have been modified.
    Information provided by the Georgian authorities: Article 406§4 CCP has been definitively repealed and, since 1/01/2007, Article 162 CCP provides that the total length of pre-trial detention cannot exceed 9 months.
    The judgment of the European Court has been translated and published in the Official Gazette No. 4 of 14/01/09.
    Bilateral contacts are under way to clarify the procedure for extension of detention on remand, in particular concerning “detention pending trial”.

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

    30779/04 Patsuria, judgment of 06/11/2007, final on 06/02/2008
    The case concerns an infringement of the applicant’s right to liberty and security due to his being detained on remand in 2004 on grounds which cannot be regarded as “relevant” or “sufficient” (violation of Article 5§3).
    The European Court held that, because they relied essentially on the seriousness of the charges against the applicant, the Georgian courts had failed to address the specific circumstances of his case or to consider alternative pre-trial measures. The Court underlined that the fact that the last decision extending the applicant’s detention on remand was a standard template text with pre-printed reasoning was particularly worrying.
    Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. The applicant is no longer detained on remand.
    Assessment: No further measure seems necessary.
    General measures:
    • Information provided by the Georgian authorities: The judgment of the European Court was translated and published in the Official Gazette No.19, dated 30/04/2008. Training has been organised for prosecutors, in particular in July 2008 in the framework of a joint Council of Europe/European Commission programme, and the case of Patsuria was given as a practical example during these seminars.
    The Code of Criminal Procedure has been amended: the provision according to which the gravity of the alleged crime was a valid ground for imposing detention (former Article 151§3 in fine) has been repealed.
    The new Article 151, in its version of 25/03/2005, provides in paragraph 1 the principle that “a measure of detention may only be applied if the objectives pursued cannot be achieved by a less severe measure”. This principle is recalled to prosecutors in paragraph 3 and to judges in paragraph 4 of this Article.
    Confirmation is awaited of the dissemination of the Court’s judgment to district courts, regional courts and the Supreme Court as well as confirmation that measures have been taken to prevent the use of a standard template with pre-printed reasoning to extend detention on remand .

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

    74644/01 Donadze, judgment of 07/03/2006, final on 07/06/2006
    The case concerns a violation of the applicant's right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts seized of his case in 2000. His claims against the repeated failure between 1991 and 2000 of his employer, a public administration, to provide him with the office facilities he needed for his work and to pay him the salary supplements he was entitled to, were rejected.
    The European Court stressed that the Georgian courts had rejected the applicant's claims on the only basis of the arguments of the defendant administration, without any serious or in-depth examination of the applicant's arguments and evidence, thus placing him at a disadvantage as compared with the defendant administration (violation of Article 6§1).
    Individual measures: The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant has expressed no further request for specific individual measures before the Committee of Ministers.
    General measures: Since the facts at the origin of this case, the judicial system has changed and a comprehensive reform is under way, in co-operation with the Council of Europe, to bring the Georgian judicial system fully in conformity with the requirements of the European Convention. In particular, measures have been taken to increase the professionalism of judges: access to the profession has been modified and special training programmes have been established.
    • Information of the Georgian authorities (letter of 5/12/2007): the European Court judgment was translated into Georgian and published in the Official Gazette of Georgia n°28 dated 29/05/07.
    Information is awaited about the possible provisions under the new system to guarantee the fairness of civil proceedings, specially those involving administrative entities, and concerning, in particular, the assessment of arguments of the parties by courts and the reasoning accompanying decisions. This request was recalled by letter of 17/04/2007.
    • Case law of the Supreme Court regarding the obligation to include reasoning in decisions would also be very useful. In addition, cconfirmation of the dissemination of the judgment of the European Court to all relevant civil courts is also awaited.

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

    40765/02 Apostol, judgment of 28/11/2006, final on 28/02/2007
    The case concerns a violation of the applicant's right to a fair trial due to excessive restriction of his access to enforcement proceedings concerning a final judgment given in his favour on 21/11/2001. This judgment, remained unenforced as the applicant was unable to pay the court fees, demanded in advance, for the enforcement proceedings (violation of Article 6§1).
    Because he was unable to bear “preliminary expenses associated with enforcement measures”, the authorities refused to initiate the enforcement proceedings.
    Individual measures: The applicant did not submit any claim for just satisfaction. The Court held that Georgia should use all appropriate means to ensure enforcement of the judgment of 21/11/2001.
    Information provided by the Georgian authorities (30/10/2007): To date the public authorities have been unable to ensure enforcement of the judgment of 21/11/2001 because it is impossible to establish the whereabouts of the debtor and because it seems that the debtor does not possess any goods (neither vehicle, nor immovable property, he is not registered as a private entrepreneur and has no bank account). On 14/05/2008, the applicant informed the European Court that the domestic judgment remained unexecuted.
    Information is awaited:
    - on further measures taken to execute the judgment of 21/11/2001;
    - on the existence of an appeal in Georgian law founded on the state's responsibility for defective functioning of the public justice service
    General measures: The Court stated that by placing the responsibility of funding the organisation of enforcement proceedings on the applicant, the state tried to evade its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice.
    Information provided by the Georgian authorities (30/10/2007): The European Court’s judgment has been translated into Georgian, published in the Official Gazette No 13 of 13/03/2007 and sent out to various state bodies.

    • Information provided by the Georgian authorities (3/03/2009): The Enforcement Proceedings Act of 16/04/1999, as amended on 15/07/2008, came into force on 1/10/2008. Article 38, which deals with enforcement fees in respect of decisions taken by courts or other competent body, provides in paragraph 12 that the following are exempt from pre-payment of fees:
    (a) persons registered in the social database, upon presentation of relevant certificate;
    (b) creditors so designated by judicial decision; the court, taking into consideration the state of the property/assets of the creditor, may exempt them from pre-payment of fees.
    Examples of application of this new legislation would usefully complete this information.

    The Deputies decided to resume consideration of this item:
    1. at their 1072nd meeting (December 2009) (DH), in the light of further information to be provided on individual measures;
    2. at the latest at their DH meeting of June 2010, in the light of further information to be provided on general measures.

    69852/01 Kidzinidzé, judgment of 29/01/2008, final on 07/07/2008
    The case concerns the excessive length of proceedings brought by the applicant in February 2000 before the Supreme Court of the Autonomous Republic of Ajaria as well as a breach of his right to a tribunal due to the implicit refusal of the court of Batoumi to consider an appeal he lodged in October 2000 (violations of Article 6 §1).
    The applicant was joint founder and chairman of up a company which, for a certain time imported several thousand tons of flour into the Autonomous Republic of Ajaria, at the request of President Abachidzé. The applicant and the company never obtained full payment for these imports but were, on the contrary, allegedly victims of extortion under threat by the Ajarian local authorities. The applicant brought the proceedings before the Supreme Court of the Autonomous Republic of Ajaria and the court of Batoumi to obtain payment of the sums owed and reibusement of the sums extorted, as well as to obtain compensation for the pecuniary and non-pecuniary damages.
    Individual measures: The European Court held that none of the sums claimed by the applicant before it in respect of pecuniary damage reflected losses really incurred or directly resulting from the violations found and awarded no just satisfaction in this respect. It did grant just satisfaction in respect of non-pecuniary damage. The application lodged with the Supreme Court of the Autonomous Republic of Ajaria was still pending before this court when the European Court gave its judgment. The applicant never received any response to the appeal lodged with the court of Batoumi.
    Information is awaited on the following points:
    - what is the state of progress of the proceedings lodged by the applicant with the Supreme Court of the Autonomous Republic of Ajaria? Have they been accelerated since the European Court’s judgment became final?
    - was the appeal before the Court of Batoumi finally registered and has it been examined?
    General measures: The European Court’s judgment has been translated into Georgian and published in the Official Gazette No. 4 of 14/01/2009.
    Information is awaited on the volume of proceedings pending before the Ajarian courts and as to whether the adoption of general measures might possibly be needed.

    The Deputies decided to resume consideration of this case at the latest at their DH meeting of March 2009 in the light of further information to be provided on individual and general measures

    - 2 cases against Greece

    44858/04 Markoulaki No. 1, judgment of 26/07/2007, final on 26/10/200715

    2898/03 N.T. Giannousis and Kliafas Brothers S.A., judgment of 14/12/2006, final on 23/05/200716

    - 11 cases against Hungary

    44378/05 Daróczy, judgment of 01/07/2008, final on 01/10/200817

    33629/06 Vajnai, judgment of 08/07/2008, final on 08/10/2008
    This case concerns the violation of the applicant's right to freedom of expression due to his conviction in 2005 for wearing a totalitarian symbol (i.e. the red star) during a lawfully organised, peaceful demonstration, in his capacity as vice-president of a registered, left-wing political party with no known totalitarian ambitions (violation of Article 10).
    The domestic courts relied on Section 269/B of the Criminal Code, which prohibited the use of totalitarian symbols, including the red star.
    The European Court held that the red star cannot be understood as representing exclusively Communist totalitarian rule and that it also clearly still symbolises the international workers' movement, working for a fairer society, as well as certain lawful political parties active in various countries (§52).
    Furthermore, Section 269/B of the Hungarian Criminal Code does not require proof that actual display of a red star amounted to totalitarian propaganda; instead, the mere display is irrefutably considered to be so. For the European Court, this indiscriminate feature of the prohibition corroborates the finding that it is unacceptably broad (§56).
    Accordingly the Court stated that the fine imposed on the applicant was not proportionate to the legitimate aim pursued since such sanction belonged to the criminal law sphere and entailed the most serious consequences (§58).
    Individual measures: The European Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered (§62). 
    • Information provided by the Hungarian authorities (19/01/2009 and 06/07/2009): On 17/12/2008, the Prosecutor General’s Office filed a petition ex officio for review in respect of the final judgment convicting the applicant. Thereafter, the applicant’s case was reopened before the Supreme Court. On 10/03/2009, the Supreme Court reversed the previous decisions and acquitted the applicant.
    Assessment: No further individual measure appears necessary.
    General measures:
    Information provided by the Hungarian authorities (19/01/2009): On 10/03/2009, the Supreme Court acquitted the applicant and reversed the previous decisions in this matter (see above). Thus, the Supreme Court changed its case-law concerning Section 269/B of the Hungarian Criminal Code at issue. The European Court’s judgments and the Supreme Court’s decisions, including the Supreme Court’s decision of 10/03/2009, are binding upon lower courts in Hungary. However, if any similar case appears before the Supreme Court, it will apply its recent case-law.
    The European Court’s judgment was translated and published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu) as well as in professional journals. It was sent to the Office of the National Judicial Council for dissemination to courts nationwide and to the Prosecutor General’s Office in order to initiate the review proceedings.
    The Secretariat is assessing the information provided.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting of March 2010, in the light of an assessment of the information already provided.

    - Cases of length of criminal proceedings
    55220/00 Csanádi, judgment of 09/03/2004, final on 09/06/2004
    16412/05 Bodon, judgment of 30/10/2007, final on 30/01/2008
    31692/06 Kalmár and Lorencz, judgment of 07/10/2008, final on 07/01/2009
    26958/04 Kálovits, judgment of 30/10/2007, final on 30/01/2008
    37778/04 Kulcsár, judgment of 24/01/2008, final on 24/04/2008
    8174/05 Kovács Lajos, judgment of 17/07/2008, final on 01/12/2008
    42542/04 Márta, judgment of 29/04/2008, final on 29/07/2008
    6437/02 Nagy, judgment of 20/12/2005, final on 20/03/2006
    40354/04 Sárközi, judgment of 27/11/2007, final on 27/02/2008
    These cases concern the excessive length of certain criminal proceedings some of which began as early as in 1988 and most of which were closed between 2003 and 2007, having lasted between five and 11 years (violations of Article 6§1).
    In the cases of Csanádi, Nagy and Kalmár and Lorencz, proceedings were still pending when the European Court delivered its judgments.
    The Kalmár and Lorencz case also concerns the excessive length of civil proceedings.
    Individual measures:
    Information provided by the Hungarian authorities: In the Csanádi case, the proceedings were closed on 05/05/2008 before the Veszprém County Regional Court. In the Nagy case, proceedings were closed on 22/08/2005 before the Budapest Regional Court.
    Assessment: No further measure appears necessary in the Csanádi and Nagy cases.
    Information is awaited on the state of the domestic proceedings in the Kalmár and Lorencz case (§§7 and 10) and on their acceleration, if still pending.
    General measures:
    1) Background information: The European Court first found a violation on grounds of excessive length of criminal proceedings against Hungary in the Németh case (see Resolution ResDH(2006)48) in the context of which the Hungarian authorities informed the Committee that the violation found did not in itself indicate structural shortcomings in Hungary’s administration of justice concerning the length of criminal proceedings. Thus the publication and dissemination of the judgment to the National Judicial Council were considered sufficient measures to prevent similar violations.
    It may be noted that there are a few dozen cases currently pending before the European Court regarding excessive length of criminal proceedings. The Hungarian authorities provided information on the measures taken in respect of the excessive length of proceedings in the context of the Timár group of cases (1072nd meeting, December 2009) which are relevant to the present cases.
    2) Publication and dissemination: The European Court’s judgments have been published on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu) and sent to the Office of the National Judicial Council for dissemination to the competent courts.

    The Deputies decided to resume consideration of these items at the next examination of the Timár group of cases.

    - 1 case against Italy

    26740/02 Grande Oriente d’Italia di Palazzo Giustiniani No. 2, judgment of 31/05/2007, final on 31/08/200718

    - 4 cases against Latvia

    62393/00 Kadiķis No. 2, judgment of 04/05/2006, final on 04/08/200619

    3669/03 Ādamsons, judgment of 24/06/2008, final on 01/12/200820

    73819/01 Estrikh, judgment of 18/01/2006, final on 18/04/200721
    67275/01 Čistiakov, judgment of 08/02/2007, final on 08/05/2007

    - 1 case against Lithuania

    10425/03 Gulijev, judgment of 16/12/2008, final on 16/03/2009
    This case concerns the unjustified interference with the applicant’s right to respect for his private and family life due to the rejection of his request for renewal of his temporary residence permit in 2002 and his subsequent expulsion.
    The applicant, a national of Azerbaijan who was residing at the material time in Lithuania with his wife and two children (all Lithuanian citizens), was denied the renewal of his residence permit on account of a report drafted by the State Security Department and classified as “secret”. This report indicated that the applicant posed a threat to national security and public order.

    The European Court observed that the “secret” report of the State Security Department, to which the applicant had no access, was the sole ground for not granting him a temporary residence permit. However, no objective element had been presented to the Court to demonstrate that the authorities had had good reason to suspect that the applicant was a threat to national security.
    The Court concluded that the deportation of the applicant and his prohibition from re-entering Lithuania, where his two children and wife live, was disproportionate and could not be regarded as “necessary in a democratic society” (violation of Article 8).
    Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
    Information is awaited as to whether the applicant may now be granted a renewal of his temporary residence permit.
    General measures:
    Information is awaited on measures taken or envisaged to prevent new, similar violations.

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

    - 10 cases against Malta

    26111/02 Mizzi, judgment of 12/01/2006, final on 12/04/2006
    The case concerns a violation of the applicant’s right of access to a court in that he was denied the possibility of obtaining a judicial determination of his claim that he was not the biological father of a child born by his wife in 1967 several months after their separation (violation of Article 6§1).
    Until 1990, the applicant was prevented from bringing such a claim since the Maltese Civil Code permitted the denial of paternity only in cases of adultery and where the birth had been concealed, which was not the case here. Following an amendment, the law permitted claims in paternity cases within 3 months after birth. This time-limit was raised to 6 months in 1993. Thus the applicant was barred at the material time from using this remedy. Under the new rules, evidence of adultery and of any other fact tending to exclude paternity was sufficient to bring an action for disavowal.
    Despite these legal limitations, the Civil Court in 1997 accepted the applicant's request based on DNA tests establishing that he was not the child's father, holding that Maltese law violated Article 8 of the Convention. This judgment was quashed by the Constitutional Court.
    The European Court held that, given the wording of the relevant provisions of the Civil Code coupled with the Constitutional Court’s refusal to grant the applicant leave for introducing an action for disavowal, the practical impossibility of denying paternity impaired the essence of the applicant’s right to a court (§80 and §89 of the judgment).
    The case also concerns the violation of the applicant’s right to respect for his private life since a fair balance has not been struck between the general interest of the protection of the legal certainty of family relationships and the applicant's right to have the legal presumption of his paternity reviewed in the light of the biological evidence (violation of Article 8).
    Finally, the case concerns the violation of the prohibition of discrimination in that, while the applicant was subject to a stricter time-limit than the other interested parties, whose right to challenge the legitimacy of a child born in wedlock were not subject to any time-limit (violation of Article 14 in conjunction with Articles 6§1 and 8).
    Individual measures:
    By virtue of the amendment to clause 70(4) of the Civil Code, introduced following the judgment of the European Court (see general measures below), the applicant was able to bring an action for disavowal of paternity before the Maltese courts between 2007 and 31/12/2008.
    Assessment: no further measures appear necessary.
    General measures:
    1) Violation of Articles 6§1 and 8:
    Information provided by the Maltese authorities: On 9/06/2006 a Bill to amend Clause 4 of Article 70 of the Maltese Civil Code was published. The new Clause 4 will entitle the applicant as well as other persons in the same position to repudiate a child born before 1/12/1993.

    On 24/06/2009, the Maltese authorities confirmed that the bill had become law and included the new, proposed Article 70(4). The new law is available at http://www2.justice.gov.mt/lom/home.asp.
    Under the new clause, any applicant bringing a claim which related to a child born prior to 1993 might benefit from the reforms enacted in 1993 provided they brought their claim before the 31.12.08. Therefore, people in the same position in the applicant (and the applicant himself) had a period of one year from 2007 (when the amendment came into force) until 31/12/2008 to bring an application repudiating paternity before the Maltese Courts.
    Assessment: the Court found a violation of Article 6§1 based on the fact that “…a time-limit precluded the applicant from benefiting from the 1993 amendments…” but that this “…did not impair the existence itself of the right in the domestic legal system” (§74). The new amendment appears to remedy the position for those who were previously excluded from bringing claims under the 1993 amendments by providing a one year period where any possible claims could be made.
    Assessment: no further measures appear necessary.
    2) Violation of Article 14:
    Information is awaited on any measures taken or envisaged.
    3) Publication and dissemination: judgments of the European Court against Malta are habitually sent out to the competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (mjha.gov.mt/ministry/links.html) which provides for a direct link to the Court's website.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting of June 2010 (DH), in the light of information to be provided on general measures.

    - Case concerning freedom of expression
    7333/06 Lombardo and others, judgment of 24/04/2007, final on 24/07/200722

    17209/02 Adami Zarb, judgment of 20/06/2006, final on 20/09/200623

    77562/01 San Leonard Band Club, judgment of 29/07/2004, final on 29/10/200424

    35349/05 Fleri Soler and Camilleri, judgment of 26/09/2006, final on 26/12/2006 and of 17/07/2008, final on 17/10/2008 (Article 41)25
    31122/05 Ghigo, judgment of 26/09/2006, final on 26/12/2006 and of 17/07/2008, final on 17/10/2008 (Article 41)
    17647/04 Edwards; judgment of 24/10/2006, final on 24/01/2007 and of 17/07/2008, final on 06/04/2009 (Article 41)

    - Cases of length of civil proceedings26
    34539/02 Debono, judgment of 07/02/2006, final on 07/05/2006
    15091/06 Bezzina Wettinger and others, judgment of 08/04/2008, final on 08/07/2008
    35829/03 Central Mediterranean Development Corporation Limited, judgment of 24/10/2006, final on 24/01/2007

    - 58 cases against Moldova

      - Cases mainly concerning violations related to detention on remand

    3456/05 Sarban, judgment of 04/10/2005, final on 04/01/2006
    23393/05 Castravet, judgment of 13/03/2007, final on 13/06/2007
    21984/05 Gorea, judgment of 17/07/2007, final on 17/10/2007
    14437/05 Modarca, judgment of 10/05/2007, final on 10/08/2007
    42440/06 Muşuc, judgment of 06/11/2007, final on 06/022008
    8207/06 Stepuleac, judgment of 06/11/2007, final on 06/02/2008
    35324/04 Stici, judgment of 23/10/2007, final on 23/01/2008
    10809/06 Turcan, judgment of 27/11/2007, final on 27/02/2008
    39835/05 Turcan and Turcan, judgment of 23/10/2007, final on 23/01/2008
    3817/05 Ursu, judgment of 27/11/2007, final on 27/02/2008
    CM/Inf/DH(2009)42 (to be issued)
    These cases mainly concern violations related to the applicants' detention on remand, the extension of such detention and the guarantees due to persons in remand, in particular:
    - the applicants’ arrest and detention on remand without reasonable suspicion of their having committed an offence (violations of Article 5§1-c in the Muşuc, and Stepuleac cases);
    - unlawful detention of the applicants on account of the practice of keeping accused persons in detention on the sole ground that their case-files have been submitted to the trial court (violations of Article 5§1 in the Modârcă, Gorea, Stici, Ursu, and Ţurcan cases);
    - failure of domestic courts to give relevant and sufficient reasons to justify the extension of the applicants' detention on account of the use of abstract or stereotyped formulas and of the absence of an explanation on how the formalistic grounds provided by law applied to the applicants' cases (violations of Article 5§3 in the Şarban, Modârcă, Castraveţ, Ţurcan and Ţurcan, Stici, and Ursu cases);
    - violation of the applicant's right to be released pending trial on account of his failure to pay the amount set for bail in the absence of relevant and sufficient grounds for his continued detention (violation of Article 5§3 in the Muşuc case);
    - failure to ensure a prompt examination of the lawfulness of the applicant's detention (21 days) (violation of Article 5§4 in the Şarban case);
    The European Court also found a number of violations of the principle of the equality of arms on account of:
    - the lack of confidentiality of lawyer-client communications at the CFECC remand centre (Centre for Fighting against Economic Crimes and Corruption), related to the preparation of the applicants' requests for release (in the Modârcă, Castraveţ, and Muşuc cases);
    - unjustified refusal by domestic courts to give access to the case-files, in particular to the evidence of a witness whose statements justified the application of the preventive measure, to the applicant and to his lawyer with a view to challenging the lawfulness of the detention (in the Muşuc, and Ţurcan and Ţurcan cases);
    - unjustified refusal of the domestic court to hear evidence from the witness whose alleged statements were used to justify the detention on remand of the applicant (in the Ţurcan and Ţurcan case) (violations of Article 5§4).
    The Modârcă, Stepuleac and Ţurcan cases also concern poor conditions of pre-trial detention (violation of Article 3). The Şarban, Ţurcan and Stepuleac cases concern the lack of medical assistance during detention in the CFECC, in Prison No 13 (former Prison no 3) and in the General Directorate for Fighting Organised Crime (GDFOC) respectively (violation of Article 3). Finally, the Stepuleac case concerns the lack of an effective investigation into the applicant's allegations of intimidation in detention.
    Individual Measures: The applicants are no longer detained on remand. The European Court awarded just satisfaction in respect of non-pecuniary damages suffered by the applicants.
    Information is still awaited on measures taken by the authorities concerning the applicant's allegations of intimidation in the Stepuleac case.
    General Measures: The measures taken so far by the Moldovan authorities regarding violations of Article 5§3 and the outstanding issues are summarised in memorandum CM/Inf/DH(2009)42. The information provided by the Moldovan authorities regarding the other violations found by the Court is being assessed and will be considered at a later stage.
    As regards the violations of Article 3, these cases raise similar issues to those in the Becciev group cases (9190/03, 1072nd meeting, December 2009).

    The judgments of the European Court have been translated and published in the Official Journal of the Republic of Moldovan (Monitorul Oficial) as well as on the official internet site of the Ministry of Justice (www.justice.md).
    It would be useful to know if all the judgments in this group have been sent out to all appropriate authorities.

The Deputies,
1. took note of the information provided by the Moldovan authorities as summarised in the Memorandum CM/Inf/DH(2009)42;
2. encouraged the authorities to continue their efforts with a view to ensuring full compliance with the requirements of the Convention regarding the reasoning of judicial decisions ordering detention on remand or its prolongation;
3. invited the Moldovan authorities to intensify their efforts in organising in-service training activities for judges and prosecutors focused in particular on the reasoning of requests and decisions concerning the detention on remand;
4. decided to resume consideration of these cases at their 1072nd meeting (December 2009) (DH), to examine the outstanding issues on the basis of an updated and completed version of the Memorandum to be prepared by the Secretariat.

      - Cases concerning the violation of a the right to a fair hearing on account of inadequate notification proceedings27

    61821/00 Ziliberberg, judgment of 01/02/2005, final on 01/05/2005
    7413/05 Russu, judgment of 13/11/2008, final on 13/02/2009

    14385/04 Oferta Plus SRL, judgments of 19/12/2006, final on 23/05/2007 and of 12/02/2008 (Article 41), final on 07/07/200828

      - Cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments29

    2916/02 Luntre and others, judgment of 15/06/2004, final on 15/09/2004
    29808/02 Avramenko, judgment of 06/02/2007, final on 06/05/2007
    31530/03 Baibarac, judgment of 15/11/2005, final on 15/02/2006
    32760/04 Banca Vias, judgment of 06/11/2007, final on 06/02/2008
    32347/04 Becciu, judgment of 13/11/2007, final on 13/02/2008
    952/03 Biserica Adevărat Ortodoxă din Moldova and others, judgment of 27/02/2007, final on 27/05/2007
    25238/02+ Biţa and others, judgment of 25/09/2007, final on 25/12/2007
    18872/02+ Bocancea and others, judgment of 06/07/2004, final on 06/10/2004
    19981/02 Botnari, judgment of 19/06/2007, final on 19/09/2007
    27533/04 Buianovschi, judgment of 16/10/2007, final on 16/01/2008
    27883/04 Bulava, judgment of 08/01/2008, final on 08/04/2008
    31043/04 Cogut, judgment of 04/12/2007, final on 04/03/2008
    39745/02 Cooperativa Agricola Slobozia-Hanesei, judgment of 03/04/2007, final on 03/07/2007
    18882/02 Croitoru, judgment of 20/07/2004, final on 20/10/2004
    34322/02 Curararu, judgment of 09/10/2007, final on 09/01/2008
    46581/99 Daniliuc, judgment of 18/10/2005, final on 18/01/2006
    14925/03 Deliuchin, judgment of 23/10/2007, final on 23/01/2008
    33276/03 Deordiev and Deordiev, judgment of 16/10/2007, final on 16/01/2008
    75975/01 Draguta, judgment of 31/10/2006, final on 31/01/2007
    20940/03 Dumbraveanu, judgment of 24/05/2005, final on 24/08/2005
    35994/03 Grivneac, judgment of 09/10/2007, final on 09/01/2008
    40541/04 Lipatnikova and Rudic, judgment of 23/10/2007, final on 23/01/2008
    20567/02 Lozan and others, judgment of 10/10/2006, final on 10/01/2007
    3021/02 Lungu, judgment of 09/05/2006, final on 09/08/2006
    3417/02 Lupacescu and others, judgment of 21/03/2006, final on 21/06/2006
    17359/04 Marcu, judgment of 16/10/2007, final on 16/01/2008
    1115/02 Mazepa, judgment of 10/05/2007, final on 10/08/2007
    31790/03 Mizernaia, judgment of 25/09/2007, final on 25/12/2007
    14914/03 Moisei, judgment of 19/12/2006, final on 19/03/2007
    18726/04 Nadulisneac Ion, judgment of 16/10/2007, final on 16/01/2008
    9898/02 Pasteli and others, judgment of 15/06/2004, final on 15/09/2004
    74153/01 Popov, judgment of 18/01/2005, final on 18/04/2005 and of 17/01/2006, final on 17/04/2006
    2914/02 Prepeliţă, judgment of 23/09/2008, final on 23/12/2008
    49806/99 Prodan, judgment of 18/05/2004, final on 10/11/2004 and of 25/04/2006, final on 25/07/2006 - Striking-out
    3479/04 Rusu, judgment of 15/01/2008, final on 15/04/2008
    20864/03 Scutari, judgment of 26/07/2005, final on 26/10/2005
    73562/01+ Sîrbu and others, judgment of 15/06/2004, final on 10/11/2004
    18893/04 Tiberneac, judgment of 16/10/2007, final on 31/03/2008
    26103/04 Tiberneac Vasile, judgment of 16/10/2007, final on 16/01/2008
    22970/02 ŢÎmbal, judgment of 14/09/2004, final on 14/12/2004
    36344/03+ Tudor-Auto S.R.L. and Triplu-Tudor S.R.L., judgment of 09/12/2008, final on 09/03/2009
    27568/02 Ungureanu, judgment of 06/09/2007, final on 06/12/2007
    19245/03 Unistar Ventures GmbH, judgment of 09/12/2008, final on 09/03/2009
    10543/02 Vacarencu, judgment of 27/03/2008, final on 27/06/2008
    6901/03 Vitan, judgment of 16/10/2007, final on 16/01/2008

    - 47 cases against Poland

    11562/05 Byrzykowski, judgment of 27/06/2006, final on 27/09/2006
    This case concerns the violation of the right to life due to the failure to carry out an effective investigation into the death of the applicant's wife and the serious damage to his son's health (violation of Article 2).
    In July 1999 the applicant's wife was about to give birth to their child and was admitted to the Wrocław Medical Academy hospital. The physicians decided to perform a caesarean section and gave her an epidural, as a result of which she went into a coma. All resuscitation efforts failed and she died on 31/07/1999. Their son, born by caesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical attention.
    At the applicant's request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. Due to the lengthy process of taking evidence, and in particular forensic reports, these proceedings were stayed once, three times discontinued and three times resumed. They are still pending.
    In August 1999 the applicant also requested that disciplinary proceedings be brought. Those proceedings were stayed, resumed and then stayed again on 25/04/2005 and are still pending.
    Moreover, in July 2002 the applicant also lodged a compensation claim against the hospital before a civil court. On 07/04/2003 those proceedings were stayed, pending the outcome of the two other sets.
    The European Court noted that three sets of proceedings had been and were still pending for periods ranging from four to almost seven years and that the applicant had used all the remedies available to him concerning the alleged medical malpractice. It observed that after almost seven years, there had been no final decision in any of them. Moreover, it observed that the authorities repeatedly referred to the other sets of pending proceedings as a justification for staying them or the refusals to resume them. However, having regard to the overall length of the period which had elapsed since the death of the applicant's wife and also to the fact that the procedures instituted seemed rather to have hindered the overall progress in the proceedings, the Court concluded that the procedures applied in order to elucidate the allegations of medical malpractice did not resulted in an effective examination into the cause of the death of the applicant's wife
    Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage.
    Information provided by the Polish authorities: Following the police investigation of the alleged manslaughter of the applicant's wife the Wrocław District Prosecutor found on 18/05/2006 that there was insufficient evidence. This finding, which was based on expert medical opinions supplied by the Universities of Krakow, Katowice, Poznań and Bialystock, became final on 7/06/2006.
    On 11/10/2007 the Regional Medical Tribunal decided to discontinue disciplinary proceedings against one of the physicians because they were time-barred.
    The civil proceedings for compensation, pending before the Wrocław Regional court, have been resumed and are subject to administrative supervision. A last hearing took place on 30/01/2008.
    Information is awaited on whether the Regional Medical Tribunal’s decision of 11/10/2007 is final, as well as on the progress of the civil proceedings.

    General measures: The European Court found no indication of any failure on the part of the state in its obligation to provide a procedure to determine the criminal, disciplinary or civil responsibility of persons who might be held answerable (§ 106 of the judgment). The finding of a violation in this case resulted from the Court's assessment of how this procedure had worked in the concrete circumstances.
    Information provided by the Polish authorities: The Polish authorities have undertaken reforms with a view to:
    1) Making judicial experts more efficient: On 12/09/2008 the Council of Ministers adopted a Bill on experts in judicial proceedings. It aims at providing a comprehensive legislative framework concerning experts’ status, their appointment, dismissal and supervision as well as on expert institutions allowed to deliver opinions. The Bill has been submitted to the Institute of Justice for its opinion with regard to civil proceedings.
    2) Introducing a remedy in case of excessive length of investigations:
    According to the March 2007amendment to the Code of Criminal Procedure, if the prosecutor has refused to conduct an investigation and the superior prosecutor has upheld this decision, the appeal against the decision on the refusal to conduct investigation shall be transmitted to the court (Article 306§2 as amended and Article 465§2).
    Moreover, on 20/02/2009 the Law of 17/06/2004 on complaints against infringement of parties’ right to have a case heard in preparatory proceedings without undue delay was adopted and entered into force on 01/05/2009. It provides the possibility to lodge complaint against excessive length of preparatory proceedings due to an action or inactivity of a prosecutor conducting or supervising such proceedings (see also the Kudła group of cases, Interim Resolution CM/ResDH(2007)28, 30210/96, 1072nd meeting, December 2009).
    3) Changing the disciplinary procedure before the Medical Association: An amendment to the 1989 Act on the Medical Association has been drafted. Its main effect would be to broaden injured parties' rights in disciplinary proceedings. At present, their status is limited to that of witness. It is also proposed to make hearings before the professional body public, to introduce the possibility of appealing its decisions before criminal courts, to increase the range of disciplinary sanctions available and to fix time-limits for each phase of disciplinary proceedings.
    By letter 24/08/2007 the authorities provided the Secretariat with the draft amendment to the 1989 Act on the Medical Association.
    Information is awaited on the development of the reform proposals mentioned under 1 and 3 above.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of further information to be provided on individual and general measures.

    5410/03 Tysiąc, judgment of 20/03/2007, final on 24/09/2007
    This case concerns the authorities’ failure to comply with their positive obligation with regard to the respect for the applicant’s right to her private life, due to the absence of a legal framework to guarantee her right to therapeutic abortion (violation of Article 8).
    According to the applicable Polish law (1993 Family Planning Act) abortion is generally prohibited, unless inter alia pregnancy poses a threat to the woman’s life or health, attested by at least one medical certificate of a specialist in the area concerning the illness of the woman concerned. A doctor who terminates a pregnancy in breach of the law is guilty of a criminal offence.
    The applicant, who is severely myopic, amounting to disability of medium severity, became pregnant in February 2000. Concerned about the possible impact of the delivery on her health, and especially her eyesight, she consulted four doctors (three ophthalmologists, one general practitioner). Although the ophthalmologists concluded that the pregnancy and the delivery constituted a risk to her eyesight, only the GP issued a medical certificate with a view to a therapeutic abortion. The applicant contacted a gynaecological clinic, but the gynaecologist found no grounds for therapeutic abortion. A few months after the birth of her third child, the applicant’s eyesight deteriorated and she was reclassified as significantly disabled. She has tried in vain to lay criminal complaints against the gynaecologist on the grounds that he had denied her right to a therapeutic abortion.
    The European Court noted that the right to respect for private life implies that in case of therapeutic abortion the State must secure the physical integrity of mothers-to-be, striking a fair balance between the interest of the individual and the community. In circumstances such as those in this case, there should be a procedure before an independent body competent to review the reasons for the measures and the relevant evidence. This procedure should guarantee a pregnant woman at least the possibility to be heard in person and to have her views considered.

    The competent body should issue written grounds for its decision. The procedure should also ensure that such decisions are timely so as to limit or prevent damage to a woman’s health which might be occasioned by a late abortion (§§ 117-118 of the judgment).
    The European Court concluded that the Polish legal framework, as applied in this case denied the applicant the possibility of expressing her disagreement with the doctors and made it impossible to determine where the conditions for therapeutic abortion had been met. In particular the provisions of the Minister of Health’s Order of 22/01/1997 provided no particular procedural framework to address and resolve disagreement as to the advisability of therapeutic abortion, either between the pregnant woman and her doctors, or between the doctors themselves. Furthermore the 1996 Medical Profession Act, which allows a doctor to obtain a second opinion from a colleague in the event of therapeutic doubts or at the patient’s request, was only addressed to members of the medical profession and gives patients no procedural guarantee to obtain such an opinion or to contest it in the event of disagreement.
    Moreover, the European Court found that such retrospective legal measures as those based on civil law on tort or the criminal proceedings instituted against one of the doctors could of themselves provide appropriate protection for the physical integrity of the applicant.
    Individual measures: The European Court rejected the applicant’s claim for just satisfaction for pecuniary damage, considering that it could not speculate as to the correctness of the doctors’ conclusions concerning the future deterioration of her eyesight. It awarded her just satisfaction in respect of non-pecuniary damage (25 000 euros).
    Assessment: in these circumstances, no other individual measure appears to be necessary.
    General measures:
    Measures taken:
    1) Publication: The judgment of the European Court was published on the website of the Ministry of Justice www.ms.gov.pl.
    2) Legislative measures: On 06/11/2008, Parliament voted the Law on the Protection of Individual and Collective Rights of Patients and the Patient Rights’ Ombudsman. Most of its provisions entered into force on 24/04/2009. The law defines inter alia the patients’ rights and procedures concerning their access to healthcare and shall also apply to the conduct of lawful abortion.
    According to Section 31§1 of this law, a patient or his/her legal representative may lodge an appeal (sprzeciw) against a physician’s opinion (opinia) or decision (orzeczenie), if the latter has an influence on his/her rights and/or obligations stemming from the provisions of law. The appeal should be lodged through the Patient Rights’ Ombudsman (Rzecznik Praw Pacjenta) to the Commission of Physicians (Komisja Lekarska), acting by the latter, within 30 days following the day on which the opinion or decision of the physician assessing his/her state of health was delivered.
    The appeal shall be examined by the Commission of Physicians without delay, not later than after 30 days since it was lodged. The Commission of Physicians delivers a decision (orzeczenie) on the basis of the medical documentation and, if need be, having heard the patient (Section 31§5), by an absolute majority of votes in the presence of all its members (Section 31§6). It is composed of three physicians, of which two must have the same specialisation as the one who delivered the contested opinion or decision (Section 32§1). They are appointed by the Patient Rights’ Ombudsman, whose activity is supervised by the Prime Minister.
    The decisions of the Commission of Physicians are final and the provisions of the Code of Administrative Procedure shall not apply in the proceedings before it (Section 31§§7 and 8).
    • Two sets of comments, by the Centre for Reproductive Rights and the Polish Federation for Women and Family Planning, have been brought to the attention of the Committee of Ministers, together with observations of the delegation in May 2008. They concern the very first version of the draft law, and in particular the need to fix short time-limits in proceedings concerning an appeal against doctor’s refusal to carry out an abortion. These comments have been made in conformity with Rule No. 9 (Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).
    Assessment: the Secretariat welcomes the new Law on the Protection of Individual and Collective Rights of Patients and the Patient Rights’ Ombudsman. However, in the light of the European Court’s findings included in §§ 117-118 of the judgment, some questions still arise concerning the application of this law in cases concerning therapeutic abortion. Thus clarifications are needed as to whether:
    - a woman seeking therapeutic abortion will be heard in person and have her views considered before the Commission of Physicians;
    - the decisions of the Commission of Physicians will contain written grounds;

    - these decisions will be delivered in a timely manner so as to limit or prevent damage to a woman’s health which might be occasioned by a late abortion; in this context, it should be noted that the new law provides a time-limit of 30 days after the appeal was lodged for the Commission of Physicians to examine this appeal. However, such decisions should be delivered “without delay” (Section 31§5). The Secretariat points out that in cases of therapeutic abortion, decisions should be delivered “without delay”, to comply with the requirement of timeliness stemming from the European Court’s judgment.
    Information is awaited on any other possible measures taken or envisaged to avoid similar violations in the future, and in particular on those meant to ensure the application of the new law in accordance with the requirements stemming from the European Court’s judgment.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of further information to be provided on general measures.

    - Cases mainly concerning the monitoring of prisoners’ correspondence
    31583/96 Klamecki No. 2, judgment of 03/04/03, final on 03/07/03
    43120/05 Andrulewicz, judgment of 03/04/2007, final on 24/09/2007
    31038/06 Andrysiak, judgment of 20/05/2008, final on 20/08/2008
    20138/03 Bobel, judgment of 22/01/2008, final on 22/04/2008
    26846/05 Ćwiertniak, judgment of 22/07/2008, final on 22/10/2008
    20841/02 Drozdowski, judgment of 06/12/2005, final on 06/03/2006
    35833/03 Dzitkowski, judgment of 27/11/2007, final on 27/02/2008
    55470/00 Ferla, judgment of 20/05/2008, final on 20/08/2008
    36161/05 Jakubiak, judgment of 08/01/2008, final on 07/07/2008
    20251/04 Janulis, judgment of 04/11/2008, final on 04/02/2009
    72976/01 Jasiński, judgment of 06/12/2007, final on 06/03/2008
    8363/04 Kliza, judgment of 06/09/2007, final on 06/12/2007
    44521/04 Kołodziński, judgment of 08/01/2008, final on 07/07/2008
    10816/02 Kozimor, judgment of 12/04/2007, final on 12/07/2007
    12269/02 Kozłowski Eryk, judgment of 04/11/2008, final on 04/02/2009
    51895/99 Kwiek, judgment of 30/05/2006, final on 30/08/2006
    21890/03 Lewak, judgment of 06/09/2007, final on 31/03/2008
    73988/01 Łuczko, judgment of 03/10/2006, final on 03/01/2007
    14450/02 Maksym, judgment of 19/12/2006, final on 19/03/2007
    37641/97 Matwiejczuk, judgment of 02/12/03, final on 02/03/04
    42083/98 Mianowski, judgment of 16/12/03, final on 16/03/04
    43837/06 Misiak, judgment of 03/06/2008, final on 03/09/2008
    62323/00 Najdecki, judgment of 06/02/2007, final on 06/05/2007
    6390/03 Nowicki, judgment of 27/02/2007, final on 27/05/2007
    8260/04 Ochlik, judgment of 29/07/2008, final on 29/10/2008
    64284/01 Oleksy, judgment of 28/11/2006, final on 28/02/2007
    10381/04 Owsik, judgment of 16/10/2007, final on 16/01/2008
    24322/02 Panusz, judgment of 03/06/2008, final on 01/12/2008
    39840/05 Pawlak, judgment of 15/01/2008, final on 15/04/2008
    92/03 Pisk-Piskowski, judgment of 14/06/2005, final on 14/09/2005
    29366/03 Stępniak, judgment of 29/01/2008, final on 29/04/2008
    64283/01 Tomczyk Prokopyszyn, judgment of 28/03/2006, final on 28/06/2006
    38007/02 Warsiński, judgment of 04/12/2007, final on 04/03/2008
    63905/00 Wasilewski, judgment of 06/12/2005, final on 06/03/2006
    39519/05 Zborowski No. 3, judgment of 22/04/2008, final on 22/07/2008, rectified on 06/05/2008
    45133/06 Zborowski, judgment of 15/01/2008, final on 15/04/2008
    These cases concern, first of all, interferences in the applicants' right to respect for their correspondence while they were in detention on remand (violations of Article 8).
    Some of them concern the monitoring of the applicants' correspondence before 01/09/98 (the date of entry into force of the 1997 Code of the Execution of Sanctions). In the cases of Klamecki No 2, Kwiek and Matwiejczuk, the European Court found that the monitoring of the applicants' correspondence with various correspondents (including counsel) was not “provided by law", as the relevant Polish law in force at that time did not indicate with reasonable clarity the scope and manner of the exercise of discretion conferred on public authorities in this field.

    In addition, in the Kwiek and Wasilewski cases, the European Court concluded that the surveillance of the applicant's correspondence with the Constitutional Court or the European Court since that date was “not provided by law” as it was against the law applicable at the material time.
    The other cases concern the monitoring of the applicants' correspondence since 01/09/1998.
    The Andrysiak, Ćwiertniak, Drozdowski, Jakubiak, Janulis, Kliza, Kołodziński, Kozimor, Lewak, Łuczko, Maksym, Matwiejczuk, Mianowski, Misiak, Nowicki, Ochlik, Oleksy, Panusz, Pawlak, Pisk-Piskowski, Stępniak and Tomczyk Prokopyszyn cases concern the fact that the applicants’ correspondence of the with the organs of the Convention, was marked "censored". The European Court found that these inscriptions probably meant that the envelopes had been opened by the domestic authorities, even though the relevant law (the 1997 Code of Execution of Criminal Sentences and the Rules of Detention on remand of 1998) allowed such supervision only in the presence of the detainee. Moreover, the censorship of the applicants' correspondence with the defence counsel or other addressees (state authorities, the Council of Europe Information Office) in the Andrulewicz, Bobel, Najdecki, Kozimor, Pawlak, Zborowski and Zborowski No. 3 cases was also “contrary to domestic law”, as contrary to the provisions of the Code of Criminal Procedure of 1997.
    In the Maksym and Drozdowski cases, taking account of this latter element and the fact that the applicants' letters were posted with significant delays, the Court also found a violation of Article 34.
    In addition, the Klamecki No 2, Ferla and Eryk Kozlowski cases concern the violation of the applicants’ right to respect for their family life due to excessive restriction of their contacts with, respectively, their wife or parents between August 1996 and August 1997, December 1998 and November 1999 and between September 2000 and September 2001 (violations of Article 8).
    Moreover, the European Court found that the applicants' pre-trial detention was excessively long (in the Janulis, Klamecki No 2, Matwiejczuk, Najdecki, Ochlik, Oleksy and Owsik cases) and that, in the Klamecki case, the detention was ordered by a public prosecutor in breach of the applicant's right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3).
    The Klamecki No 2 case also concerns the non-adversarial character of the procedure for reviewing the lawfulness of the applicant's detention, since neither the applicant nor his counsel were given the possibility to participate (violation of Article 5§4).
    Finally, the European Court found that criminal proceedings brought against the applicant in the Matwiejczuk case, as well as civil proceedings dealing with the applicant's compensation claims in the Mianowski case had lasted unreasonably long (violations of Article 6§1).
    Individual measures: The European Court granted just satisfaction in respect of non-pecuniary damage in most of these cases.
    1) Violations of Article 5§3 and 5§4: The pre-trial detentions at issue are over.
    2) Excessive length of the civil and criminal proceedings (violations of Article 6§1): The domestic proceedings have been ended.
    3) Failure to respect detainees' right for correspondence (Article 8) and the right of individual application (Article 34): In most of the cases, the applicants were no longer on remand when the European Court delivered its judgments and thus the restrictions at issue on their right to respect for correspondence could no longer be exerted.
    Moreover, in accordance with recent domestic case-law, applicants and persons who claim infringement of their right to respect for their correspondence may claim compensation from the state Treasury under Article 448 read in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006).
    4) Violations of the right to respect for family life (Article 8): The pre-trial detention came to an end and thus the restrictions on the applicants’ family life cannot reoccur.
    Assessment: it appears that the applicants no longer suffer from the violations. This being the case, no further individual measure is necessary.
    General measures:
    1) Violations of the right to be brought promptly before a judge (Article 5§3) and to participate in proceedings to challenge the lawfulness of detention (Article 5§4) and violations of the right to respect for correspondence in cases concerning monitoring of detainees’ correspondence before 01/09/1998: These cases present similarities to that of Niedbała (judgment of 04/07/2000), closed by Resolution ResDH(2002)124, following the reform of the Code of Criminal Procedure).
    2) Excessive length of detention on remand (Article 5§3): These cases present similarities to that of Trzaska (Interim Resolution CM/ResDH(2007)75) (25792/94, 1072nd meeting, December 2009).

    3) Excessive length of civil and criminal proceedings (Article 6§1): The cases present similarities to a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures (see in particular Podbielski (27916/95) and Kudła (30210/96), Interim Resolution CM/ResDH(2007)28, 1072nd meeting, December 2009).
    4) Failure to respect detainees' right to respect for their correspondence (Article 8) and the right of individual application (Article 34), after 01/09/1998:
    Information provided by the Polish authorities on measures taken:
    a) Legislation in force: The Code of Execution of Criminal Sanctions of 1997 was amended in September 2003. Under the new law, the correspondence of convicted persons with, inter alia, their lawyers (Article 8§1) or the justice administration and Strasbourg organs (Articles 102§11 Section 11 and Article 103§1) cannot be censored or stopped, but can only form the object of supervision conducted by opening the letters in the presence of the convicted person, where there is a reasonable risk that the letters might contain prohibited objects (Articles 8§3 and 103§2). As far as remand detainees are concerned, Article 217a§1 of the Code provides that their correspondence may be supervised by the organ at whose disposal they remain (a public prosecutor or a court).
    Unless the law provides otherwise, prisoners on remand enjoy at least the same rights as those guaranteed to convicted persons serving a sentence of imprisonment under the ordinary regime in a closed prison (Article 214§1). More detailed rules governing the control of the detainees' and convicted persons' correspondence are included in the Rules for Executing Prison Sentences of August 2003 and the Rules of Detention on Remand of 25/08/2003 (both entered into force on 01/09/2003).
    b) Draft legislative amendment to the Code of Execution of Criminal Sanctions: A bill amending the Code of Execution of Criminal Sentences is before the Council of Ministers. According to this bill, the correspondence of detainees on remand and that of those serving prison sentences shall be subject to the same rules.
    c) Publication, dissemination and awareness measures: Public prosecutors and judges have been instructed to pass on detainees' correspondence, including their correspondence with the organs of the Convention to the addressees.
    In June 2005 the authorities informed the Secretariat that the Minister of Justice had sent a circulars to Appeal Court presidents drawing their attention to the European Court's conclusions concerning the violation of Article 8 in the Matwiejczuk case and asking them to send them out to the judges under their administrative responsibility and to those responsible for examining detainees' correspondence who should not stamp letters with the word “censored”.
    January and September 2005, the Minister of Justice again drew Appeal Court presidents' attention to the need to take measures to guarantee respect for detainees' correspondence, particularly by ensuring that their mail should be sent to them in individually addressed envelopes. Following this request, it transpired that there had been lapses in this respect for detainees in some cases.
    The judgments of the European Court in the Klamecki No. 2 and Matwiejczuk cases have been published on the Internet site of the Ministry of Justice (http://www.ms.gov.pl).
    d) Instruction of the Director General of the Prison Service: On 16/11/2007 an instruction was issued by the Director General of the Prison Service covering inter alia the installation of special letter-boxes specifically for prisoners’ correspondence with the European Court and other international bodies in all detention centres in Poland. This instruction took effect on 01/01/2008. It was subsequently amended on 12/02/2008.
    On 01/07/2009 the authorities indicated that the special letter-boxes for detainees’ correspondence with the European Court have been installed in prisons.
    Assessment: The measures taken to avoid further violations of Article 8 in cases concerning detainees’ correspondence with the European Court are welcome.
    However, information is awaited on other measures taken or envisaged to prevent new similar violations in cases concerning the detainees’ correspondence with other addressees (see notably the violations in the cases of Andrulewicz, Bobel, Najdecki, Kozimor, Pawlak, Zborowski and Zborowski No. 3). Moreover, information would be useful on the follow-up of the draft amendment to the Code of Execution of Criminal Sanctions.
    5) Violations of the right to respect for family life in the Klamecki No. 2, Ferla cases and Eryk Kozlowski (Article 8): The judgments Klamecki No 2 and Ferla have been sent out to criminal courts. The Ferla judgment has also been disseminated to prosecutors.

    Information is awaited on the dissemination of the Eryk Kozlowski judgment to criminal courts.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in March 2010 in the light of further information to be provided on general measures.

    1543/06 Bączkowski and others, judgment of 03/05/2007, final on 24/09/2007
    This case concerns the violation of the right to peaceful assembly of the applicants, the Foundation for Equality and five of its members (violation of Article 11). In the context of their “Equality Days” campaign, the applicants wished to organise a march and rallies in Warsaw to draw public attention to discrimination against minorities, women and the disabled. On 12/05/2005 and 03/06/2005 they applied for permission to organise respectively the march and the rallies. On 20/05/2005, in an interview in a national newspaper, the Mayor of Warsaw expressed strong personal opinions about freedom of assembly and “propaganda about homosexuality” and stated that he would refuse permission to hold the demonstrations. Permission was denied on 03/06/2005 and 09/06/2005. Despite the refusal, the march did take place on 11/06/2005. On 17/06/2005 and 22/08/2005 the appellate authorities quashed the decisions of 03/06/2005 and 09/06/2005 on the ground that they had been poorly justified and in breach of the applicable laws.
    The European Court found that the refusal to authorise the march and the rallies constituted an interference with the applicants' rights as guaranteed under Article 11, which was not “prescribed by law”, in particular given the decisions of 03/06/2005 and 09/06/2005 quashing the first-instance authorities' decisions.
    It also found that the remedies available, all post hoc, did not provide adequate redress to the applicants (violation of Article 13 in conjunction with Article 11).
    Moreover, the European Court noted that the refusal of the march had been based on the applicants' failure to submit a “traffic organisation plan”, whereas other organisers had not been subject to a similar requirement. As regards the rallies, they had been refused due in particular to the risk of violent clashes between demonstrators. It was not however disputed that the authorities had given permission to other groups to hold counter-demonstrations on that same day. The Court observed that the decisions had been given by the municipal authorities acting on the Mayor's behalf and after he had already made known to the public his opinion on the matter in the interview of 20/05/2005. Thus the Mayor's opinions affected the decision-making process and, as a result, infringed the applicant's right to freedom of assembly in a discriminatory manner (violation of Article 14 in conjunction with Article 11).
    Individual measures: The march and the rallies for which permission had been given duly took place on 11/06/2005. Before the European Court the applicants claimed no compensation for damage.
    Assessment: in these circumstances, no individual measure appears to be necessary.
    General measures:
    1) Violation of Article 11: According to Section 8 of the 1990 Assemblies Act, a municipality may refuse permission for the holding of a demonstration if its purpose is in breach of the Act itself or of provisions of the Criminal Code, or if the demonstration might entail a danger to life or limb, or a major danger to property.
    On 18/01/2006 the Constitutional Court gave a judgment in which it found that the provisions of the Road Traffic Act as applied in the applicants' case had been incompatible with constitutional guarantees of freedom of assembly.
    Clarification is awaited as to the currently applicable provisions of the Assemblies Act and the Road Traffic concerning the conditions in which the organisation of marches and rallies may be refused.
    2) Violation of Article 13 in conjunction with Article 11: The European Court noted that the organisers had given sufficient forewarning of their plans to the authorities (12/05/2005 for the march and 03/06/2005 for the rallies): under Section 7 of the Assemblies Act a request to hold a demonstration must be submitted to the municipality no earlier than 30 days and no later than three days before the date of the event. A similar law did not exist, however, whereby the authorities had been obliged by a legally binding time-frame to give their final decision before the demonstrations were to take place.
    Information provided by the Polish authorities: The Ministry of Interior and Administration is currently preparing an amendment to the Assemblies Act with a view to introducing an effective remedy against local authorities’ refusal to hold demonstrations. However, due to the complexity of the issue, the draft amendment is still under preparation in the ministry.
    Information is awaited on the progress of this legislative work.

    3) Violation of Article 14 in conjunction with Article 11: This violation was of an isolated nature and was due to the personal opinions of the Mayor of Warsaw.
    Measures taken: the judgment of the European Court has been published on the website of the Ministry of Justice (www.ms.gov.pl).
    Information is awaited on the dissemination of the European Court's judgment’s to competent authorities as well as on other measures taken or envisaged to prevent new, similar violations.

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

    - Cases concerning the unfairness of lustration proceedings
    38184/03 Matyjek, judgment of 24/04/2007, final on 24/09/2007
    68761/01 Bobek, judgment of 17/07/2007, final on 10/12/2007
    37469/05 Luboch, judgment of 15/01/2008, final on 15/04/2008
    These cases concern the unfairness of “lustration proceedings” (proceedings aimed at exposing persons having worked for or collaborated with the state's security services during the communist period) (violations of Article 6§1 in conjunction with 6§3). In these proceedings, conducted between 1999 and 2001 before the Warsaw Appeal Court, the applicants (respectively a member of the Parliament and advocates) were found guilty of having been deliberate and secret collaborators of the communist secret services and, consequently, having lied in their lustration statements,
    The European Court criticised a few particularities of these lustration proceedings. First, it noted that under a series of successive laws the communist-era security services’ materials continued to be regarded as a state secret and their confidential status had been upheld by the State Security Bureau. In this context, in the Matyjek case, in which certain documents were thus declassified in 2000 whilst other documents subsequently added to the file were still confidential, the European Court also questioned the legitimacy of the power of the State Security Bureau to lift the confidentiality of certain “top secret” documents. Secondly, the applicants did not have an unrestricted access to his file and to any notes they had made, and could not obtain copies of relevant documents. Thirdly, the Commissioner of Public Interest, whose powers were identical to those of a public prosecutor, had a right of access to all the applicants’ documentation, could hear witnesses and order expert opinions, and had at his disposal staff who had had official access clearance for classified documents. Finally, the European Court observed that only the operative parts of the judgments were notified to the applicants, as the written reasons, although prepared, could only be consulted in the secret registry of court due to the confidentiality of the information contained therein.
    Finally, the European Court found the applicants did not have an effective remedy at their disposal under domestic law by which he could challenge the legal framework setting out the features of lustration proceedings.
    Individual measures:
    In the Matyjek case, the applicant was stripped of his parliamentary seat and declared ineligible for ten years, by a judgment of the Warsaw Appeal Court of 17/12/2000.
    In the Bobek case, the applicant’s good name was at stake in the proceedings. The Warsaw Appeal Court’s judgment of 15/09/1999 finding her declaration untrue was regarded as a loss of moral qualification necessary for the exercise of the profession of barrister (§ 63 of the judgment).
    In the case of Luboch, following the Warsaw Appeal Court’s judgment of 25/10/2001, the applicant was deprived of the right to practise as an advocate by a decision of the President of the Rzeszow Regional Bar Council 09/05/2005 (§26 of the judgment).
    In all cases the European Court found that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage. The applicants’ claims for pecuniary damage were rejected because of lack of causal link with the violation found. The European Court found it could not speculate on what might have been the outcome of the proceedings if they had complied with Article 6.
    Information is awaited as to the possibility of re-opening the lustration proceedings as well as on other possible measure to erase the consequences of violation for the applicants.

    General measures: Concerning the confidentiality of documents and the State Security Agency’s powers to lift it, these resulted from a series of successive laws, including the 1999 Act on the Protection of Classified Information, on the basis of which the communist-era security services' materials continued to be regarded as a state secret.
    As regards the privileged position of the Commissioner for Public Interest, it resulted from the provisions of the 1997 Lustration Act.
    Concerning the restricted access to the court file and the impossibility for the applicant to obtain the written reasons of the judgment, such restrictions resulted from the combined application of the provisions of the Code of Criminal Procedure and the 1999 Act on the Protection of Classified Information.
    In the case of Bobek, the European Court held that the violation could not be said to have originated from any single legal provision or even from a well-defined set of provisions. It rather resulted from the way in which the relevant laws were applied to the applicant’s case and, in particular, from the “special arrangements” referred to in Article 156§4 of the Code of Criminal Procedure, allowing the President of the Lustration Court to limit the applicant’s access to case files and her possibilities of taking notes and copying documents (§§ 73 and 33).
    Measures taken: The 1997 Lustration Act was repealed and replaced by a new law of 18/04/2006. According to the latter, lustration proceedings may be instituted by a special prosecutor; therefore the function of the Commissioner of Public Interest does not exist any longer.
    The judgments in the cases of Matyjek and Bobek have been published on the website of the Ministry of Justice www.ms.gov.pl.
    Information is awaited on the dissemination of the European Court's judgment to the competent authorities (Warsaw Appeal Court and Supreme Court, State Security Agency, relevant prosecutors) as well as on measures envisaged or taken to prevent new, similar violations. In this context clarification is needed:
    - on the currently applicable provisions on lustration proceedings, and in particular on the position of the prosecuting authorities,
    - on whether restrictions on access to the case file and serving the written reasoning of judgments would still apply to persons in the applicant's situation in the light of currently applicable provisions of the Code of Criminal Procedure and the legislation on protection of classified information,
    - on whether the Head of the State Security Bureau is still empowered to lift the confidentiality of documents in lustration proceedings.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in March 2010, in the light of information to be provided on individual and general measures.

    22860/02 Woś, judgment of 08/06/2006, final on 08/09/2006
    The case concerns a violation of the applicant’s right of access to a court (violation of Article 6§1) in the context of his appeal before the Polish-German Reconciliation Foundation under the “first compensation scheme”, set up to compensate victims of nazi persecution.
    The “first compensation scheme” was set up under an agreement of 16/10/1991 between Poland and the Federal Republic of Germany. Under the scheme, in November 1991, the Polish government set up the foundation mentioned above, the remit of which was to compensate victims of nazi persecution from funds paid by the government of the Federal Republic of Germany. The “second compensation scheme” was established under joint statement of 17/07/2000 between a number of countries, including Poland, the Federal Republic of Germany, the United States and Israel.
    Under the first compensation scheme, in February 1994, the Foundation's Verification Commission (Komisja Weryfikacyjna) awarded the applicant compensation for forced labour performed between 1941 and 1945. As that decision did not take account of the fact that he had been deported, the applicant appealed to the Appeal Verification Commission (Odwalawcza Komisja Werfikacyjna), which dismissed his appeal. In 1999 the Foundation's Management Board (Zarzad Fundacji) adopted Resolution 29/99 laying down that compensation was payable only to forced labourers who had been deported, with the exception of persons who had been subjected to forced labour before the age of 16 (in February 1944). Subsequently, in March 2000, the applicant obtained additional compensation, but only in respect of forced labour performed before he had reached that age, the Foundation having taken the view that the deportation criteria were not met in his case. The applicant challenged this decision unsuccessfully before the Appeal Verification Commission and the Supreme Administrative Court. The Supreme Administrative Court ruled that the administrative courts did not have jurisdiction to review such decisions.

    In addition, under the Supreme Court's case-law, which was that the Foundation was not a public authority and that the right to awards by the Foundation was not a civil-law matter, the national courts were not competent to deal with entitlement claims.
    The European Court held that, in the particular circumstances of the case, the Foundation's actions in respect of both compensation schemes engaged the responsibility of the Polish state (regard being had in particular to the manner in which the Foundation's management bodies had been set up) and that the right to apply to the Foundation for compensation for nazi persecution was a civil right for purposes of Article 6§1 of the Convention. It held that the Foundation's decision-making bodies, the Verification Commission and Appeal Verification Commission, could not be regarded as tribunals for purposes of Article 6§1 in view, in particular, of the fact that their members were appointed and dismissed by the Foundation's Management Board and Supervisory Board respectively. In addition, by ruling out all judicial review of these boards' decisions in individual cases, the domestic courts had left the applicant with no possibility of having them reviewed by a “tribunal”.
    Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. Moreover, in the light of the information provided by the Polish authorities on general measures (see the Supreme Court’s resolution of 27/06/2007 below), it seems that the applicant’s claims as invoked before the Appeal Verification Commission in the proceedings under the first compensation scheme might be examined by a “tribunal”.
    Bilateral contacts are under way to clarify whether this measure is sufficient.
    General measures:
    • Information provided by the Polish authorities:
    1) Publication and dissemination of the judgment of the European Court: The judgment has been published on the website of the Ministry of Justice www.ms.gov.pl and in the Bulletin of the Warsaw Information Office of the Council of Europe (No. 2006/III), with a commentary. It has been also sent out to the Presidents of courts of appeal.
    2) Cessation of payments: On 7/06/2006 the Foundation ceased paying compensation under the first compensation scheme under its Resolution 29/2002, the funds from the German government having been exhausted. The second compensation scheme ceased operation on 30/09/2006, the last payments under this scheme being exceptionally made until 30/12/2006. It is no longer possible to receive payments from either of the compensation schemes.
    3) Complaints brought under domestic legislation: The Polish Constitutional Court is currently examining a complaint lodged by a certain Stanisław K., supported by the Polish Ombudsman, according to which certain provisions of the laws governing the competence of administrative courts and their rules of procedure are contrary to Article 45§1 of the Polish Constitution, which guarantees the right of access to a court. These provisions exclude decisions of the Polish-German Reconciliation Foundation from the competence of administrative courts, even though they are in general empowered to control the acts of administrative authorities. The Constitutional Court will soon deliver a decision on the admissibility of this complaint.
    Secondly, the Polish Ombudsman has referred a question on points of law (zapytanie prawne) to the Supreme Court as to whether final decisions of the authorities of the Polish-German Reconciliation Foundation concerning financial assistance may be subject to judicial review by ordinary courts. In this respect the Ombudsman invoked the judgment of European Court delivered in this case and Recommendation Rec(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. On 27/06/2007 the Supreme Court adopted a resolution confirming that such decisions of the Polish-German Reconciliation Foundation may be subject to judicial review by ordinary courts (case No 152/06).
    Thirdly, on 12/02/2007 the public prosecutor brought a civil action before the Warsaw Regional Court on behalf of Ms. Walentyna B., contesting a refusal to award financial compensation under the second compensation scheme. These proceedings were instituted on the basis of the provisions of Code of Civil Procedure allowing the public prosecutor to bring action where it is necessary for the protection of the rule of law, citizens' rights and social interest.
    Information is awaited on the follow-up to these actions brought under of domestic law.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of further information to be provided on individual and general measures.

    59444/00 Kania, judgment of 10/05/2007, final on 10/08/2007
    23779/02 Kozłowski, judgment of 23/01/2007, final on 23/04/2007
    These cases concern the violation of the applicants’ right of access to a court due to domestic courts' refusal to exempt them from court fees (violation of Article 6§1).
    In the Kania case, the applicant as a child had an accident at his state primary school in which he lost the sight in his right eye. In 1994 he lodged a civil action against the State Treasury for compensation and the increase of invalidity pension previously determined in a court decision and was initially exempted from court fees. Consequently, his claims were partially allowed, but those for non-pecuniary damage were dismissed. The applicant lodged a cassation appeal against the Wroclaw Court of Appeal judgment of 11/04/2000 and applied for an exemption from court fees in these proceedings. However, this request was dismissed by the same court on 08/09/2000. As the applicant did not pay the court fees, on 20/09/2000 the Wrocław Court of Appeal rejected his cassation appeal. His interlocutory appeal against this decision was rejected on 17/11/2000, because of non-payment of court fees pertaining to this appeal, even though the applicant had applied for their exemption.
    In the Kozłowski case the applicant lodged a civil action seeking to have a notarial deed declared null and void and requested an exemption from court fees. His motion was dismissed by a final decision of 24/10/01 of the Poznań Court of Appeal.
    In both cases the European Court found that the judicial authorities failed to secure a proper balance between the interest of the state in collecting court fees and the interests of the applicants in pursuing their civil claims.
    Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. In the Kania case, at the stage of cassation appeal proceedings, the applicant’s claims for compensation amounted to 500 000 PLN (approximately EUR 125 000). In the Kozłowski case, the applicant’s civil action was related to a property whose value amounted to 1 000 000 PLN (approximately EUR 250 000). As the applicant failed to pay the required court fees, his statement of claim was returned to him on 20/12/2001.
    Information is awaited on the applicants’ current situation in order to assess whether individual measures are necessary.
    General measures:
    1) Legislative measures: This case presents similarities to the Kreuz case (28249/95, Section 6.2), in which measures have been already taken. The Diet adopted a new Act on court costs in civil cases. This law entered into force on 2/03/2006, and brings together in a single text questions of general principle related to the imposition of costs, their amount and procedures for exemption, these questions having previously been determined by different sets of rules (in particular the 1967 Act on court costs and the Civil Code). The new law provides fixed amounts for costs in most court proceedings; previously, the general rule was that costs should be proportional. In addition, they simplify the calculation of proportional costs, which remain applicable in most disputes over assets. At present, proportional costs are equivalent to 5% of the value of the asset in dispute, with a minimum of 30 PLN and a maximum of 100 000 PLN. The new law also lays down the rules for exemption from costs. Parties to a dispute may be exempted, in whole or in part, by the judge if they make a declaration to the effect that they could not pay them without risking their living or that of their family. Such declarations must be accompanied by a detailed statement of their financial situation. The possibility of exemption is available equally to physical and legal persons as well as organisational entities without legal personality.
    2) Other measures: Even though the 2005 Act on Court Costs provides a new scheme for fixing such fees, the rules for exemption remain general. Exemption from such fees depends of the courts’ assessment of the individual circumstances of any case. In these two cases, the violations were due to the judicial authorities’ assessment of their overall circumstances, which led to refusals of exemption contrary to the requirements of the Convention. In this context, some specific features of these cases should be noted.
    In the Kania case, the European Court observed that the Wrocław’s Court of Appeal’s decision of 08/09/2000 contained no reasons, as no appeal lay against that decision. A similar issue is being examined in the context of the Tabor case (judgment of 27/06/2006, final on 27/09/2006, Section 4.2), in which the applicant's legal aid request was rejected by the second-instance court without invoking any reasons for it. Moreover, in the Kania case the European Court also underlined that there was much at stake for the applicant in the domestic proceedings.

    In the Kozłowski case, the European Court noted that the judicial authorities assessed his financial situation solely on the ground that he must have lived with his wife and shared a household with her, although he had been married under the system of separate ownership and did not indicate where he lived.
    Considering the specific circumstances in the Kania and Kozłowski cases, information is awaited on publication and dissemination of these two judgments to the competent civil courts.
    Recent development: by letters of 06/07/2009, the Polish authorities provided information on individual and general measures, which is currently being assessed.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in March 2010, in the light of the assessment of the information provided on individual and general measures.

    14348/02 Garycki, judgment of 06/02/2007, final on 06/05/2007
    This case concerns the excessive length of the applicant's detention on remand between 2000 and 2002 (violation of Article 5§3).
    The case also concerns a breach of his right to the presumption of innocence due to the grounds used by the Katowice Court of Appeal to motivate its decision of 30/10/2001 extending his detention. In this decision, delivered before the applicant was convicted, the Court of Appeal stated that he had committed offences with which he had been charged. The European Court found that there could be no justification for a court of law to make a premature expression of this kind (violation of Article 6§2).
    Individual measures: The applicant's detention on remand ended in December 2002, when the Regional Court convicted him of most of the offences of which he had been charged and sentenced him to imprisonment. This judgment was upheld by the Court of Appeal in October 2003.
    The European Court found that the finding of violations constituted in itself sufficient just satisfaction.
    Assessment: in these circumstances, no other individual measure appears to be necessary.
    General measures:
    1) Violation of Article 5§3: this case presents similarities to that of Trzaska (25792/94, 1072nd meeting, December 2009, Interim Resolution CM/ResDH(2007)75).
    2) Violation of Article 6§2: The judgment of the European Court has been published on the website of the Ministry of Justice www.ms.gov.pl and sent out to competent courts.
    Assessment: no other general measure appears to be necessary in this respect.

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

    45972/99 Siemianowski, judgment of 06/09/2005, final on 15/02/2006
    The case concerns the excessive length of two sets of proceedings concerning the applicant's visitation rights in respect of his daughter following his divorce (violation of Article 6§1).
    In the absence of an agreement with his ex-wife concerning visiting rights, the applicant brought an action in 1992; a decision was rendered in February 1994 fixing the modalities for the exercise of this right. This decision was not observed by the applicant's ex-wife, so he brought proceedings to enforce it, in vain despite the fines the court imposed on the ex-wife. A fourth application for enforcement was rejected in July 1998.
    In the meantime, in October 1994, the applicant brought further proceedings, regarding the modification of his visiting rights in which, in March 1997, the court reaffirmed its decision of February 1994. The applicant continued in vain to try to secure enforcement of this decision until, in May 2002, his daughter reached the age of majority.
    The European Court found that the length of these proceedings (more than 4 years, 5 months and more than 7 years, 6 months respectively, for two levels of jurisdiction in both cases) had been excessive, particularly regarding the duration of the execution phase and considering what was at stake for the applicant. Moreover, in the Court's view the suspension of the first set of proceedings pending a new decision on the merits of the visiting rights was unnecessary whilst the psychological report ordered in the second set had taken too long to prepare.
    Individual measures: None: both sets of proceedings are closed and the daughter has reached the age of majority.

    General measures: The judgment of the European Court has been published on the website of the Ministry of Justice www.ms.gov.pl and sent out to family courts.
    The problem of the excessive length of civil proceedings in Poland is under examination in the context of other cases raising the same problem (such as Podbielski, 27916/95, Interim Resolution CM/Res/DH(2007)28, 1072nd meeting, December 2009).

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

    - 14 cases against Portugal

    11182/03+ Colaço Mestre and SIC - Sociedade Independente de Communicação, S.A., judgment of 26/04/2007, final on 26/07/2007
    20620/04 Azevedo, judgment of 27/03/2008, final on 27/06/2008
    17107/05 Campos Dâmaso, judgment of 24/04/2008, final on 24/07/2008
    These cases concern the violation of the applicants’ right to freedom of expression due to their conviction by Portuguese criminal courts for defamation or breach of judicial secrecy in published or broadcast utterances (violations of Article 10).
    In the case of Colaço Mestre and SIC the Oporto criminal court convicted the applicants, a journalist and the company owning the national television station, for having broadcast a defamatory interview in 1996. It sentenced the first applicant to a fine of 260 000 escudos (PTE), with 86 days’ imprisonment in default and ordered both applicants to pay jointly 800 000 PTE in damages to the person concerned. The Porto Court of Appeal upheld the judgment on 2/10/2002.
    On 7/05/2003 the Castelo Branco Court convicted Mr Azevedo, a researcher, of defamation for certain passages published in a book in 2001, and sentenced him to a month’s imprisonment suspended. It also ordered him to pay a symbolic amount of 1 EUR in damages to the person concerned and to pay the publication costs of extracts of the judgment. On 17/12/2003 the Coimbra court of appeal replaced the prison sentence with a fine of 1000 EUR, with 66 days’ imprisonment in default.
    On 24/05/2004 the Esposende Criminal Court found Mr Campos Dâmaso, a journalist, guilty of breach of “segredo de justiça” (“judicial secrecy”) under section 371 of the Penal Code for having published details of the summons against a politician in a case pending for prosecution and fined him 1750 EUR, together with court costs. On 24/01/2005 the Guimarães Court of Appeal upheld the judgment.
    The European Court found in all cases that the respondent state had failed to strike a fair balance between the need to protect the applicants' right to freedom of expression and the need to protect the rights and the reputation of the complainants or judicial secrecy.
    Individual measures: The European Court held in all cases that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. In respect of pecuniary damage, it awarded the reimbursement of the amounts the applicants had to pay on account of their conviction (fine; damages to the complainant, except in Colaço Mestre and SIC in the absence of proof of payment; procedural fee; and publication costs).
    Act No. 48/2007 (in force since 15/09/2007) amending the Code of Criminal Procedure permits the re-examination of domestic judgments following a judgment of the European Court finding a violation (Article 449). Under Article 450 the public prosecutor, as well as others including the person convicted, are entitled to request re-examination without any time-limit.
    1) Colaço Mestre and SIC: On 4/06/2009 the applicants filed a request with the Oporto Criminal Court for review of the domestic judgment of 2/10/2002.
    2) Azevedo: On 23/04/2009 the Supreme Court granted Mr Azevedo’s request for review of the proceedings.
    3) Campos Dâmaso: The Portuguese authorities indicated that Mr Campos Dâmaso has also requested the review of the domestic judgment.
    Information is awaited on the outcome of the reopened proceedings.

    General measures: As regards the cases of Colaço Mestre and SIC and Azevedo, the European Court held that to provide the possibility of a prison sentence in such classic defamation cases would inevitably have a disproportionate and dissuasive effect in a democratic society. Moreover, in the Campos Dâmaso case the Court underlined the duty of the press to inform the public about offences of which politicians stood accused. It also observed that the moderate level of the fine against Mr Campos Dâmaso had by no means negated the dissuasive effect of his conviction, given the severity of the criminal penalty incurred.
    1) Publication and dissemination: Given the direct effect of the Convention and the case-law of the European Court in Portugal, the Portuguese courts are expected to align their practice to the Convention requirements under Article 10 as they emerge from these judgments, in particular to avoid the imposition of prison sentences in defamation cases. Thus, the European Court's judgments have been translated into Portuguese and are available on the Internet site of the Cabinet of Documentation and Comparative Law (www.gddc.pt) which comes under the Prosecutor General of the Republic. Moreover, freedom of expression has been dealt with in university courses, seminars and continuous training courses organised by Legal Studies Centre (Coimbra) in 2007 and 2008.
    2) Legislative changes:
    a) “Segredo de justiça”: At the time of the facts of Campos Dâmaso, a case-file became public only when the case was at the judicial stage. The then applicable Section 86§4 of the Code of Criminal Procedure provided that all parties to the proceedings, and other persons having access to the case-file, are bound by the “segredo de justiça” as long as the case was pending before the investigating judge.
    Act No. 48/2007 mentioned above amended the Code of Criminal Procedure so that “segredo de justiça” could no longer be applied automatically in the period before the judicial stage – as at the time of the Campos Dâmaso case – but only on a specific decision either by the investigating judge or the public prosecutor, under control of the investigating judge.
    b) Defamation cases:
    Bilateral contacts are under way to enquire whether further measures are necessary.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in March 2010, in the light of information to be provided on individual and general measures.

    73229/01 Reigado Ramos, judgment of 22/11/2005, final on 22/02/2006
    The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child (born in 1995) (violation of Article 8).
    After their separation, the applicant and the mother concluded an agreement regarding their child, according to which the applicant should have a right of access. A year later, in 1998, the applicant brought proceedings seeking the judicial enforcement of the agreement, which was not being observed by the mother. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (by requesting assistance from the police and the social security services, etc.). The proceedings were closed in 2003 with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant.
    Pointing out that the applicant had last seen his daughter on 04/10/1997, when she had been just two years old, the European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which was still valid, had been automatic and stereotyped and that those authorities had failed to take practical and concrete steps to resolve the issue. The European Court noted in particular that neither the prosecution nor the competent court had tried to bring the parties together or actively involve the social services in finding a solution to the problem.
    Individual measures: In February 2007, the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child had been identified. At a meeting held before a judge on 20/06/2007, it was agreed between the parties that, before a new regime on the right of access could be determined, the child, as well as both the parents, had to undergo psychological examinations, which took place beginning 2008. According to the Portuguese authorities, following these examinations, two meetings took place before the judge (06/05 and 13/05/2008) between the parents accompanied by their counsel. During the second meeting the child was heard and refused to meet her father. It was agreed that a meeting between father and daughter would be organised at the social security offices in presence of social advisers, to enable the father to establish contact with his daughter. The meeting did not take place as the father was not summoned in time.
    Following an evaluation report drawn up by the Social Security Institute, the judge decided on 15/07/2008 that preparatory psychological support was a pre-condition for establishing contacts between the child and her father.

    In a new report of 24/07/2008, Social Security proposed to avoid any contact between them before the psychological support had started. On 12/09/2008, the judge ordered the Social Security Institute to provide precise information on how the psychotherapist’s support was to be put in place.
    Further information provided by the Portuguese authorities (13/03/2009): At the meeting held on 19/02/2009 between the judge, the parents and their counsels and a social adviser, it was confirmed that the parents did not oppose the psychotherapeutic intervention. Following the judge’s order, the social adviser made an approach to two institutions and found two psychotherapists willing to carry out the “systemic psychotherapeutic intervention”. On 11/03/2009, it was decided to inform the parents and to have a new meeting so that they could choose one of the two psychotherapists and agree on the starting date of the therapy.
    Bilateral contacts are under way to assess the situation in the light of information recently provided by the applicant’s lawyer.
    General measures:
    1) Publication and dissemination: A copy of the judgment was sent to all national authorities concerned, including to the Instituto de Reinserção Social (the Institute of Social Reintegration, which carries out social investigations ordered in the framework of court proceedings on matters related to parental rights). The judgment was also translated and published on the Internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Institute of Social Reintegration were requested to adopt appropriate measures in order to prevent new, similar violations in the future.
    2) Training: The Portuguese authorities also indicated that the Institute for Social Security has been vested with competences concerning parental authority. The Institute was studying training projects on positive parenting so as to establish psycho-social policies to help families with matters such as failure to comply with rights of access or to enforce judicial decisions on parental authority.
    3) Legislative measures: Law No. 61/2008 on divorce (entered into force on 01/12/2008) modified the Civil and the Criminal Codes. Article 1906 of the Civil Code on the exercise of parental authority provides inter alia that the tribunal will decide on the right of access on the basis of the best interest of the child. According to the new Article 1776-A, an agreement on the exercise of parental authority is submitted to the prosecutor at the first-instance tribunal, who shall decide within 30 days.
    Articles 249 (Abduction of minors) and 250 (Maintenance obligation) of the Criminal Code have also been amended. Article 249 provides that child abduction or reiterated and unjustified refusal to abide by agreements regulating the exercise of parental authority is punishable by up to two years’ imprisonment or by a up to 240 day-fine. As regards failure to comply with the agreement, the penalty is softened when the parent’s behaviour is motivated by the wish to respect the child’s will, when the child is over 12 years of age.
    Assessment: The legislation recently passed is to be welcomed since it reinforces the existing means in Portuguese law to ensure compliance with the obligations resulting from Article 8 of the Convention.
    Information is still awaited on the implementation of the training measures envisaged by the Institute for Social Security to the extent that they will help to ensure the enforcement of judicial decisions on the modalities of exercising parental authority.

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

      - Cases concerning inadequate compensation for land expropriated under the agrarian reform of 197530

    30533/03 Carvalho Acabado, judgment of 18/10/2005, final on 15/02/2006
    10172/04 Campos Costa and others, judgment of 30/10/2007, final on 30/01/2008
    24668/05 Companhia Agrícola Cortes e Valbom S.A., judgment of 30/09/2008, final on 30/12/2008
    21513/05 Companhia Agrícola da Barrosinha S.A., judgment of 15/01/2008, final on 15/04/2008
    21240/02+ Companhia Agrícola de Penha Garcia, S.A. and 16 other cases “Agrarian reform”, judgment of 19/12/2006, final on 19/03/2007
    44311/04+ Costa Capucho and 23 other cases “Agrarian reform”, judgment of 15/01/2008, final on 15/04/2008
    25025/05 De Sousa Carvalho Seabra, judgment of 16/12/2008, final on 16/03/2009
    41453/02 Herdade da Comporta - Actividades Agro Silvícola e Turísticas, S.A., judgment of 10/07/2007, final on 31/03/2008
    31677/04 Sociedade Agrícola Herdade da Palma S.A., judgment of 10/07/2007, final on 12/11/2007
    17199/05+ Sociedade Agrícola da Herdade das Várzeas, Lda and 22 other cases “Agrarian reform”, judgment of 23/09/2008, final on 23/12/2008

    - 8 cases against Romania

    37284/02 Lafargue, judgment of 13/07/2006, final on 13/10/2006
    The case concerns a violation of the applicant's right to respect for his family life due to the failure by the Romanian authorities in their obligation to take adequate and sufficient efforts to ensure respect for the applicant's right of access to and residence with his son, born in 1995, over a period of approximately six years (violation of Article 8).
    After the applicant's divorce in 1997, the custody of the child was awarded to his ex-wife. On 16/12/1999 an access and residence order was made (final on 3/05/2000) authorising the applicant to spend one week with his son during the winter holidays and two weeks during his annual holidays. The applicant applied to the court bailiff service of the Bucharest Court of First Instance to obtain enforcement of this decision. However, his attempts remained ineffectual mainly due to the conduct of the mother, who failed to appear or came alone when summoned to attend with the child, or refused her former husband, accompanied by a court bailiff, entry to her flat.
    Following a request by the French authorities under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the Romanian Ministry of Justice brought an action demanding that a detailed access programme be drawn up for the applicant. In 2005, the Bucharest Court of First Instance drew up a provisional access programme granting the applicant access on alternate weekends, from 4 p.m. on Friday to 5 p.m. on Sunday. Even so, the applicant was only able to meet his child for five months at the beginning of 2005 and after notice of the application had been given to the government. Moreover, the Romanian authorities only imposed a small fine on the ex-wife.
    Individual measures: According to the European Court’s judgment the authorities did not pursue the programme of meetings between the applicant and his child after first five months of 2005, even though psychologists' reports attested to the effectiveness of such meetings.
    Information provided by the Romanian authorities: The applicant spent one week with his son during the winter holidays in 2006.
    By a judgment of 22/06/2006 (final in May 2007) the Bucharest Court established a visiting schedule for the applicant. According to this schedule, the applicant may visit his son from Friday (6 p.m.) until Sunday (6 p.m.) during the first and the third week of each month. The stays were also foreseen for the first week of the Easter school holidays, in the period from 15/07 (6 p.m.) to 30/08 (6 p.m.) and during the first week of the Christmas holidays. This decision provides a possibility to send the applicant’s son during those periods to the applicant’s residence in France. By a letter of 4/06/2007 the Ministry of Justice requested a bailiff’s office to undertake all necessary measures to ensure the implementation of this decision.
    On 27/03/2007 the Court of First Instance of Bucharest decided that the applicant’s son should undergo two months of psychological treatment. In May 2008 the Romanian authorities presented a report from the first psychological interview of the beginning of 2008. In this report it is mentioned that the child said he had spent the Christmas holiday with his father, that he would like the applicant to be more active and that they should enjoy more activities together.

    The child mentioned that it would be more comfortable for him if meetings were to be at his request. He said that he suspected his father’s feelings were not genuine, as, in his opinion, the applicant paid particular attention to making the father-son relationship public, which he found disturbing. The child also mentioned that he would prefer that the meetings between him and his father did not exactly respect the time intervals fixed by the domestic court, his school schedule and preparation programme being very busy.
    Additional information is expected on the progress in the implementation of the applicant’s right of access to and residence with his son.
    General measures:
    1) General legislative provisions regulating the exercise of the right of access
    Information is awaited on any appropriate general legislative provisions capable of ensuring the respect of the state's positive obligations under Article 8 with respect to access rights. Information would in particular be useful as regards the adequacy and effectiveness of the available means in this respect (e.g. enforcement measures, including sanctions, psychological and social assistance, etc.) and their capacity to ensure implementation of the legitimate rights of interested persons and respect for judicial decisions. Furthermore, information would be useful on any measures envisaged by the Romanian authorities in this respect.
    2) Specific legislative provisions concerning the implementation of the 1980 Hague Convention with respect of the right of access
    a) On 15/09/2004 Romania adopted Law No. 369/2004 on the implementation of the 1980 Convention on the Civil Aspects of International Child Abduction (entered into force on 29/12/2004). Specific provisions of this Law relate to the right of access:
    - Enforcement measures
    Law 369/2004 provides that the Romanian Central Authority (Ministry of Justice) shall attempt to bring about a friendly resolution concerning the exercise of the right of access. If this attempt fails, and at the explicit request of the person endowed with such right, the Central Authority shall take the necessary measures to ensure the compulsory enforcement of this right. The Law provides an initial, civil fine (approximately 125 to 625 euros) and, if the perpetrator does still not comply, the general rules governing the enforcement of court decisions are applicable. In addition, the court may order a defendant to pay a civil fine of approximately 12 to 25 euros for each day of delay.
    - Preparation of the child for the contact with its parent
    Law 369/2004 explicitly provides the possibility of psychological therapy for the child for a maximum of three months where access rights cannot be exercised due to the constant opposition of a child who manifests hostile feelings towards its parent (Article 18).
    b) On 5/04/2005 the Ministry of Justice, on the basis of Article 24 of Law 369/2004, adopted Order No. 509/C to approve the Regulation on the modalities of exercising the duties of the Ministry of Justice as a Central Authority designated through Law No. 100/1992 on Romania's accession to the 1980 Hague Convention.
    Bilateral contacts are under way to assess the statistical data and examples of the application of Law 369/2004 by domestic courts, submitted by the Romanian authorities in June 2008.
    3) Publication and dissemination of the European Court's judgment to relevant authorities:
    The European Court’s judgment was sent to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts.

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

    10337/04 Lupsa, judgment of 08/06/2006, final on 08/09/2006
    33970/05 Kaya, judgment of 12/10/2006, final on 12/01/2007
    These cases concern a violation of the applicants' right to respect for their private and family life on account of their expulsion for security reasons in August 2003 and April 2005 (violations of Article 8).
    The European Court found that these measures were not provided by a law responding to the requirements of the Convention. In this respect it noted that the applicants, Serbian and Turkish nationals respectively, were declared to be undesirable aliens, expelled and denied access to Romanian territory. These measures were ordered by the public prosecutor's office on the ground that the Romanian Intelligence Service had received sufficient and serious intelligence that they were engaged in activities capable of endangering national security. No proceedings were brought against the applicants for participating in the commission of any offence in Romania or any other country and they were not provided with any details as to the allegations against them. Furthermore, in the Lupsa case, in breach of domestic law, the applicant was not served with the order declaring his presence to be undesirable until after he had been expelled. Finally, the Bucharest Court of Appeal confined itself to a purely formal examination of the public prosecutor's orders.
    These cases also concern the failure to respect procedural guarantees in the procedure whereby the applicants were expelled (violations of Article 1 of Protocol 7). The European Court recalled that Emergency Ordinance no. 194/2002, the legal basis for the expulsion, did not afford them the minimum guarantees against the arbitrary action by the authorities. Thus, although the applicants' expulsions were carried out pursuant to a lawfully taken decision, the relevant law did not comply with the requirements of the Convention. In addition, the authorities had failed to comply with the requirements of Article 1 a) and b) of Protocol 7.
    Individual measures: The Romanian authorities have indicated that the applicants may request the re-examination of the decisions in question under Article 322 (9) of the Code of Civil Procedure. The European Court awarded them just satisfaction in respect of non-pecuniary damage.
    Assessment: no further individual measure seems necessary.
    General measures: Following the European Court’s judgments, Emergency Ordinance No. 194/2002 was amended on several occasions and republished on 5/06/2008. According to the new wording, Article 85 provides that declarations of undesirability of aliens are made by the Bucharest Court of Appeal, seised by a public prosecutor attached to this court at the request of the authorities having jurisdiction in the field of public order and national security. The data and information at the basis of such declarations shall be placed at the disposal of the judicial authority in accordance with the conditions provided by the law regulating national security activities and the protection of classified information. The public prosecutor's submission is examined by a court chamber sitting in private, the parties being summonsed. The judicial authority shall inform the alien of the facts at the basis of the submission. A reasoned judgment should be given within 10 days of the prosecutor's submission. It is final and shall be communicated to the alien concerned and, if the alien is declared undesirable, to the Aliens Authority for enforcement.
    An alien may be declared undesirable for between 5 and 15 years, with the possibility of extension. Article 86 provides the possibility of an appeal on points of law before the Supreme Court of Cassation and Justice against the judgment of the Bucharest Court of Appeal within 10 days from the date of its notification. The Court is required to give a decision within 5 days from the date of receipt of the request. In justified cases and in order to avoid the production of imminent damages, the alien may request the suspension of the enforcement of a decision declaring him or her undesirable, until the end of the proceedings.
    Both of the European Court’s judgments have been translated and published in the Official Journal and on the internet site of the Supreme Court of Cassation and Justice (http://www.scj.ro/decizii_strasbourg.asp). In addition, the Lupsa judgment was transmitted to the Superior council of Magistracy, with a view of bringing it to the attention of all domestic courts. It was also transmitted to the Bucharest Court of Appeal, the Ministry of Interior and the Authority for Aliens.
    Moreover, the Romanian authorities have submitted examples of decisions of the Bucharest Court of Appeal concerning the declaration of aliens as undesirable. In all cases the applicants were informed of the reasons for the request concerning them and were represented by lawyers.
    Bilateral contacts are under way to assess the information submitted and the necessity of further measures.

    The Deputies decided to resume consideration of this item at their DH meeting in June 2010 (DH), in the light of the outcome of the bilateral contacts.

    26105/03 Mitrea, judgment of 29/07/2008, final on 01/12/2008
    The case concerns the annulment by means of an extraordinary appeal of a final decision in the applicant's favour, given on 17/06/2002, following a request lodged by the defendant (violation of Article 6§1).
    The European Court observed that the situation in the present case was a typical example of divergence of views between courts concerning the admissibility and relevance of the evidence adduced, which did not justify the quashing of a final and binding decision. Consequently, the authorities failed to strike a fair balance between the interests at stake.
    Individual measures: Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation. In addition, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
    Assessment: No further measure appears necessary.
    General measures: The European Court recalled that legal certainty presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of substantial and compelling character (§ 24 of the judgment).
    Information is expected on measures taken or envisaged to avoid new, similar violations. In this context, publication of the European Court’s judgment and its dissemination among relevant courts and authorities is expected.

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

    42250/02 Calmanovici, judgment of 01/07/2008, final on 01/10/2008, rectified on 10/02/200931

    1562/02 Gaga, judgment of 25/03/2008, final on 29/09/2008
    The case concerns the applicant’s conviction in absentia by the Supreme Court of Justice, on 27/02/2001, on account of an error in the service of the summons to appear (violation of Article 6§1).
    The European Court noted that it had not been shown that the applicant had tried to abscond or that he had unequivocally waived the right to appear at his trial. It also noted that he had not been given the opportunity to obtain from a court a fresh determination of the charges against him (§57 of the judgment).
    Individual measures: Article 4081 of the Romanian Code of Criminal Procedure provides the possibility for the applicant to request the reopening of criminal proceedings in cases in which the European Court found a violation. Further, the European Court awarded the applicant just satisfaction for pecuniary and non-pecuniary damage.
    Assessment: No further measure appears necessary.
    General measures:
    Information is expected on the authorities’ assessment concerning the nature of the violation found by the European Court and measures taken or envisaged to avoid new, similar violations. Publication of the European Court's judgment and dissemination among the relevant courts and authorities are also expected.

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

      - Case concerning the violation of the right of access to a court due to excessive court fees required

    4227/02 Iorga, judgment of 25/01/2007, final on 25/04/200732

    30658/05 Beian No. 1, judgment of 06/12/2007, final on 06/03/2008
    The case concerns the unfairness of civil proceedings brought by the applicant in order to benefit under Law No. 309/2002 granting certain rights to those whose work during military service had been defined as forced labour. In 2005, the Supreme Court of Cassation and Justice dismissed the applicant’s request despite having found in favour of similar requests in other cases, both before and since the applicant’s appeal.
    The European Court considered that the inconsistency of the case-law of the supreme judicial authority was counter to the principle of legal certainty (violation of Article 6§1).
    The case also concerns discrimination suffered by the applicant, due to the inconsistency of the case-law, in comparison with others in similar situations who obtained recognition of their rights (violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1).
    Individual measures: The European Court awarded the applicant just satisfaction in respect of all heads of damage taken together.
    Romanian law provides, in Article 322§9 of the Code of Civil Procedure, the possibility of reopening civil proceedings in cases in which the European Court found a violation.
    Assessment: no further measure appears necessary.
    General measures: The European Court noted that the violations found in this case resulted from the inconsistent practice of the High Court of Cassation and Justice. The present judgment was published in the Official Journal and was also sent to the High Court of Cassation and Justice and to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts.
    Information is awaited on the current practice of the Supreme Court of Cassation and Justice in similar cases and measures taken or envisaged to avoid future violations.

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

    - 71 cases against the Russian Federation

    62936/00 Moiseyev, judgment of 09/10/2008, final on 06/04/2009
    The case concerns a number of violations related to the criminal proceedings initiated against the applicant in 1999-2001 for high treason.
    Conditions of the applicant's detention: The European Court found that they amounted to inhuman and degrading treatment because he was forced to live, sleep and use the toilet in poorly lit and ventilated cells with many other inmates for almost four years (violation of Article 3).
    Conditions of transport to court: The European Court found that they amounted to inhuman treatment in view of the fact that he had been transported more than a hundred times in standard-issue prison vans, which had no heating and were often overcrowded, without food, drink or access to a toilet, on average, six hours per day and at times (during his trial or at hearings concerning the extension of his detention) when he needed his powers of concentration (violation of Article 3).
    The applicant's pre-trial detention: The European Court considered that this detention was excessively lengthy because the domestic courts failed to justify its extension by reasons which could be regarded as sufficient (violation of Article 5§3).
    Right to a prompt examination of the lawfulness of detention: The European court found that the Supreme Court had not examined the applicant’s appeals against two decisions, of September and December 2000 rejecting his requests to be freed, and had not promptly decided upon other appeals introduced by the applicant against the decisions of July 2001 (violations of Article 5§4).
    Independence and impartiality of the trial court: The European Court noted that there were eleven replacements of the judges on the bench in the applicant’s case. The reasons for such replacements were only made known on two occasions. Article 241 of the Code of Criminal Procedure only mentioned the possibility of replacing a judge who was “no longer able to take part in the proceedings”, without setting out the circumstances in which such a replacement was possible or indeed required. Nor did this Article contain any procedural safeguards. In these circumstances, the European Court found that Russian criminal law failed to provide the guarantees that would have been sufficient to exclude any objective doubt as to the absence of inappropriate pressure on judges in the performance of their judicial duties (violation of Article 6§1).
    Proceedings in criminal cases against the applicant: The European Court found that they were excessively long (violation of Article 6§1).

    Unfairness of the proceedings: The Court found that the prosecuting authority had had unrestricted control in the matter of visits by counsel to the applicant and had been able to peruse the documents exchanged between them, which had the effect of giving the prosecution advance knowledge of the defence strategy and placed the applicant at a disadvantage vis-à-vis his opponent. The Court further found that access by the applicant and his defence team to the case-file and their own notes – which were kept in a special secret department of the detention facility and the Moscow City Court – had been so curtailed that these measures had effectively prevented them from using the information contained in them, since they had had to rely solely on their recollections. Finally, the Court considered that the suffering and frustration which the applicant must have felt on account of the inhuman conditions of transport and confinement had impaired his faculty for concentration and intense mental application in the hours immediately preceding the court hearings, when his ability to instruct his counsel effectively and to consult with them had been of primordial importance. The cumulative effect of the conditions and the inadequacy of the available facilities had excluded any possibility for the applicant to prepare his defence in advance, especially taking into account that he could not consult the case-file or his notes in his cell. The overall effect of these difficulties, taken as a whole, had so restricted the rights of the defence that the principle of a fair trial guaranteed by Article 6 was denied (violation of Article 6 §§ 1 and 3 (b) and (c)).
    The applicant’s right to receive family visits whilst in detention: The European Court found that the Custody Act (Federal Law on the Detention of Suspects and Defendants, No. 103-FZ of 15/07/1995) and the Internal Rules for Remand Centres fell short of the requirement of foreseeability as they conferred unfettered discretion on the investigator in this matter but did not define the circumstances in which a family visit could be refused.
    The provisions at issue only mentioned the possibility of refusing family visits, without saying anything about the duration of the measure or the reasons that might warrant its application. The European Court further found that the Custody Act restricted the maximum frequency of family visits to two per month in a general manner, without affording any degree of flexibility to determine whether such limitations were appropriate or indeed necessary in each individual case. The European Court found no reason for such stringent limitations and consequently held that the authorities failed to maintain a fair balance of proportionality between the means employed and the aim they sought to achieve.
    Finally, the European Court found a violation of the applicant’s right to respect for family life on account of the separation of the applicant from his family by glass partition (violations of Article 8).
    The applicant’s correspondence: The European court considered that Russian Law provided no legal protection against arbitrary interference by the public authorities in the applicant’s right to respect for his correspondence (violation of Article 8);
    Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained.
    On 12/01/2009 the applicant informed the Secretariat that he was no longer in detention and had no intention to seek the re-opening of the proceedings in his case.
    General measures:
    1) Independence and impartiality of the trial court: The new Code of Criminal Procedure has entered into force.
    Information is therefore awaited on new rules applicable to this issue.
    2) Unfairness of the proceedings: The new Code of Criminal Procedure has entered into force.
    Information is therefore awaited on new rules applicable to this issue.
    3) Poor conditions of pre-trial detention and lack of an effective remedy in this respect: These issues are being examined in the framework of the Kalashnikov group of cases (47095/99, 1072nd meeting, December 2009).
    4) Poor conditions of transport to the courthouse: This issue is also being examined in the framework of the Kalashnikov group of cases above-mentioned.
    5) Excessive length of pre-trial detention and criminal proceedings: These issues are being examined in the framework of the Klyakhin group of cases (46082/99, Section 4.2).
    6) Restrictions on detainees’ correspondence and family visits: These issues are being examined in the Vlasov case (78146/01, 1072nd meeting, December 2009).
    7) Publication and dissemination
    Information is awaited on publication of the judgment of the European Court and its dissemination, in particular to the Federal Service for Execution of Sentences, to the relevant departments of the Ministry of the Interior, to prosecutors and to courts, possibly with circular letters from their hierarchy.

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

      - Cases mainly concerning ill-treatment inflicted on the applicants while in custody and the lack of an effective investigation

    77617/01 Mikheyev, judgment of 26/01/2006, final on 26/04/2006
    5742/02 Akulinin and Babich, judgment of 02/10/2008, final on 02/01/2009
    1748/02 Belousov, judgment of 02/10/2008, final on 06/04/2009
    78145/01 Kovalev, judgment of 10/05/2007, final on 12/11/2007
    839/02 Maslova and Nalbandov, judgment of 24/01/2008, final on 07/07/2008
    9297/02 Nadrosov, judgment of 31/07/2008, final on 26/01/2009
    36410/02 Nikitin Oleg, judgment of 09/10/2008, final on 06/04/2009
    64398/01 Samoylov, judgment of 02/10/2008, final on 06/04/2009
    65859/01 Sheydayev, judgment of 07/12/2006, final on 23/05/2007
    These cases concern torture or inhumain and degrading treatment inflicted on the applicants in 1998-2001 while in police custody with a view to extracting confessions that they had committed criminal offences and the lack of effective investigations in this respect (substantial and procedural violations of Article 3).
    The Kovalev case concerns a violation of the applicant’s right to a fair trial in civil proceedings in 2000 related to his allegations of torture while in custody on account of the domestic courts’ refusal to order his attendance (violation of Article 6§1).
    The Mikheyev case also concerns the lack of an effective remedy, including a claim of compensation (violation of Article 13).
    Individual measures:
    1) Mikheyev case:
    Punishment of those responsible: The decision of the Leninskiy District Court of Nizhniy Novgorod was upheld by the Criminal Chamber of the Nizhniy Novgorod Regional Court on 30/11/2005 and became final on 27/01/2006. The subsequent appeals lodged by the two convicted police officers were rejected by the Supreme Court.
    The Deputy Public prosecutor of the Nizhniy Novgorod Region, who was allegedly involved in the events at issue (§ 68 of the judgment), was discharged on 1/04/2002 and died on 20/04/2002.
    Possible compensation at domestic level: It would appear from the judgment that on 19/12/2001 the applicant lodged a civil claim with the domestic courts seeking compensation for different damages sustained. On 23/10/2002 these proceedings were suspended upon request of the applicant’s representative.
    On 26/01/2006 the European Court awarded just satisfaction in respect of pecuniary and non-pecuniary damage sustained by the applicant in relation to the violations found. The European Court considered that the fact that the applicant may still receive an award in respect of pecuniary damage through domestic legal proceedings did not deprive him of his right to claim compensation under Article 41 of the Convention. The applicant in particular claimed compensation for future medical expenses and loss of income. When making its own assessment of the amount of just satisfaction with regard to pecuniary losses, the European Court took into account the seriousness of the applicant’s condition, the need for specialised and continuous medical treatment and his complete inability to work in the future (§162 of the judgment).
    On 7/11/2006 the first-instance court rejected the applicant’s claim for compensation as unsubstantiated on the ground that the applicant had already been compensated by the European Court in the amount higher than that provided by the Russian legislation. The applicant claimed compensation for continuous medical treatment, loss of earnings, payment of home nurse, purchase of medicines and non-pecuniary damage. He also referred to the fact that his living conditions were not appropriate for a disabled person, there being in particular no access ramps or lifting appliances installed, making it difficult for him to leave his apartment. He also referred to the risk that his health might deteriorate.
    On 26/12/2006 the cassation court confirmed the first-instance court judgment.
    • Applicant’s position: In his submissions of 13/10/2006 and of 18/08/2008, the applicant indicated that the amounts granted by the European Court constituted a fine imposed on the Russian Federation and a one-time payment. Consequently he is still entitled to receive compensation under the Russian law.
    Russian authorities’ comments: In response to the issues raised by the applicant in his submissions, the Russian authorities referred to the aforementioned findings of the domestic courts rejecting the applicant’s claim.
    Clarification is awaited as to whether and in what circumstances the applicant may seek additional assistance if his health further aggravates.

    2) Sheydayev, Akulinin and Babich, Belousov, Maslova and Nalbandov, Nadrosov, Nikitin Oleg, Samoylov and Kovalev cases: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants in relation to the violations found.
    Information would be useful as to whether any action has been taken by the authorities following the applicants’ allegations of torture.
    General measures: The issues of:
    - prohibition of torture,
    - safeguards in police custody;
    - use of confessions in criminal proceedings;
    - the effectiveness of investigations into alleged abuses;
    - the role of domestic courts in combating ill-treatment;
    - ensuring compensation of victims
    are now mainly being examined in the context of the Khashiyev group of cases (57942/00 1072nd meeting, December 2009), in particular in the light of the Memorandum CM/Inf/DH(2008)33. This Memorandum analyses the current legal and regulatory framework and identifies outstanding measures to combat ill-treatment and impunity, and securing compensation of victims. In this context a submission by an Interregional NGO “Committee against Torture” in August 2008 was taken into account.
    The question of what general measures will continue to be addressed within the Mikheyev group of cases is currently under consideration in co-operation with the Russian authorities. Such measures could include awareness-raising and training, in particular the use of modern investigation methods and techniques.
    The judgments of the European Court have been published in Russian and widely disseminated to police, prosecutors and courts.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting in March 2010.

    7188/03 Chember, judgment of 03/07/2008, final on 01/12/2008
    The case concerns the ill-treatment of the applicant during compulsory military service which resulted in long-term damage to his health.
    In March 2001, as punishment for not cleaning the barracks adequately, the applicant was ordered by his commanders to do 350 knee-bends. He collapsed during the exercise and was taken to hospital. Diagnosed with a spinal injury, he can no longer walk properly and in June 2001 was discharged from military service on medical grounds.
    The European Court noted that the applicant's commanders forced him to do precisely the kind of exercise that put great strain on his knees and spine even though they had been aware of his knee problems. Accordingly, the Court found that the treatment inflicted on the applicant was both deliberate and calculated to cause him intense physical suffering amounting to inhuman treatment and concluded that the severity of the punishment could not obviously be accounted for by any requirement of military service or discipline, or be said to have contributed to the specific mission of the armed forces (substantial violation of Article 3).
    The case also concerns the lack of an effective investigation of the applicant’s complaints and the absence of a remedy in civil law. The European Court noted a number of shortcomings of the domestic investigation. The military prosecutor's decision not to prosecute was solely based on the explanations given by the applicant's commanders. It did not refer to any medical examination of the applicant, any questioning of witnesses of the events, including the applicant himself. He was not mentioned in the decision and not granted victim status, and was thus deprived of all procedural rights. Despite these shortcomings, the senior prosecutor refused to re-examine the case on the ground that a civil court had already done so in the framework of civil proceedings initiated by the applicant. However, the European Court noted that the civil court merely endorsed the prosecutor's decision not to prosecute. In these circumstances, the European Court found that the applicant had been caught up in a vicious circle of shifted responsibility in which no domestic authority had reviewed or remedied the shortcomings of the inquiry (procedural violation of Article 3).
    Finally the case concerns the fact that the ineffectiveness of the investigation undermined the outcome of the applicant's civil claim. The European Court noted in this respect a peculiar feature of Russian criminal law system, in that a decision not to bring charges on the ground that no offence had been committed debarred the applicant from suing for damages in a civil court (violation of Article 13).

    Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained.
    It results from the judgment that following the applicant's discharge, on 29/08/2001, he was diagnosed with a second-category disability and became entitled to a civilian disability pension. His attempts to claim a military pension were unsuccessful on the ground that the condition had been diagnosed during military service but not acquired during military service.
    Information provided by the Russian authorities (2/06/2009): On 10/03/2009 the Military Prosecutors’ Office re-opened the investigation upon the complaint of the applicant’s mother, lodged in 2001, on abuse of power by the applicant’s commanders.
    The authorities also provided information on the possibility for the applicant to claim additional compensation in the light of the European Court's findings.
    Bilateral consultations are pending between the authorities and the Secretariat on this issue.
    Information is awaited as to the outcome of the investigation
    General Measures:
    1) Ill-treatment during military service: It results from the judgment that the applicant collapsed following strenuous exercise ordered by his immediate superior Sergeant Ch., with the tacit approval of Lieutenant D., as punishment for his failure to clean the barracks.
    On 2/06/2009 the authorities provided information on the rules governing the application of disciplinary sanctions and punishments of conscripts in the armed forces as well as on how medical care is organised during military service.
    This information is being assessed.
    2) Effectiveness of the investigation: The European Court identified the following shortcomings:
    - the investigation was not sufficiently thorough particularly as soldiers who could have been eye-witnesses to the alleged ill-treatment were not questioned;
    - the applicant could not formally claim victim status, as no criminal proceedings were instituted;
    - no independent review was exercised over the investigator's decision not to prosecute.
    The new Code of Criminal Procedure entered into force in 2002, i.e. after the events at issue. Moreover, as from 7/09/2007 the investigation of offences, which previously fell within the jurisdiction of prosecutors, now falls within the jurisdiction of the Investigating Committee set up with the Prokuratura of the Russian Federation. Prosecutors exercise control over the lawfulness of decisions taken by the investigators, not least decisions not to prosecute.
    On 2/06/2009 the authorities provided information on the rules currently governing the initiation of criminal proceedings. The information submitted is being assessed.
    3) Civil-law remedy: The Court noted in its judgment the peculiar feature of Russian criminal law which made the possibility of lodging a civil claim for damages against the putative tortfeasor conditional on the grounds on which the criminal proceedings were discontinued. According to Article 213§4 and Articles 24§1(1) and 27§1(1) of the Code of Criminal Procedure, a decision to discontinue proceedings on the ground that the alleged offence was not committed (otsutstvie sobytiya prestupleniya) legally bars access to a civil court on the basis of a claim for damages arising out of the same event (§37 and §72 of the judgment).
    It is noted that in the framework of the supervision of the execution of the Khashiyev group of cases (Section 4.3), the Russian authorities provided examples of domestic courts' case-law on the compensation of victims even in the absence of the results of a criminal investigation or in case of the discontinuation of criminal proceedings for lack of corpus delicti (see CM/Inf/DH(2008)33 Addendum, §§ 25-27).
    However, it remains to be determined, in particular in the absence of a Decision of the Plenum of the Supreme Court of the Russian Federation on the application of the relevant provisions, whether these examples may be considered as showing the existence of a sufficiently established and consistent case-law as required by the Convention.
    Clarification is still awaited on the current state of the domestic courts' case-law on the compensation of victims in cases in which criminal proceedings were discontinued according to Article 213§4(1) and Articles 24§1 and 27§1(1)). Examples of judicial practice would be particularly welcomed.
    4) Publication and dissemination: The European Court's judgment together with a circular letter was sent to all relevant authorities, in particular the Prosecutor General's Office, the Supreme Court of the Russian Federation, Ministry of Interior of the Russian Federation, Ministry of Defence of the Russian Federation and to the Investigating Committee set up with the Prokuratura of the Russian Federation to take measures aimed at elimination of the violations found and prevention of further similar violations.
    The judgment was also sent for information to the Constitutional Court of the Russian Federation and the Representative of the President of the Russian Federation in the South Federal District.

    The judgement was further disseminated to all courts, prosecutors, investigators and to the relevant departments of the Ministry of Defence together with circular letters and appropriate instructions.

    The Deputies decided to resume the examination of this item at the latest at their DH meeting in March 2010, in the light of further information to be provided on individual and general measures.

    - Cases concerning unlawful detention, excessive length and insufficient grounds
    CM/Inf/DH(2007)433
    46082/99 Klyakhin, judgment of 30/11/05, final on 06/06/05
    4026/03 Bakhitov, judgment of 04/12/2008, final on 04/03/2009
    21153/02 Bednov, judgment of 01/06/2006, final on 01/09/2006
    72967/01 Belevitskiy, judgment of 01/03/2007, final on 01/06/2007
    22053/02 Belov, judgment of 03/07/2008, final on 03/10/2008
    1603/02 Brovchenko, judgment of 18/12/2008, final on 18/03/2009
    11886/05 Dolgova, judgment of 02/03/2006, final on 03/07/2006
    31008/02 Fedorov and Fedorova, judgment of 13/10/2005, final on 13/01/2006
    26386/02 Fursenko, judgment of 24/04/2008, final on 24/07/2008
    16595/02 Golovkin, judgment of 03/04/2008, final on 29/09/2008
    42940/06 Govorushko, judgment of 25/10/2007, final on 25/01/2008
    67542/01 Gusev, judgment of 15/05/2008, final on 15/08/2008
    70276/01 Gusinskiy, judgment of 19/05/2004, final on 10/11/2004
    27193/02 Ignatov, judgment of 24/05/2007, final on 24/08/2007
    59696/00 Khudobin, judgment of 26/10/2006, final on 26/01/2007
    6847/02 Khudoyorov, judgment of 08/11/2005, final on 12/04/2006
    19126/02 Komarova, judgment of 02/11/2006, final on 02/02/2007
    75039/01 Korchuganova, judgment of 08/06/2006, final on 08/09/2006
    38971/06 Korshunov, judgment of 25/10/2007, final on 25/01/2008
    3023/03 Krivonosov, judgment of 27/11/2008, final on 27/02/2009
    4493/04 Lebedev, judgment of 25/10/2007, final on 02/06/2008
    3223/07 Makarov Aleksey, judgment of 12/06/2008, final on 12/09/2008
    7064/05 Mamedova, judgment of 01/06/2006, final on 23/10/2006
    18123/04 Matskus, judgment of 21/02/2008, final on 21/05/2008
    24552/02 Melnikova, judgment of 21/06/2007, final on 30/01/2008
    36911/02 Mishketkul and others, judgment of 24/05/2007, final on 12/11/2007
    55669/00 Nakhmanovitch, arrêt du 02/03/2006, final on 02/06/2006
    45100/98 Panchenko, judgment of 08/02/2005, final on 08/05/2005
    30209/04 Ponushkov, judgment of 06/11/2008, final on 06/02/2009
    32327/06 Popkov, judgment of 15/05/2008, final on 29/09/2008
    28957/02 Pshevecherskiy, judgment of 24/05/2007, final on 24/08/2007
    54071/00 Rokhlina, judgment of 07/04/2005, final on 12/10/2005
    64140/00 Rozhkov, judgment of 19/07/2007, final on 12/11/2007
    7649/02 Shcheglyuk, judgment of 14/12/2006, final on 14/03/2007
    65734/01 Shukhardin, judgment of 28/06/2007, final on 28/09/2007
    4459/03 Sidorenko, judgment of 08/03/2007, final on 08/06/2007
    3947/03 Silin, judgment of 24/04/2008, final on 24/07/2008
    46133/99+ Smirnova, judgment of 24/07/2003, final on 24/10/2003
    2708/02 Solovyev Vladimir, judgment of 24/05/2007, final on 12/11/2007
    942/02 Zementova, judgment of 27/09/2007, final on 27/12/2007

    7178/03 Dedovskiy and others, judgment of 15/05/2008, final on 15/08/2008
    The case concerns various violations related to torture inflicted on the applicants while serving their prison sentences, due to unlawful and disproportionate use of rubber truncheons against them by the “Varyag squad”, a special unit created to maintain order in detention facilities.
    In April 2001 the squad was called into the Chepets correctional colony, allegedly to intimidate detainees who were being encouraged to be subversive by the leader of a criminal gang. The squad had instructions to maintain order by carrying out body searches of detainees and searches of all quarters within the colony. The whole squad, except for its commander, wore balaclava helmets and camouflage uniforms with no indication of their rank and were armed with rubber truncheons.
    The European Court found that the squad’s use of truncheons had had no basis in law. The Penitentiary Institutions Act permitted rubber truncheons to be used in certain situations such as curtailing assaults, repressing mass disorder and apprehending those who persistently disobeyed or resisted officers. However, there was no evidence that the applicants had attacked officers or other detainees, the beatings had been individual, rather than collective, in nature and, even though some applicants had allegedly disobeyed or resisted officers’ orders, no attempt had been made to arrest them.
    The European Court further found that the actions by the unit officers were grossly disproportionate to the applicants’ imputed transgressions and manifestly inconsistent with the goals they sought to achieve. The Court therefore concluded that the squad had resorted to deliberate and gratuitous violence and had intended to arouse in the applicants feelings of fear and humiliation, which would break their physical or moral resistance. The purpose of that treatment had been to debase the applicants and drive them into submission. The European Court found that the truncheon blows must have caused them intense mental and physical suffering amounting to torture (substantive violation of Article 3).
    The European Court also found that the investigation carried out into the applicants’ allegations of ill-treatment had not been thorough, adequate or efficient. The Court criticised in particular the circumstances in which the criminal proceedings had been discontinued. It first noted that no evidence was produced to show that the applicants had been medically examined following those events. It then considered that, by allowing the squad to cover their faces and not to wear any distinctive signs on their uniform, the Russian authorities had knowingly made it impossible to have them identified by their victims. It also noted that the prosecutor’s decisions to discontinue the proceedings were not served on the applicants. Finally, the European Court pointed out the contradictory nature of the grounds used to justify the acquittal of the commander of the squad (procedural violation of Article 3).
    Finally, after the criminal proceedings had been discontinued, any other remedy available to the applicants, including a claim for damages, had limited chances of success. The European Court therefore concluded that the applicants had not disposed of an effective remedy under domestic law to claim compensation for the ill-treatment they had suffered (violation of Article 13).
    The European Court also found a violation of the respondent state's obligation to furnish all necessary facilities to the Court in establishing the facts on account of the authorities’ failure to provide a copy of the report on the inquiry carried out by a representative of the Prosecutor General’s Office without any justification (violation of Article 38§1a).
    Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.
    Information is awaited on measures possibly taken or planned to remedy the shortcomings of the investigation and previous criminal proceedings identified by the European Court in its judgment, and in particular on the re-opening of proceedings.
    General measures: It appears that this judgment requires important general measures to prevent new, similar violations.
    1) Material violation of Article 3 – use of special means of constraint: The relevant provisions of the Penitentiary Institutions Act have not been challenged by the European Court. However, it results from the judgment that these provisions were not complied with by the special unit officers in this particular case.
    Information is thus awaited on the measures taken or planned to ensure that the force and special coercive means used are strictly proportionate to the aim pursued. Information is also awaited on the existence of any regulatory framework governing the planning and conduct of such operations, the training of the members of special units, etc.

    2) Procedural violation of Article 3 – investigation of alleged abuses:
    Information is awaited on measures taken or planned to ensure prompt and comprehensive medical examination of inmates in similar situations.
    Information is awaited on whether there is an obligation to report each occurrence of the use of rubber truncheons, i.e. on the nature of the reporting procedure, the existence of a monitoring system for the use of special means of constraint, the person or body responsible for such monitoring, whether a written report is drawn up as a result of such monitoring/verification, the circumstances in which the results of such monitoring give rise to a criminal investigation.
    Information is also awaited as to whether commanding (superior) officers may be held responsible if their subordinates resort, or have resorted, to unlawful use of force, and if they have failed to take all measures in their power to prevent, suppress or report such use. And if so, information would be useful on how their responsibility is engaged, i.e. the authority in charge of the prosecution, etc.
    3) Violation of Article 13 – existence of an effective remedy: This aspect presents similarities to the Khashiyev group of cases (57942/00, 1072nd meeting, December 2009).
    4) Violation of Article 38 § 1 a) – Obligation to co-operate with the European Court: This aspect also presents similarities to the Khashiyev group of cases, above-mentioned. See in particular the Memorandum prepared by the Secretariat CM/Inf/DH(2008)33, §§ 131-137.
    5) Publication and dissemination:
    Information is awaited on the publication of the European Court’s judgment and its dissemination to all authorities concerned, in particular to the relevant departments of the Federal service for execution of sentences, to prosecutors, to members of the Investigating Committee and to all courts. In view of the seriousness of the violations found, it appears appropriate that such dissemination is accompanied by appropriate circular letters and/or instructions drawing the attention of the authorities concerned to their obligations under the Convention.

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

    44009/05 Shtukaturov, judgment of 27/03/2008, final on 27/06/200834

    1509/02 Tatishvili, judgment of 22/02/2007, final on 09/07/2007
    The case concerns the unjustified interference with the right to liberty of movement of the applicant, a “former USSR national”, as the Passports Department at Filevsky Park Police Station in Moscow unlawfully refused to process her application for registration of her place of residence (violation of Article 2 of Protocol No. 4).
    The European Court also found that the manifestly deficient reasoning of the district court and its subsequent approval by the City court failed to fulfil the requirements of a fair trial (violation of Article 6§1).
    Individual measures: The European Court awarded to the applicant just satisfaction in respect of both pecuniary and non-pecuniary damage sustained. The European Court also considered that the applicant, being a “former USSR national”, was lawfully present in Russia (§43 of the judgment).
    However it appears from the European Court's judgment that the absence of residence registration prevented the applicant from exercising certain fundamental social rights, such as access to medical assistance, social security, old-age pension, the right to possess property, to marry, etc.(§44 of the judgment).
    Information provided by the Russian authorities: On 11/09/2007 the applicant was registered at her place of residence in Moscow. On an unspecified date she was also granted the citizenship of the Russian Federation on the basis of Article 13§1 of the Law of 28/11/1991 No. 1948-1 on the citizenship of the Russian Federation.
    Assessment: no further individual measure thus appears necessary.
    General measures:
    1) Violation of Article 2 of Protocol No. 4: The European Court noted that the guidelines given by the Constitutional Court on implementing of the Regulations for registering residence, although binding, were disregarded by the authorities in this particular case (§ 53 of the judgment).

    The Russian authorities indicated that the Law of 25/06/1993 on the right of Russian citizens to liberty of movement and freedom to choose the place of temporary and permanent residence within the Russian Federation and its implementing Regulations, adopted by the government on 17/07/1995, were currently subject to amendments. A draft law amending the Law of 25/06/1993 was made available to the Secretariat, which is assessing its compliance with the Convention’s requirements.
    Information is awaited on the progress of the draft law’s adoption.
    In addition, the Russian authorities have indicated that, in order to improve the registration procedures, the Federal Migration Service issued on 20/09/2007 an Order No. 208 approving an administrative Regulation on the services of the Federal Migration Service concerning the registration of Russian citizens at their place of residence.
    A copy of this document would be useful.
    2) Violation of Article 6§1: On 9/10/2007, the judgment of the European Court was sent out to all judges by a circular letter from the Deputy of the President of the Supreme Court of the Russian Federation. It was also discussed during a working meeting with the judges of the Civil, Criminal and Military Chambers of the Supreme Court.
    3) Publication and dissemination of the European Court judgment: The Russian authorities have indicated that on 31/10/2007 the judgment of the European Court was sent out to territorial departments of Federal Migration Service by a circular letter from the Director of the Law department of Federal Migration Service.
    The Russian authorities further indicated that on 28/02/2008, the judgment was sent out to all territorial departments of Ministry of Home Affairs and to Director of Federal Migration Service by a circular letter from the Deputy of the Minister of Home Affairs of the Russian Federation.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010, in the light of further information to be provided on general measures.

    15339/02+ Budayeva and others, judgment of 20/03/2008, final on 29/09/2008
    The case concerns the Russian authorities' failure to protect the applicants' lives against the mudslide which devastated the town of Tyrnauz in July 2000, causing several deaths including that of the first applicant’s husband, and the lack of an adequate judicial response in this respect (violations of Article 2).
    In the year preceding the mudslide, the authorities received a number of warnings from a specialised surveillance agency that should have made them aware of the increasing risks. Despite these warnings, the authorities failed to maintain the mud-protection engineering structures (the dam and the collector), to envisage any alternative land-planning policies in the area or to warn the public on the day of the disaster.
    After this environmental disaster, no adequate judicial enquiry was carried out to establish the authorities’ responsibility. The inquest had been limited to the immediate causes of the deaths and had not examined questions of safety compliance or the authorities’ responsibility. Nor had those questions been the subject of any criminal, administrative or technical enquiry. In particular, no action had ever been taken to verify the numerous allegations concerning the inadequate maintenance of the mud-defence infrastructure or the authorities’ failure to set up a warning system.
    The applicants’ claims for damages were effectively dismissed by the Russian courts for failing to demonstrate to what extent the State’s negligence had caused damage exceeding what had been inevitable in a natural disaster. That question could, however, only have been answered by a complex expert investigation and the establishment of facts to which only the authorities had access. The applicants had therefore been required to provide proof which was beyond their reach. In any event, the domestic courts had not made full use of their powers to establish the circumstances of the accident. In particular, they had not called witnesses or sought expert opinions. The courts’ reluctance to establish the facts was not justified in view of the evidence produced by the applicants, especially as it included reports which suggested that the applicants’ concerns were shared by certain officials.
    Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained.

    General measures:
    1) Substantive aspect of Article 2: The European Court found that the authorities took no measures at all up to the day of the disaster to comply with their positive obligation to protect life even though they had been aware of the risks run by the population in a region prone to mudslides every year since 1937.
    • Information provided by the Russian authorities (1059th meeting, June 2009): On 6/01/2006 the government of the Russian Federation adopted a Federal Programme aimed at lowering the risks and reducing the consequences of emergencies of natural and industrial origins covering the period until the end of 2010. To implement it, a regional programme for the Republic of Kabardino-Balkariya (RKB), was adopted by the Parliament of the RKB. The regional programme focuses not least on setting up an adequate legislative and administrative framework, improving monitoring and forecasting systems and developing the warning infrastructure.
    • This information is being assessed.
    2) Lack of an appropriate judicial response:
    Clarification is still awaited as to measures taken or envisaged to ensure effective investigation capable of securing full accountability of state agents, having regard to the Court's finding concerning the ineffectiveness of the investigation carried out at the domestic level following the mudslide.
    3) Publication and dissemination: The European Court’s judgment was published in English in the Consultant Plus database, a summary of the judgment was published in Russian in the Bulletin of the European Court of Human Rights. A copy of the judgment was sent to the President of the Supreme Court and sent out to lower courts. It is planned to discuss the judgment at the forthcoming meetings of the Commission on Disaster Prevention and Relief of RKB and the regional branch of the Ministry of Disaster Relief.

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

    71362/01 Smirnov, judgment of 07/06/2007, final on 12/11/2007
    The case concerns violations of the rights of the applicant, an advocate, committed in the context of a search of his home in March 2000 and the subsequent seizure of his computer by the investigating authorities in criminal proceedings against clients of his.
    The European Court found that the search had been carried out without sufficient and relevant grounds or safeguards against interference with professional secrecy, the excessively broad terms of the warrant giving the police total freedom to determine what was seized. The authorities’ interference with the applicant’s right to respect for his private and family life was therefore not “necessary in a democratic society” (violation of Article 8).
    The European Court also observed that the central unit of the applicant’s computer is still retained by the Russian authorities, i.e.; more than over six years after the events. It further noted that retaining the computer not only caused personal inconvenience to the applicant but also hindered his professional activities and even had repercussions for the administration of justice. The Court therefore found that Russian authorities failed to strike a “fair balance” between the demands of general interest and the requirement to protect the applicant’s peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1). The Court further found that the applicant did not have an effective remedy to challenge the retention of his possessions (violation of Article 13 taken together with Article 1 of Protocol No. 1).
    Individual measures: The European Court granted no just satisfaction to the applicant since he failed to submit a claim in this respect within the specified time-limit.
    Information provided by the Russian authorities: The Russian authorities indicated that according to the information submitted by the Supreme Court of the Russian Federation, no claim has been lodged by the applicant with the domestic courts after the judgment of the European Court.
    Assessment: It would appear that when the European Court delivered its judgment, the applicant’s computer was still retained by the domestic authorities (§58 of the judgment). It would also appear that the applicant’s civil claim for damages had been pending before the domestic courts (§25 of the judgment).
    Information is thus awaited on the fate of the applicant’s computer which contained the data subject to professional secrecy, and especially on whether these data have been returned to him or destroyed Information is also awaited on the outcome of compensation proceedings which were pending when the European Court delivered its judgment.

    General measures:
    1) Violations of Article 8 and of Article 1 of Protocol N°1:
    Information provided by the Russian authorities: The new Code of Criminal Procedure (CPP) entered into force in 2002, i.e. after the events described in the judgment. The new Code does not however contain any specific provisions concerning searches in lawyers’ premises. This issue is dealt with by the Advocates Act No. 63 of 31/05/2002. Its Section 8§3 provides that residential and professional premises of an advocate may only be searched on the basis of a judicial decision. The information, objects and documents obtained during the search may be used in evidence only if they are not covered by the attorney-client privilege in a given criminal case.
    Subsequently the Constitutional Court (Ruling No 439-O of 8/11/2005) specified that such judicial order shall mention the concrete object of the search and reasons for authorising this course of action in order to avoid that a search leads to the disclosure of documents concerning other clients.
    Assessment:
    a) scope and motivation of the search warrant: Although search and seizure in lawyers’ premises is now possible only on the basis of a prior judicial authorisation, it would appear that this measure does not entirely remedy the shortcomings identified by the Court. In its Aleksanyan judgment (of 22/12/2008, final on 5/06/2009, Section 2.1), the Court found a similar violation in respect of the judicial search warrant issued in April 2006 particularly due to its vagueness, as it did not specify what items and documents were expected to be found in the applicant’s office or how they would be relevant to the investigation.
    Information is thus awaited on the measures taken or planned to ensure domestic courts’ practice compliance with the Convention’s requirements.
    b) safeguards against interference with professional secrecy: As to the manner in which the search was conducted, the European Court found that “there was no safeguard in place against interference with the professional secrecy, such as for example, a prohibition on removing documents covered by lawyer-client privilege or supervision of the search by an independent observer capable of identifying, independently from the investigation team, which documents were covered by legal professional privilege” (Smirnov judgment, §48).
    As to the quality of this observer, the Court noted that “the presence of two attesting witnesses obviously could not be considered a sufficient safeguard, given that they were laymen who had no legal qualification and were unable to detect privileged materials” (Koleshnichenko judgment of 9/04/2009, final on 09/07/2009).
    Information is thus awaited on the measures taken or envisaged to ensure that Russian law governing search and seizure conducted in respect of lawyers meets the Convention’s requirements.
    2) Violation of Article 13:
    Information provided by the Russian authorities: The Russian authorities indicated that pending the investigation, the decision to retain the seized objects may be subject to judicial review according to Article 125 of CCP. If the case was transmitted to the trial court, the decision to retain the seized objects may be challenged together with the decision delivered on the merits.
    More details would be useful on the powers of the court examining decisions on retention of seized objects. Relevant examples of the domestic courts’ case-law would be particularly welcomed.
    3) Publication and dissemination: The judgment of the European Court was sent to the President of the Supreme Court, to the General Prosecutor's office, to the Constitutional Court and to the Representative of the President of the Russian Federation in the Severo-Zapadniy federal district. On 25/03/2008, the judgment was sent to all judges, including those of the Saint-Petersburg City Court, together with a circular letter from the Deputy of the President of the Supreme Court of the Russian Federation. It was also discussed during a working meeting with the judges of the Civil, Criminal and Military Chambers of the Supreme Court.
    The judgment was translated into Russian and published on the web-site of the Ministry of Justice www.minjust.ru.

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

    14810/02 Ryakib Biryukov, judgment of 17/01/2008, final on 07/07/2008
    The case concerns a violation of the applicant’s right to fair trial on account of the lack of access by the public to the full text of judicial decisions delivered by national courts.
    According to Article 203 of the Code of Civil Procedure of 1964, in force at the material time, only the participants to the proceedings and their representatives are entitled to become acquainted with a reasoned judgment to be prepared after the public pronouncement of its operative part. An obligation to serve a copy of a judgment is also limited to the parties and other participants to the proceedings (Article 213). As regards depositing court judgments with a court registry, the regulations in force at the material time restricted public access to the texts of judgments. Such access was normally given only to the parties and other participants to the proceedings
    In these circumstances, the European Court found that the inaccessibility to the public of the domestic courts’ reasons justifying the rejection of the applicant’s claims impaired his right to a fair trial (violation of Article 6§1).
    Individual measures: The European Court found that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant.
    • Information provided by the Russian authorities: The applicant appears to have made no request for re-opening of the proceedings following the European Court’s judgment.
    General measures:
    1) Legislative measures: The new Code of Civil Procedure was adopted in 2002. In addition, on 22/12/2008 the Parliament adopted Federal Law No. 262-FZ “On ensuring access to information on the functioning of courts in the Russian Federation”. According to this Law, courts’ decisions should be made public through the courts’ Internet website. The Law also provides the possibility to request and to obtain information directly from court registries within 30 days.
    Assessment: The adoption of this Law is welcomed. It appears that its effective implementation will very much depend on the resources made available to the courts in order to organise their websites and deal with the requests.
    • Taking into account the fact that the law will enter into force on 1/07/2010, information would be useful on interim measures adopted.
    2) Publication and dissemination: The European Court’s judgment was sent out to the President of the Supreme Court of the Russian Federation, to the President of the Ulyanovsk Regional Court, to the President of the Constitutional Court of the Russian Federation, to the President of the Supreme Commercial (Arbitration) Court of the Russian Federation, to the Prosecutor General and the Representative of the President of the Russian Federation in Privolzhskiy federal district.
    On 17/11/2008, the judgment was sent out by letter of the Deputy President of the Supreme Court of the Russian Federation to all courts.

    The Deputies decided to resume consideration of this item at their DH meeting in March 2010, in the light of information to be provided on general measures.

      - Cases mainly concerning quashing of final judgments on the basis of newly discovered circumstances35

    69529/01 Pravednaya, judgment of 18/11/2004, final on 30/03/2005
    69524/01 Bulgakova, judgment of 18/01/2007, final on 18/04/2007 and of 10/06/2008 – Friendly settlement
    69533/01 Kondrashina, judgment of 19/07/2007, final on 30/01/2008
    73294/01 Kumkin and others, judgment of 05/07/2007, final on 30/01/2008
    67579/01 Kuznetsova, judgment of 07/06/2007, final on 12/11/2007
    944/02 Levochkina, judgment of 05/07/2007, final on 31/03/2008
    76676/01 Maltseva, judgment of 19/06/2008, final on 19/09/2008
    852/02 Smirnitskaya and others, judgment of 05/07/2007, final on 31/03/2008
    11589/04 Tetsen, judgment of 03/04/2008, final on 03/07/2008
    25580/02 Vedernikova, judgment of 12/07/2007, final on 31/03/2008
    842/02 Volkova and Basova, judgment of 05/07/2007, final on 31/03/2008
    77478/01 Yerogova, judgment of 19/06/2008, final on 19/09/2008
    560/02 Zhukov Nikolay, judgment of 05/07/2007, final on 31/03/2008

    65582/01 Radchikov, judgment of 24/05/2007, final on 12/11/2007
    The case concerns a violation of the applicant’s right to a fair trial in that, in December 2000, the Supreme Court quashed his acquittal and remitted the case for a fresh investigation. This decision was delivered upon an application for supervisory review (nadzor) lodged by the Deputy Prosecutor General under the Code of Criminal Procedure in force at the material time. The European Court noted that in the absence of a fundamental judicial error, the use of the nadzor procedure by the prosecution authorities to obtain an additional investigation so as to correct shortcomings or failures of the previous investigation constituted an abuse of process. Accordingly the European Court found that the quashing of the applicant’s acquittal had been used to obtain a rehearing and fresh determination of the case (violation of Article 6§1).
    Individual measures: In April 2001 the prosecution discontinued the case against the applicant following his death. The European Court awarded just satisfaction in respect of non-pecuniary damage to the applicant’s next-of-kin.
    Submissions by the applicant's representative (11/07/2008): On 11/03/2008 the President of the Supreme Court of the Russian Federation submitted to the Supreme Court a request for the re-opening of the proceedings in the applicant’s case on the basis of newly discovered circumstances. On 11/03/2008 the Supreme Court re-opened the criminal case and upheld the decision quashing the applicant’s acquittal.
    • This information is being assessed.
    General measures:
    1) Measures taken: The new Code of Criminal Procedure came into force on 1/07/2002. Under the new Code, the appeal (Article 378 of the Code) and supervisory review courts (Article 410) have the power to remit cases to lower instance courts for fresh examination but no power to remit the case to the prosecutor for an additional investigation.
    Besides, under Article 405 of the Code, the application of supervisory review was limited to those cases in which it would not involve changes detrimental to the convicted person. Acquittals and decisions to discontinue proceedings may not be subject to supervisory review.
    Assessment: It seems that at that time the risk of new similar violations of the Convention was prevented by the impossibility to change the defendant’s situation to his detrimental.
    2) Decision of the Constitutional Court invalidating Article 405 of the Code of Criminal procedure: By ruling No. 5-P of 11/05/2005 the Constitutional Court of the Russian Federation quashed Article 405 of the Code insofar as this provision limited the judicial review of decisions, including judgments which had become final, to cases not involving changes detrimental to the defendant and thus excluded the possibility of correcting fundamental defects in the previous proceedings, which could affect the outcome of the case. The court declared that the provision was in breach of both the Constitution of the Russian Federation, Article 6 of the Convention and Article 4 of Protocol No. 7, and struck it down.
    3) Amendments of Article 405 of the Code of Criminal Procedure: The law to amend Article 405 of the CCP entered into force on 14/03/2009.
    • The compliance of Article 405 of the CCP with the Convention’s requirements is being assessed.
    4) Publication and dissemination: The judgment of the European Court was sent out by the Supreme Court to all regional courts. The judgment was also sent to the Office of the Prosecutor General. The judgment was published in the Bulletin of the European Court, No. 10, 2007.

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010 in the light of an assessment by the Secretariat of the information provided.

    - 1 case against Slovenia

    43393/98 Matko, judgment of 02/11/2006, final on 02/02/200736

    - 1 case against the Slovak Republic

    7510/04 Kontrová, judgment of 31/05/2007, final on 24/09/200737

    - 29 cases against “the former Yugoslav Republic of Macedonia"

    10649/03 Fetaovski, judgment of 19/06/2008, final on 19/09/2008
    The case concerns the violation of the applicant's right of access to a court in that his appeal was declared inadmissible because the domestic courts wrongly held that he had failed to submit his appeal within the time-limit, which expired on 17/03/2001. In fact, the applicant produced before the domestic courts a copy of his appeal, which had been date-stamped as having been received by the first instance court on 15/03/2001. However, the court's register of incoming applications and the copy of the appeal indicated 23/03/2001 as the relevant date (violation of Article 6§1).
    The European Court noted that the failure by the domestic courts to accept the appeal of 15/03/2001 or, in the alternative, to provide a tenable reason for not accepting it, amounted to a violation of the applicant’s right of access to a court (§41).
    The case also concerns the excessive length of proceedings before civil courts, which lasted for ten years (violation of Article 6§1). In this connection, the European Court noted that the case was reconsidered on three occasions (§56).
    Individual measures: The European Court awarded no just satisfaction as the applicant failed to submit his claims in due time (§63). Reopening of proceedings may be requested in accordance with Article 400 of the Civil Procedure Law. The authorities informed that the applicant requested the reopening of the proceedings in his case.
    ·Assessment: No individual measure appears necessary.
    General measures:
    1) Access to a court: The European Court’s judgment has been translated and published on the web site of the Ministry of Justice (www.pravda.gov.mk). On 05/08/2008, the Government Agent forwarded the judgment with a special note to the first-instance court involved in the present case, all courts of appeal, the Supreme Court, Kumanovo Office of the Public Prosecutor and the Prosecutor General. The judgment has been studied in depth as a part of training for judges and public prosecutors organised by the Academy for the Training of Judges and Public Prosecutors. This academy also distributed an electronic version of the judgment to judges attending various trainings there.
    Assessment: No other general measure appears necessary.
    2) Excessive length of civil proceedings: See Atanasović group of cases (Section 4.2).

    The Deputies decided to resume consideration of this item at the latest at their DH meeting in March 2010 in the light of information to be provided on the outstanding general measures, namely those concerning the excessive length of civil proceedings.

    - Case of length of criminal proceedings
    26541/02 Nankov, judgment of 29/11/2007, final on 02/06/2008
    This case concerns the excessive length of criminal proceedings against the applicant between 1992 and 2002 (violation of Article 6§1). Significant delays were attributed to three remittals of the case for re-examination and a frequent change of trial judges.
    The European Court stated that “since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system” (§48 of the judgment). The European Court also pointed out that the frequent change of the trial judges also contributed to the length of proceedings.
    Individual measures: The criminal proceedings against the applicant ended in 2002 (§ 44 of the judgment).
    Assessment: No further measure is required.
    General measures:
    • Information provided by the authorities of the respondent state (29/06/2009): Draft amendments to the Code of Criminal Procedure Code (CCP), prepared to eliminate repetitive remittals of cases for re-examination within one set of proceedings, are expected to be adopted until the end of 2009. In particular, Article 443 of the CCP would be amended to provide that courts of appeal decide on the merits when examining a case for the second time on appeal within one set of proceedings.
    Assessment: Note is taken of the measures taken so far by the authorities. It appears that the proposed amendments to the CCP may prevent similar violations by eliminating repetitive remittals of cases for re-examination within one set of proceedings. However, it is noted that no information has been submitted concerning the rules governing the change of trial judges in criminal proceedings, which also contributed to the excessive length of criminal proceedings in this case.

    Information is thus awaited on further progress in amending the law to eliminate repetitive remittals of cases for re-examination within one set of criminal proceedings.
    Information is also awaited on the legislation governing the change of trial judges as well as on any measures taken or envisaged to improve it.
    • Publication and dissemination: The European Court’s judgment was translated and published on the website of the Ministry of Justice (www.pravda.gov.mk). It was forwarded to all domestic courts with an explanatory note.

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

      - Cases mainly concerning the length of the enforcement proceedings

    6906/03 Jankulovski, judgment of 03/07/2008, final on 03/10/2008
    13904/02 Nikolov Krsto, judgment of 23/10/2008, final on 23/01/2009
    21839/03 Pecevi, judgment of 06/11/2008, rectified on 16/12/2008, final on 16/03/2009
    12582/03 Savov and others, judgment of 25/09/2008, final on 06/04/2009
    These cases concern violations of the applicants’ right to a fair trial as a result of the authorities’ failure to carry out effective enforcement proceedings pending from as early as 1989 (violations of Article 6§1).
    The case of Jankulovski also concerns the violation of the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).
    The case of Krsto Nikolov also concerns the lack of an efficient remedy in respect of excessive length of enforcement proceedings (violation of Article 13).
    The European Court also noted that the significant delays in enforcement proceedings resulted primarily from the long intervals between the scheduled hearings (§25 in Krsto Nikolov) as well as from long expert examinations and lack of requisite vigilance when conducting enforcement proceedings (§49 and §53 in Savov).
    Individual measures: The enforcement proceedings have been closed in the cases of Pecevi (§28) and Krsto Nikolov (information provided by the authorities of 09/04/2009). The other enforcement proceedings are still pending.
    • Information provided by the authorities of the respondent state (29/06/2009): It was expected that a draft law on the transfer of competence for enforcement to private bailiffs would be adopted by the end of July 2009 at the latest. Pursuant to this draft law, the applicants would have an option to request the transfer of their enforcement cases from ordinary courts to private bailiffs until 01/07/2010.
    After that date, the applicants will be under an obligation to withdraw their enforcement cases from the courts and to transfer them to private bailiffs within 6 months
    Assessment: The Secretariat takes note of the measures envisaged by the authorities. However, it appears that the enforcement proceedings are still pending in the Jankulovski and Savov cases. The expected legislative change can by no means dispense the authorities from the obligation to bring the pending enforcement proceedings to a conclusion as soon as possible. This is particularly important having in mind that the enforcement proceedings in the Jankulovski case have been pending since 1996 and that the courts will have to continue dealing with this case until the deadline of 01/01/2011.
    Information is thus awaited on measures taken or envisaged to ensure that the enforcement proceedings still pending are effectively brought to an end.
    General measures: Some twenty similar cases concerning the excessive length of enforcement proceedings are currently pending in respect of the respondent state before the European Court. Similar violations are also examined in a particular context in the Nesevski case (14438/03, 1072nd meeting, December 2009).
    1) Violation of Article 6§1
    • Information provided by the authorities of the respondent state (letters of 15/10/2008 and 29/06/2009):
    a) The new Enforcement Act: It was adopted in 2005 (Official Gazette No. 35/2005, 50/2005) and has been in force since 2006. It provides, inter alia, that:
    (i) final court decisions immediately become enforcement orders which the beneficiaries may submit, outside the judicial system, for enforcement by private bailiffs who are, in their turn, obliged to carry out the decision of the court without delay;
    (ii) legal challenges by debtors against civil court decisions cannot delay enforcement;
    (iii) courts are no longer responsible for the enforcement of their decisions;

    (iv) enforceable, final court decisions and notarised enforcement orders become enforcement documents after the expiry of the time-limit for their voluntary enforcement and may be executed by private bailiffs.
    (v) The law also set up the system of private bailiffs, who are not paid by the courts. They are designated to court districts by the Minister of Justice and enforce court orders. Bailiffs may not hold public office or exercise managerial or supervisory functions in commercial companies or state institutions, nor may they engage in business activities, act as notaries or attorneys or serve in religious communities or groups.
    (vi) Bailiffs must open special accounts which should be used solely to receive proceeds of enforcement operations and to remit them to the beneficiaries. Payments to beneficiaries must be made immediately: i.e. no later than the next working day following enforcement of an order.
    b) Transitional period: The domestic courts will continue to enforce “old” enforcement cases until 2010. However, the private bailiffs will be exclusively responsible for enforcement as from 2011. Preparations for the transfer of “old” enforcement cases from the domestic courts to the private bailiffs are under way (see above under Individual measures).
    c) Statistics: Since the private bailiffs have been introduced in the legal system, the percentage of enforced court decisions has doubled. For instance, only 20% of court decisions were enforced before the private bailiff system was introduced. However, 43,4%, 40% and 47% of decisions were enforced in 2006, 2007 and 2008 respectively. This trend also continued in 2009: 51% of court decisions have been enforced as of 15/03/2009. The average enforcement proceedings now take only a few months.
    Assessment: It appears that the new legislative framework and the introduction of the system of private bailiffs are capable of preventing the excessive length of enforcement proceedings. The statistical data provided by the authorities of the respondent state show a positive trend and significant efforts to accelerate enforcement proceedings. However, it seems necessary further to monitor the envisaged measures concerning the announced transfer of all enforcement cases from the courts to the private bailiffs.
    Information is thus awaited on further developments in respect of the measures envisaged to transfer enforcement to private bailiffs and on further statistics concerning the percentage of enforced court decisions in 2009 and the first half of 2010. In addition, information is awaited on the measures taken to secure police assistance in enforcement proceedings if necessary (see §38 in Jankulovski) and to avoid any protraction in the enforcement proceedings resulting from the excessive length of expert examinations.
    2) Violation of Article 1 of Protocol No. 1: The above measures are also relevant to preventing similar violations under this head.
    3) Violation of Article 13: See Nesevski (1072nd meeting, December 2009.)
    4) Publication and dissemination: The European Court's judgments have been translated and published on the website of the Ministry of Justice (www.pravda.gov.mk). They were sent out with a note on the violations found to all relevant courts and authorities, including to all courts of appeal in the country and to the Supreme Court. The Jankulovski judgment was distributed in electronic version by the Academy for Training of Judges and Public Prosecutors to members of the judiciary. It was also studied in depth during training provided for judges and public prosecutors.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting of September 2010, in the light of information to be provided on individual and general measures.

      - Cases of length of proceedings concerning civil rights and obligations before labour or civil courts and lack of an effective domestic remedy

    13886/02 Atanasovic and others, judgment of 22/12/2005, final on 12/04/2006
    44208/02 Arsov, judgment of 19/10/2006, final on 19/01/2007
    13270/02 Dika, judgment of 31/05/2007, final on 12/11/2007
    16328/03 Dimitrieva, judgment of 06/11//2008, final on 06/04/2009
    26602/02 Dimitrievski, judgment of 18/12/2008, final on 06/04/2009
    14260/03 Gjozev, judgment of 19/06//2008, final on 19/09/2008
    6924/03 Graberska, judgment of 14/06/2007, final on 14/09/2007
    10541/03 Ivanovska, judgment of 15/11/2007, final on 31/03/2008
    44353/02 Kostovska, judgment of 15/06/2006, final on 15/09/2006
    22931/03 Lazarevska, judgment of 05/07/2007, final on 10/12/2007
    38202/02 Lickov, judgment of 28/09/2006, final on 28/12/2006
    22742/02 Manevski, judgment of 19/06/2008, final on 01/12/2008
    22928/03 Markoski, judgment of 02/11/2006, final on 12/02/2007
    44221/02 Mihajloski, judgment of 31/05/2007, final on 31/08/2007
    15056/02 Milošević, judgment of 20/04/06, final on 20/07/06
    26124/02 MZT Learnica, judgment of 30/11/2006, final on 28/02/2007
    14259/03 Parizov, judgment of 07/02/2008, final on 07/05/2008
    41228/02 Rizova, judgment of 06/07/2006, final on 06/10/2006
    14349/03 Sali, judgment of 05/07/2007, final on 05/10/2007
    34215/02 Stojanov, judgment of 31/05/2007, final on 31/08/2007
    14818/02 Stojković, judgment of 08/11/2007, final on 02/06/2008
    29029/03 Velova, judgment of 06/11/2008, final on 06/04/2009
    27866/02 Ziberi, judgment of 05/07/2007, final on 05/10/2007
    These cases concern the excessive length of proceedings concerning civil rights and obligations before labour or civil courts (violations of Article 6§1). The case of Atanasovic and others also concerns the lack of an effective domestic remedy in respect of this violation (violation of Article 13).
    Individual measures:
    • Information provided by the authorities of the respondent state (29/06/2009): Proceedings are still pending in the following cases: Atanasovic, MZT Learnica, Gjozev and Manevski (second set of proceedings).The domestic proceedings have been closed in all other cases.
    Concerning the enforcement proceedings still pending in the Atanasovic case, the authorities expected that a draft law on the transfer of competence for enforcement to private bailiffs would be adopted at latest by the end of July 2009. Pursuant to this draft law, the applicants in the Atanasovic case would have an option to request the transfer of their enforcement case from the court to a private bailiff until 01/07/2010. After that date, the applicants will be under an obligation to withdraw their enforcement case from the court and to transfer it to a private bailiff within 6 months (see also Jankulovski, Section 4.2).
    Assessment: The expected legislative change can by no means dispense the authorities from the obligation to bring the pending enforcement proceedings in the Atanasovic case to a conclusion as soon as possible. This is particularly important having in mind that the civil proceedings in the Atanasovic case were instituted in 1989 and that the European Court regarded the enforcement proceedings as the second stage of those civil proceedings (§27).
    Information is still awaited on urgent measures required to accelerate the pending proceedings in the following cases: Atanasovic, MZT Learnica, Gjozev and Manevski (second set of proceedings). In the Atanasovic case, information is also awaited on the proceedings dormant since 1995, when a retrial was ordered by the second-instance court (§38), and on the developments in the case after the applicants had requested the resumption of the enforcement proceedings in 1998 (§17).
    General measures:
    • Information provided by the authorities of the respondent state (21/12/2006, 15/10/2008, 20/10/2008, 22/10/2008, 28/01/2009 and 29/06/2009): The following general measures have been implemented with reference to the violations found:
    1) Violations of Article 6§1:
    New Law on Civil Proceedings: This law was adopted in September 2005 (Official Gazette No. 79/2005) with the primary purpose of increasing the efficiency and reducing the duration of civil proceedings. The major changes introduced are the following:
    - Redefinition of the principle of “the search for material truth”: courts now limit themselves to matters raised and evidence adduced by the parties;
    - New provisions concerning delivery of receipts, so as to accelerate procedures and reduce the scope for manipulation by parties;
    - Changes to enhance the efficiency of civil proceedings regarding legal representation, time-limits for admission of evidence at various stages in proceedings and appeal procedures;
    - Appeal courts may no longer repeatedly refer cases back to the first instance: instead, they must themselves determine any case which comes before them a second time. However, the European Court noted in the Gjozev judgment, that this provision did not prove efficient in the applicant’s case yet (§51). It appears, however, that this was not a general but rather a specific observation relating only to the particular case of Gjozev.
    • Statistics: Since the introduction of the new Law on Civil Procedure, the statistics concerning the length of civil proceedings have improved considerably. For instance, in the first half of 2008, a total of 52,1% of all civil cases were resolved within 6 months, while a further 24,6% were closed within a year.
    2) Violation of Article 13:
    • New Law on Courts: It was adopted in 2006 and provides a domestic legal remedy and a procedure whereby applicants may request protection of their right to a hearing within a reasonable time before domestic courts before lodging applications with the European Court. The major changes introduced by the Law on Courts are that:
    - Parties considering that their human rights have been violated in this respect may file a request for protection of that right with the immediate higher-instance court. The court thus seised must process the request no later than six months following the lodging of the request and decide whether the lower court has violated the right to a hearing within reasonable time. If a violation is found, it awards just satisfaction, charged to the Court Budget.
    - The Supreme Court is also competent to decide, at the request of the parties or other participants in the proceedings, whether there has been a violation of the right to a hearing within reasonable time.
    • Opinion of the Supreme Court: On 26/07/2007 the Supreme Court rendered an opinion to the effect that it was not possible to apply Articles 35 and 36 of the 2006 Law on Courts properly from the viewpoint of the right to a trial within a reasonable time without further amendments. The Supreme Court considered that the following provisions are not sufficiently clear for the following reasons:
    - First, there is no special law to regulate decision-making on complaints concerning the right to a trial within a reasonable time, nor any provision referring to application of existing procedural laws mutatis mutandis.
    - Secondly, it is not specified which courts make such decisions at first instance or in which composition: moreover the law is mute concerning the right to appeal and the courts which intervene at second instance.
    - Thirdly, there is no indication of the period after which decisions become final.
    - Fourthly, there is no indication as to the identity of the defendant in such proceedings.
    - Finally, it is stated that the damages awarded in the proceedings concerning violation of the trial within a reasonable time should be at the expense of the State Budget rather than the Court Budget as currently provided. This is particularly important since the Court Budget, having no legal personality, cannot be a party to proceedings. Moreover, the fact that the Court Budget is obliged to pay damages runs counter to the principle of rule of law.
    Parizov judgment: The European Court examined the solutions introduced by the 2006 Law on Courts for the first time in the Parizov judgment. Like the Supreme Court, the European Court advanced the following criticism of this Law (§§44-45 in Parizov as well as in §§44-46 in Stojković and §§37-38 in Gjozev:
    - First, the expression “the court considers the application (постапува по барањето) within six months” is susceptible to various interpretations. It remains open to speculation whether the proceedings upon such application should terminate within that time-limit.
    - Secondly, the Law does not specify which court would be competent to decide on a complaint concerning a violation of the right to a trial within reasonable time if a case is pending before the Supreme Court, as was the case in the Parizov judgment.
    - Thirdly, no complaint concerning the violation of the right to a trial within reasonable time has been decided by a court, although more than twelve months have elapsed since the introduction of the remedy.
    - Finally, the Law contains no provision explicitly bringing all applications pending before the European Court within the jurisdiction of the national courts irrespective of whether they are still pending at domestic level (transitional provisions).

    • 2008 Amendments to the Law on Courts: In this respect, certain amendments to the Law on Courts were introduced in March 2008, providing among other things that the Supreme Court was the only court competent to make decisions concerning the excessive length of proceedings and should make such decisions within 6 months. The Supreme Court has established a special division to deal exclusively with this type of cases. It is also provided that the Supreme Court shall make decisions concerning the excessive length of proceedings taking into consideration the case-law of the European Court. If the Supreme Court finds a violation of the right to a trial within reasonable time, it shall make a decision on the applicant’s right or obligation and shall also award just satisfaction.
    • Statistics: Following the amendments introduced in March 2008 (see above), a total of 267 complaints concerning the excessive length of proceedings has been filed with the Supreme Court. The Supreme Court has taken decisions in 127 cases (in 2008 and 2009 in 86 and 41 cases respectively). As of 01/06/2009, the Supreme Court found the length of proceedings excessive in 12 cases.
    Assessment: The respondent state introduced both acceleratory and compensatory remedies intended to prevent similar violations. The initial statistics for the period after the adoption of the new Law on Civil Procedure and the 2008 Amendments to the Law on Courts appear to be encouraging. It should be noted that the respondent state reacted promptly to the subsequent criticism of the European Court in this matter. The Secretariat welcomes the reforms undertaken so far. However, their lasting effects in practice remain to be demonstrated.
    Information is awaited on further statistics on the average length of civil proceedings and court decisions on complaints concerning the excessive length of civil proceedings in 2009 and the first half of 2010.
    3) Translation, publication and dissemination of the European Court’s judgments: The European Court’s judgments have been translated and published on the internet site of the Ministry of Justice (www.pravda.gov.mk) and sent out to the relevant courts and authorities. The Academy for Training of Judges and Public Prosecutors distributed some of those judgments in electronic version to members of the judiciary. The Manevski and Gjozev judgments have been studied in depth during training provided to judges and public prosecutors.

    The Deputies decided to resume consideration of these items at the latest at their DH meeting of September 2010, in the light of information to be provided on individual and general measures.

    - 12 cases against Turkey

    63748/00 Taştan, judgment of 04/03/2008, final on 04/06/200838

    1767/03+ Dağdelen and others, judgment of 25/11/2008, final on 25/02/2009
    This case concerns primarily the unfairness of criminal proceedings against the applicants Őnder Dağdelen and Ergűl Çiçekler. They were sentenced, by a judgment which became final in December 2003, to life imprisonment. The European Court pointed out that these two applicants had not been assisted by a lawyer while in police custody and considered that the statement that they made to the police under duress constituted an essential basis of their conviction (Article 6§§1 and 3 c)).
    The case also concerns the ill-treatment to which the applicants had been subjected while in police custody (violation of the substantive aspect of Article 3), and the absence of an effective investigation (violation of the procedural aspect of Article 3).
    Individual measures: In view of the seriousness of the violation of the Convention and having regard to the fact that the applicants Őnder Dağdelen and Ergűl Ciçekler are still suffering the consequences of the violation, the reopening of proceedings appears to be the most appropriate redress for the applicant.
    Information is awaited on the measures envisaged by the Turkish authorities to find a rapid solution to the applicant's situation.
    General measures: General measures concerning ill-treatment and the absence of an effective investigation are under examination before the Committee in the cases concerning the actions of the Turkish security forces (Aksoy group, 1065th meeting, September 2009).

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

    8932/03 Paşaoğlu, judgment of 08/07/2008, final on 08/10/2008
    The case concerns the unjustified interference with the applicant’s right to respect for his private and family life due to the rejection of his request for renewal of his passport in 1999. The applicant, who resides with his wife and daughter in Greece, was denied renewal on account of a restriction registered in his name by the Ministry of the Interior.
    The European Court observed that the measure imposed on the applicant did not stem from criminal proceedings or the execution of a detention order. The restriction in question was justified by the applicant’s family ties to a certain Georgios Andreadis, who was not permitted entry to Turkey, and by the existence of a “restriction notice” to which the applicant had no access. The Court concluded that to maintain the measure for a long period, in the absence of any criminal charge against the applicant, was disproportionate and could not be regarded as “necessary in a democratic society” (violation of Article 8).
    Individual measures:
    Information provided by the Turkish authorities (letter of 25/06/2009):
    - in compliance with the European Court’s judgment of 08/07/2008, restriction notice on the applicant’s passport of was lifted. There is thus no restriction on the applicant’s entering and leaving Turkish territory;
    - the applicant is not wanted by the authorities in connection with any offence;
    - as of 22/05/2009, no application has been lodged by the applicant for the renewal of his passport.
    Assessment: no further individual measure appears necessary.
    General measures:
    Information is awaited on the publication and dissemination of the Court's judgment to the judicial authorities and relevant administrative bodies.

    The Deputies decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on general measures.

    23018/04+ Urcan and others, judgment of 17/07/2008, final on 17/10/2008
    The case concerns a breach of the applicants’ right to freedom of association as a result of their conviction for participating in a strike organised to improve the working conditions of civil servants. The applicants, all members of the trade union that organised the strike, were convicted for being absent from their post under Article 236 of the old Criminal Code and were sentenced to imprisonment, commuted to a fine. They were also excluded temporarily from public service (violation of Article 11).
    The European Court found that the sanction imposed on the applicants could not be considered necessary in a democratic society since it could dissuade trade union members from participating in other legitimate gatherings.
    Individual measures:
    Information provided by the Turkish authorities (letter of 25/06/2009): the conviction of the applicant Aysun Urcan has been erased from her criminal record. A copy of her criminal record was received enclosed with the national authorities’ letter.
    Information is awaited on the erasure of the convictions from the criminal records of the other applicants concerned in these cases.
    General measures:
    Information provided by the Turkish authorities (letter of 25/06/2009): Article 236 of the former Criminal Code is no longer in force, having been replaced by Article 260 of the new Criminal Code. Article 260 of the new Code in its first paragraph criminalises the collective abandonment or slow performance of duties, but provides in its second paragraph that, in case of temporary suspension or slowing down of work by public officials in relation to their professional or social rights and without harming the public service, either no penalty shall be imposed, or the penalty indicated at the first paragraph shall be reduced.
    The commentary on Article 260 explains that in the application of this provision, the criminal judge has a margin of appreciation concerning mitigation or suppression of punishment if the conditions indicated in the second paragraph are fulfilled.

    Assessment: Article 260 of the new Code, in its second paragraph, unlike Article 236 of the former Criminal Code, gives the judge discretionary power to establish a fair balance between the needs of the public service and the right of state agents to protect their social rights and professional interests. In other words, to abandon or to slow down work is not automatically considered as a crime as former Article 236 did, but the judge has now the duty to verify whether this abandonment or non-performance could be considered a means for state agents to protect their social interests in the special circumstances of a case. If so, and unless the abandonment seriously affected the principle of continuity of the public service, either no punishment is imposed, or it is reduced.
    Information is awaited on the publication and dissemination of the Court's judgment to the relevant judicial authorities.

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

    16110/03 Karataş Şahin, judgment of 17/06/2008, final on 17/09/200839

    16330/02 Gülmez, judgment of 20/05/2008, final on 29/09/200840

    68514/01 Yılmaz and Kılıç, judgment of 17/07/2008, final on 17/10/2008
    The case concerns the unjustified interference with the applicants’ freedom of expression on account of their conviction for having participated in a demonstration in 1998 in order to protest against the arrest of Abdullah Öcalan and for having spread propaganda for a terrorist organisation.
    The applicants were sentenced to three years and nine months’ and three years and sixteen months’ imprisonment by the İzmir State Security Court under Article 169 of the old Criminal Code and abrogated Article 8 of the Anti-terrorism Law.
    The European Court found that it has not been established that the applicants had been implicated in the demonstrations in question and had chanted slogans themselves (violation of Article 10).
    The case also concerns the lack of independence and impartiality of the İzmir State Security Court on account of the presence of a military judge (violation of Article 6).
    Individual measures:
    Information is awaited as to whether the applicants still suffer from the consequences of the violation.
    General measures:
    1) Violation of Article 10:
    Information is awaited on the measures taken or envisaged in order to prevent similar violations in the future.
    2) Violations of Article 6§1: This case presents 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.

    The Deputies decided to resume examination of this item at their 1072nd meeting (December 2009) (DH) in the light of information to be provided on individual and general measures.

    12863/02 Işıldak, judgment of 30/09/2008, final on 30/12/200841

    14340/05 Fener Rum Patrikliği (Patriarcat œcuménique), judgment of 08/07/2008, final on 08/10/200842

    44088/04 Menemen Minibüsçüler Odası, judgment of 09/12/2008, final on 09/03/200943

    35832/97 IPSD and others, judgment of 25/10/2005, final on 25/01/2006
    This case concerns the dissolution in 1994 of the applicant association (association against unemployment and excessively high prices) on the ground that its statute was contrary to Articles 5§§11 and 12 of Law No. 2908 on Associations. According to these provisions, associations are prohibited from carrying out political activities and insulting the Turkish state.
    The European Court observed that the association had been dissolved solely on the basis of its statute, before it had been able to commence its activities. As the association did not advocate any policy that could have undermined the democratic regime in the county and did not urge or seek to justify the use of force for political ends, it’s dissolution could not reasonably be “necessary in a democratic society” (violation of Article 11).
    Individual measures:
    Information is awaited as to whether the applicants may obtain registration of the association.
    General measures:
    Information awaited on measures taken or envisaged to prevent similar violations.

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

    - Case of length of detention on remand of minors
    20817/04 Nart, judgment of 06/05/2008, final on 06/08/2008
    The case concerns the excessive length of pre-trial detention (48 days) of the applicant, who was a minor at the time (violation of Article 5§3), and the lack of an effective remedy with which to challenge the lawfulness of his detention on remand (Violation of Article 5§4). The proceedings were still pending before the domestic courts when the European Court delivered its judgment.
    Individual measures: The applicant is still detained on remand but in connection with an offence unrelated to the present case.
    Assessment: no individual measure therefore appears necessary.
    General measures:
    1) Violation of Article 5§3: The required measures were taken following the Selçuk case (21768/02, Section 6.2.)
    2) Violation of Article 5§4:
    Information is awaited on the measures taken or envisaged in this respect.

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

    - 4 cases against Ukraine

    34056/02 Gongadze, judgment of 08/11/2005, final on 08/02/2006
    Interim Resolution CM/ResDH(2008)35
    The case concerns the disappearance and murder of the applicant's husband, the journalist G. Gongadze, in September 2000.
    The European Court found that although G. Gongadze wrote to the Prosecutor General complaining about being subject to surveillance by unknown people and the inexplicable interest in him shown by law-enforcement officers, the authorities failed to take any step to verify this information or to protect his life (violation of Article 2). The Court further found that the investigation into his disappearance had suffered a series of delays and deficiencies (procedural violation of Article 2).
    The Court also found that the investigation authorities' attitude to the applicant and her family, in particular the uncertainty resulting from numerous contradictory statements about the fate of the applicant's husband and their constant refusal to grant her full access to the case-file, caused her serious suffering amounting to degrading treatment (violation of Article 3).
    Finally, the Court considered that the lack of any effective investigation for more than 4 years and the impossibility to seek compensation through civil proceedings pending criminal investigation constituted a denial of an effective remedy (violation of Article 13).

    Individual measures:
    • State of the proceedings in the case when the European Court delivered its judgement: During the criminal investigation, the Office of the Prosecutor General identified four former officers of the Ministry of Internal affairs allegedly involved in the crime and in February 2005 instituted criminal proceedings against them. The criminal proceedings against three of them were subsequently divided into separate proceedings and were about to be brought to court. The criminal investigation against the fourth officer, O. Pukach (who, upon his release from custody in 2003, absconded from investigation and was put on the wanted list), and against the unidentified persons who had allegedly ordered the kidnapping and murder of G. Gongadze was carried out by the Office of the Prosecutor General. The investigation pursued, inter alia, forensic examinations of certain audio recordings allegedly secretly made by M. Melnychenko in the office of the President of Ukraine, implicating President Kuchma and other high-level state officials in the disappearance of G. Gongadze.
    • Further developments in the proceedings
    1) Court proceedings: In January 2006, court proceedings in the criminal case against the three former officers of the Ministry of Internal Affairs charged with premeditated murder were begun before the Kyiv City Court of Appeal. On 15/03/2008 the court delivered a verdict finding the accused guilty as charged and sentencing two of them to 12 years’ and the third to 13 years’ imprisonment. This judgment was upheld by the Supreme Court of Ukraine on 8/07/2008.
    2) The investigation: The pre-trial investigation in the criminal case against O. Pukach, the immediate superior of the three convicted police officers and allegedly the main perpetrator of the murder, as well as against unidentified instigators and organisers of the kidnapping and murder of G. Gongadze, is still pending. Operational search activities to identify these persons are under way. Pre-trial proceedings in another criminal case, against Ms S, who allegedly helped O. Pukach to abscond from investigation and trial is also pending. Measures are still being taken to establish Ms S’s whereabouts.
    Melnychenko recordings: In July 2007, the Prosecutor General’s Office, with the co-operation of M. Melnychenko, carried out some “investigative experiments”, including a reconstruction of the events in the premises of the Secretariat of President of Ukraine, verifying the technical possibility of making recordings in the President’s office using the equipment and techniques indicated by M. Melnychenko. Several investigatory acts with co-operation of Melnychenko also took place outside Ukraine with participation of foreign experts.
    The Prosecutor General's Office decided not to institute criminal proceedings against the key Ukrainian officials whose voices were allegedly to be heard on the tapes, since the original tape-recordings made by M. Melnychenko had never been seized. Consequently, it was impossible to establish the identity of the recorded voices, or to prove the authenticity of the recordings.
    In 2005 M. Melnychenko expressed his readiness to hand over the original tape recordings and recording devices to investigative authorities for examination, if foreign experts were involved in their examination. In 2008 a group of international experts was set up to determine the authenticity of the recordings. M. Melnychenko subsequently handed over some of the original audio recordings and recording devices to the experts. In April 2009 the Ukrainian Government allocated UAH 134427 (at the material time approximately EUR 13 170) for logistic support of the experts’ work. The phonoscopic examination is under way.
    Information provided by the Ukrainian authorities on 31/07/2009: On 21/07/2009, following a special operation, O. Pukach was apprehended. The reconstruction of the scene and circumstances of the crime was conducted with his participation. As a result, the examination of the place he pointed to be the place where the head of G. Gongadze had been hidden was carried out and some separate parts of a human skull were found. The necessary forensic medical and other examinations were ordered.
    From 26 to 29/06/2009 several investigatory actions were carried out by the group of foreign experts in the premises of the Secretariat of President of Ukraine within the framework of the phonoscopic examination of the recordings allegedly made there by M. Melnychenko. Some additional items were handed over by M. Melnychenko to the experts. The relevant examinations were ordered.
    In accordance with the investigation plan, other investigative actions to identify instigators and organisers of the kidnapping and murder of G. Gongadze are being taken.
    • Interim Resolution adopted by the Deputies at their 1028th meeting (June 2008):
    The Committee of Ministers
    - urged the authorities of the respondent state to take with reasonable expedition all necessary investigative steps to achieve concrete and visible progress in identifying instigators and organisers of the murder of the applicant’s husband and bringing them to justice;
    - invited the respondent state to keep the Committee regularly informed of the measures taken and the result achieved, in particular as regards verification of the relevant tape recordings.

    General measures: It appears that the violations were due to the particular political context in Ukraine at the material time. On 16/01/2007 the Ukrainian authorities provided information on the rules governing investigation procedures, in particular with regard to the independence of investigators, the promptness of investigation and the right of the aggrieved party to adequate access to the file during the investigation.
    1) Independence of investigation: Following the opinion of the Venice Commission and Recommendations of the Parliamentary Assembly, on 6/10/2006 the Verkhovna Rada withdrew from consideration the draft law On amendments to the Law On the Office of Public Prosecutor - which had passed a first reading on 4/03/2003 - as its provisions did not fully correspond with the role of the prosecution system in a democratic society. The competent parliamentary committee was ordered to set up a working group to draft new wording for the law (Resolution of the Verkhovna Rada of Ukraine of 6/10/2006 No. 207-V).
    The Ukrainian authorities informed the Secretariat that according to the Presidential Decree of 20/01/2006 No. 39 On the action plan for the honouring by Ukraine of its obligation and commitments to the Council of Europe, the new wording of the Law On the Office of Public Prosecutor will be drafted by the Ministry of Justice, after approval by the President of Ukraine of the Concept of complex reform of criminal justice, drafted by the National Commission for Strengthening Democracy and the Rule of Law. The Concept was in the final stage of elaboration.
    Information is awaited on the time-table for preparing and adopting these draft laws.
    2) Remedies against the excessive length of investigations: In the context of the examination of the Merit case and the Zhovner group of cases the Ukrainian authorities informed the Committee of a draft law On amendments to certain legal acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time). The draft provides a new remedy making it possible to apply to the administrative court with a claim about violation of the right to proceedings, including pre-trial investigation, within reasonable time. It includes compensation for delays and sanctions against those responsible.
    Assessment: It remains unclear whether the draft law provides for acceleration of proceedings.
    Pending the adoption of the draft law and amendments mentioned above, the judicial authorities are invited to award compensation for delays in enforcing decisions directly on the basis of the provisions of the Convention and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case-law of the European Court. Guidance to this effect from the Supreme Court to lower courts would be useful.
    Information is awaited on the time-table for the adoption of the draft law and amendments, as well as the last official version of the draft.
    3) Publication and dissemination: The judgment of the European Court has been translated and published.
    Information is awaited on the dissemination of the judgment.

The Deputies,
1. adopted Interim Resolution CM/ResDH(2009)74 as it appears in the Volume of Resolutions;
2. decided to resume consideration of this case at the latest at their DH meeting in March 2010, in the light of further information to be provided on individual and general measures.

    3236/03 Ponomaryov, judgment of 03/04/2008, final on 29/09/2008
    The case concerns a violation of the principle of legal certainty in that a final domestic judgment of 2001 delivered in the applicant’s favour was quashed in 2004 of following the renewal of the time-limit for lodging an ordinary appeal granted to the opposite party. In doing so, the Ukrainian courts relied on the fact that it had been in a difficult economic situation before which prevented it from paying court fees.
    The European Court found that the domestic courts, by allowing such an appeal merely for the purpose of a re-hearing and a fresh decision on the case and not for correction of any serious judicial error or miscarriage of justice, had infringed the principle of legal certainty (violations of Article 6§1 and Article 1 of Protocol No. 1).
    Individual measures: The European Court granted just satisfaction in respect of the pecuniary and non-pecuniary damage sustained.

    General measures: It would appear that violations in this case were due to the reopening of proceedings after a considerable lapse of time by renewing the time-limit for an ordinary appeal. The European Court noted in this respect that the legal systems of many member states provide the possibility to extend procedural time-limits if there are valid reasons to do so. The European Court also acknowledged that it was primarily within the domestic courts’ discretion to decide on the renewal of the time-limit for an appeal, but this discretion was not unlimited. The domestic courts should verify whether the reasons for renewal of a time-limit for appeal could justify the interference with the principle of res judicata especially, as in the present case, when the domestic legislation does not limit courts’ discretion either on the time or on the grounds for the renewal of the time-limits.
    Information is thus awaited on measures taken or planned to ensure the interpretation by courts of the relevant provisions in line with the Convention’s requirements and in particular with the principle of legal certainty as set out in the present judgment. Information is also awaited on the publication of the European Court’s judgment and its dissemination in particular to all courts with a circular letter from the Supreme Court.

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

    39948/06 Saviny, judgment of 18/12/2008, final on 18/03/2009
    The case concerns the violation of the right to respect for the family life of the applicants (husband and wife). The applicants have both been blind since childhood. They gave birth to seven children. Four of them were taken into public care in 1998. In 2006, pursuant to a court judgment, the remaining three children were also placed in public care. The decision to place children in public care was based on a finding that the applicants' lack of financial means and personal qualities endangered their children's life, health and moral upbringing.
    The European Court found that placing the children in public care was not “necessary in a democratic society”. First, the European Court doubted the adequacy of the evidence on which the authorities had based their finding that the children's living conditions had in fact endangered their life and health. In particular, the custody proceedings instituted in January 2004 had not resulted in the children's removal from home until June 2006. No interim measure had been sought and no actual harm to the children during this period had been recorded.
    Secondly, the domestic courts appeared to have taken on trust the submissions by the municipal authorities, drawn from their occasional inspections of the applicants' dwelling. No other corroborating evidence, such as the children's own views, their medical files, opinions of their paediatricians or statements by neighbours, had been examined. Nor did the courts appear to have analysed in any depth the extent to which the purported inadequacies of the children's upbringing were attributable to the applicants' irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling.
    Thirdly, the European Court noted that it was not its role to determine whether the promotion of family unity in the case entitled the applicants' family to a particular standard of living at public expense. It was, however, a matter which fell to be discussed, initially by the relevant public authorities and, subsequently in the course of the judicial proceedings. As regards the applicants' purported parental irresponsibility, the European Court emphasised that no independent evidence (such as an assessment by a psychologist) had been sought to evaluate the applicants' emotional or mental maturity or motivation in resolving their household difficulties. Nor had the courts examined the applicants' attempts to improve their situation, such as requests to equip their flat with access to natural gas and hot water, recoup salary arrears or request employment assistance. No data was sought as regards the actual volume and sufficiency of social assistance or the substance of specific recommendations provided by way of counselling and explanations as to why these recommendations had failed. Soliciting specific information in this regard would have been pertinent in evaluating whether the authorities had discharged their obligation under the Convention to promote family unity and whether they had sufficiently explored the effectiveness of less far-reaching alternatives before seeking to separate the children from their parents. Furthermore, at no stage of the proceedings had the children been heard by the judges. Moreover, not only had the children been separated from their family of origin, they had also been placed in different institutions.

    Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants.
    According to the information provided by the Ukrainian authorities, the applicants applied to the Supreme Court for review of the decision at issue under exceptional circumstances.
    Information is urgently awaited as to whether the applicants have contacts with their children and on the outcome of the proceedings before the Supreme Court.
    General measures: The European Court’s judgment has been translated into Ukrainian. A summary in Ukrainian was published in the Government’s Currier (Uriadovyi Kurier), No. 71 of 18/04/2009. It will also be published in the official government print outlet – Official Herald of Ukraine (Ofitsiinyi Visnyk Ukrainy). The translation of the judgment will be placed on the internet site of the Ministry of Justice.
    The attention of the Supreme Court of Ukraine and Ministry for Family, Youth and Sport of Ukraine was drawn to the Court's conclusions in the judgment.
    Information is awaited on measures announced.

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

    30663/04 Lutsenko, judgment of 18/12/2008, final on 18/03/2009
    The case concerns a violation of the applicant’s right to a fair trial due to the use to a decisive degree by domestic courts of a statement given by an absent co-accused, without procedural guarantees against self-incrimination (violation of Article 6§1).
    Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant.
    Information is awaited as to whether the applicant has requested the re-opening of proceedings following the European Court’s judgment.
    General measures:
    Information is awaited on the legislative framework concerning use of confessions at trial. Information is also awaited on publication and dissemination of the European Court’s judgment.

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

    - 9 cases against the United Kingdom

    3455/05 A. and others, judgment of 19/02/2009 – Grand Chamber
    This case concerns the applicants' certification by the UK authorities as “suspected international terrorists” their detention, and subsequent legal challenges to their certification and detention (violation of Articles 5§1, 5§4 and 5§5).
    Background: On 18/12/01 the United Kingdom lodged a derogation pursuant to Article 15 of the European Convention with the Secretary General of the Council of Europe in respect of Part 4 of the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act). The derogation was made on the basis that there was a public emergency in the United Kingdom and stated that the provisions in Part 4 of the 2001 Act may be inconsistent with Article 5§1. In 2001 the applicants were certified by the United Kingdom authorities under Part 4 of the 2001 Act as “suspected international terrorists” and consequently detained. They challenged their certification and detention in the Special Immigration Appeals Commission (SIAC) and on appeal to the House of Lords.
    Derogation from Article 5§1 under Article 15 of the European Convention: The European Court first considered the validity of the United Kingdom's derogation from Article 5§1, under Article 15 of the European Convention. The Court concluded that the derogation was valid, as at the time there was a public emergency threatening the life of the nation (§181).
    Violation of Article 5§1: The Court then went on to consider whether the measures made pursuant to that derogation (i.e. Part 4 of the 2001 Act) derogated “only to the extent strictly required by the exigencies of the situation” (§182). The Court found that the measures under which the applicants were detained were “disproportionate in that they discriminated unjustifiably between nationals and non-nationals” (§190).

    Violation of Article 5§4: The applicants' certification and detention was considered before the SIAC courts, which use a system of “closed evidence” and “special advocates” to consider evidence related to national security issues (see §§91-93).The European Court found that given the applicants' lengthy and, at the time, possibly indefinite detention, the proceedings before the SIAC needed to include certain guarantees. The Court found that those guarantees were absent in proceedings against four of the applicants where those applicants were unable to respond to allegations against them: such allegations being general assertions or contained entirely in closed evidence unavailable to the applicants or their counsel.
    Violation of Article 5§5: Lastly, the European Court stated that the violations found could not give rise to an enforceable claim for compensation before national courts.
    Individual measures: The European Court awarded just satisfaction for non-pecuniary damage to all eleven applicants, save the second and fourth.
    Initially, all the applicants were detained in a high-security prison. As none of them were United Kingdom nationals, they could opt under the 2001 Act to leave the country at any time. The second and fourth applicants thus elected to leave the United Kingdom in 2001 and 2002 respectively.
    On 11/03/05, the other applicants were released and then immediately made subject to control orders under the Prevention of Terrorism Act 2005 (see General Measures below).
    On 11/08/05 the United Kingdom authorities served Notices of Intention to Deport on applicants numbered 5-11, following assurances from the Algerian and Jordanian governments that the applicants would not be ill-treated on return. A number of the applicants appealed their deportation.
    Information provided by the United Kingdom authorities (06/04/2009): with the exception of the eighth applicant, the applicants are no longer detained. The eighth applicant is detained but not under Part 4 of the 2001 Act (see general measures).
    Information is awaited as to whether any of the applicants and in particular the eighth applicant are held subject to a control order under the 2005 Act and in accordance with the safeguards identified by the European Court in relation to Article 5§4 (see general measures).
    General measures:
    1) Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the notice of derogation on 16/03/05.
    2) Violation of Article 5§1: Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force on 11/03/2005. The control order regime under the 2005 Act operates regardless of nationality (§83).
    Sections 1-9 of the 2005 Act which set out to the control order regime, remain in force for one year at a time and are then subject to renewal by Parliament. On 05/03/09 Parliament voted to renew the powers under the 2005 Act for a further year, from 11/03/09 - 11/03/10.
    Assessment: no further general measures appear necessary in relation to this violation.
    3) Violation of Article 5§4: The SIAC was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, the SIAC continues to deal with cases where the Secretary of State for the Home Department seeks to deport or exclude individuals from the United Kingdom on national security or other public interest grounds under the Nationality, Immigration and Asylum Act 2002.
    The control order regime which relates to persons involved in terrorism related activity under the 2005 Act also involves the use of “closed material” and the presence of “special advocates”. The procedures under the 2005 Act were modelled on the SIAC procedures but exist under separate legislation.
    On 10/06/2009, sitting exceptionally as a nine-judge panel, the House of Lords gave judgment in the case of Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action [2009] UKHL 28. The judgment considered the impact of the European Court’s finding of a violation of Article 5§4 on the control order regime set out under the 2005 Act. Noting that the legal framework of the violation in this case was different from that before them, the Lords stated that “the clear terms of the judgment in A and others v United Kingdom resolve the issue raised in these appeals” (§64).

    They went on to state that “…the essence of the Grand Chamber’s decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation those allegations. Provided that this requirement is satisfied there can be a fair trial …” (§59). The Lords did not make a Declaration of Incompatibility under the Human Rights Act 1998 in respect of the 2005 Act but stated: “If the Government adjudges that it is necessary to impose serious restrictions upon an individual’s liberty without giving that individual a fair opportunity to challenge the reasons for doing so … then the Government will have to consider whether or not to derogate from Article 6 of the European Convention. Until that time, judges will have to grapple with precisely how much disclosure is necessary to enable the controlled person to mount an effective challenge and the Secretary of State will have to grapple with whether to agree to it. The principles are clear, although by no means easy to apply in particular cases…” (§106).
    Information is awaited: on any measures taken or envisaged in relation to this violation in respect of the application of the 2002 and 2005 Acts referred to above, particularly in light of the judgment of the House of Lords.
    4) Violation of Article 5§5: The violation of Article 5§5 follows the European Court’s finding that the violations found could not give rise to an enforceable claim for compensation before the national courts.
    Information is awaited on any measures taken or envisaged in respect of this violation.
    5) Publication: the judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D)(203). It was also widely reported on in the British media.

    The Deputies decided to resume consideration of this case at their 1072nd meeting (December 2009) (DH), in the light of the information provided by the authorities on individual and general measures.

    *30562/04+ S. and Marper, judgment of 04/12/2008 – Grand Chamber
    This case concerns unjustified interference in the applicants' right to respect for their private life due to the indefinite retention of fingerprints and DNA samples taken from them (violation of Article 8).
    Both applicants had their fingerprints and DNA samples taken by the police under the Police and Criminal Evidence Act 2001 (PACE) in relation to criminal incidents. The fingerprints and samples were to be retained indefinitely under Section 64 of PACE. The first applicant (a minor) was tried and acquitted. The charges against the second applicant were dropped.
    Both applicants requested that their samples be destroyed, however this was refused. The applicants challenged that refusal in the domestic courts. Their claim was ultimately dismissed on appeal to the House of Lords on 22/07/04.
    The European Court found that the blanket and indiscriminate nature of the powers of indefinite retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the public and private interests.
    Individual measures: The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction.
    On 05/12/2008 the applicants' lawyer confirmed that the applicants had contacted the relevant government departments to request the destruction of their fingerprints and DNA samples.
    Information provided by the United Kingdom authorities (19/01/2009): The responsible police authority has destroyed the applicants' fingerprints and DNA samples and profiles. On 09/06/2009 the United Kingdom authorities stated that the applicant S. has had further data taken from him due to his suspected involvement in criminal activity.
    Assessment: no further individual measures appear necessary. However, the processing of later data taken from S appears linked to the general measures.
    General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ … material may be retained irrespective of the nature or gravity of the offence … or of the age of the suspected offender …[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities … to have the data removed from the nationwide database [and] … no provision for independent review of the justification for the retention according to defined criteria” (§119).

    The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:
    - Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system
    - Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector
    - Article 7 of the Data Protection Convention
    1) The DNA database: The United Kingdom authorities confirmed that steps have been taken to remove the samples and profiles for children under the age of 10 from the National DNA database (10 being the age of criminal responsibility in the UK).
    • Information from the House of Commons Library - Standard Note SN/HA/40409 of 09/04/2009: As at 01/01/2009 there were 5 140 940 profiles on the National DNA database for an estimated 4 457 195 individuals. Of those, 96 profiles belonging to children aged under 10 were deleted. As at 05/03/2009 there were no profiles of children under 10 on the database.
    As at 31/03/2008, 857,366 people with profiles on the National DNA database had no record of a criminal conviction according to police records.
    2) Policing and Crime Bill: The Policing and Crime Bill was debated in the House of Commons, in Committee (a select group of MPs) on 26/02/2009. The Bill is not yet law. In that debate, the government proposed the inclusion of three new clauses which would amend the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to give the Secretary of State the power to make regulations governing the retention of fingerprints and DNA. These clauses will be the legal basis for any regulations that the government makes following the public consultation (see below). During the debate, the clauses were strongly criticised by MPs as the powers they create mean that any regulations made following the consultation will be passed as secondary legislation under the “affirmative resolution procedure”. This means that parliament will not be able to debate the content of the regulations but only vote to adopt or reject them in their entirety without time allocated for a full parliamentary debate.
    On 14/05/2009 a draft of the regulations to be made under the Policing and Crime Bill was deposited in the House of Commons library (ref DEP2009-1431). They are available online at http://deposits.parliament.uk/. The provisions in the draft regulations reflect the content of the public consultation (see below).
    In its report on the bill of 12/06/2009, the Delegated Powers and Regulatory Reform Commission of the House of Lords concluded that the secondary legislation process should not be allowed to proceed as the text stands, in view of its importance. The United Kingdom government are considering the report.
    Information is awaited on the progress of the relevant clauses in the Policing and Crime Bill.
    3) Public consultation: The United Kingdom authorities held a public consultation on the measures and options available to implement the European Court's judgment. The consultation called Keeping the Right People on the DNA database was open for three months during the summer of 2009 (07/05-07/08/2009). It received over 500 responses and is available online at : <http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/>
    The government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options. The Group consists of representatives from the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General's Office, the Crown Prosecution Service, the Scottish Government, the Association of Chief Police Officers, the Police Federation, the National Policing Improvement Agency and the Association of Police Authorities. The Group will report their findings to government ministers for consideration in relation to the content of the public consultation.
    In addition to the consultation, the United Kingdom authorities are hosting a series of meetings with key interest groups including the Equality and Human Rights Commission, NGOs and other groups from civil society.
    4) Proposals set out in the public consultation:
    a) Provisions for the taking of DNA and fingerprints:
    The existing position will be retained. DNA and fingerprints will be taken on arrest from a person detained at a police station for a recordable offence (that is any offence punishable by imprisonment under the National Police Records (Recordable Offences) Regulations 2000).

    Recordable offences include inter alia begging, theft of a bicycle, public drunkenness, trespass and impersonating a policeman.
    b) Retention of DNA samples:
    A DNA sample is the actual, biological sample supplied, such as a mouth swab or blood. DNA samples would be destroyed automatically, within 6 months. The obligation to destroy would be set out under the proposed regulations.
    Assessment: the European Court noted the particular sensitivity of retaining samples (§120) and the reduced margin of appreciation available, given that most Council of Europe states require immediate destruction of samples (§112 and §120). This proposal for automatic destruction appears to reflect the terms of the judgment.
    c) DNA profile retention and fingerprint retention for adults:
    A DNA profile is the numerical information taken from the DNA sample and loaded on to the DNA database. Adults who are arrested and not convicted of any recordable offence will have their profiles retained for 6 years. The profiles will be automatically deleted after this period.
    Adults who are arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years. The profiles will be automatically deleted after this period.
    Assessment: The European Court criticised the previous system for “the blanket and indiscriminate powers of retention” (§125 ). The application of two different detention periods based on the nature of the offence for which an individual is arrested, would appear to respond to the Court's criticism of an indiscriminate approach. However, the question remains whether the proposed retention of DNA profiles and fingerprints is proportionate and strikes a fair balance between the competing public and private interests, as required by the European Court’s judgment. In this respect, it should be noted that the European Court observed that the strong consensus that exists among contracting states in this sphere is of considerable importance and narrows the margin of appreciation in this field (§112). The Court noted in particular that “in the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge” (§108). The Court referred also to Article 8 of Committee of Ministers Recommendation Rec(92)1 which states inter alia that: “measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law”.
    The European Court stated in particular that the regime in Scotland which provides for retention of DNA for unconvicted adults only in cases of serious offences and then only for 3 years, was in accordance with Committee of Ministers Recommendation Rec(92)1. The Court also stated that “weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people” (§123).
    In the light of all the above, it seems that the proposed measures and in particular the proposal to retain profiles for 6 years following arrest for non-serious offences do not conform to the requirement of proportionality.
    The authorities’ comments in this respect would be useful.
    d) DNA profile retention and fingerprint retention for children - aged 10-18: Children arrested but not convicted for a recordable offence on one occasion only will have their profiles retained for 6 years. The profile will be deleted after 6 years or on their 18th birthday, whichever is sooner. Children arrested and not convicted for a recordable offence on more than one occasion will have their profiles retained for 6 years. Children arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years.
    With the exception of those children arrested only once for a recordable offence, the provisions for children are the same as those for adults. Therefore the assessment made in section c) above also applies here.

    In addition, the Court found that the retention of profiles for children is especially harmful (§124) and stressed the provisions of Article 40 of the UN Convention on the Rights of the Child 1989 on the special treatment of minors in the criminal justice sphere.
    Assessment: Given the close similarities in the provisions for retaining profiles of children and adults, the European Court's specifications on the vulnerability of children as compared with adults and the particular importance on the treatment of minors in the criminal justice system, the proposed measures do not appear to respond to the requirements of the judgment.
    The authorities’ comments in this respect would be useful.
    e) Review mechanism for destruction of profiles:
    The current system will remain in place. As before, a request for a profile to be destroyed in exceptional circumstances (such as wrongful arrest/mistaken identity) is made to the Chief Constable of the relevant police force. The criteria against which such a review is to be considered may be codified.
    Assessment: In relation to the existing system, the European Court stated that “…there is no provision for independent review of the justification for the retention according to defined criteria.” (§119). Continuation of the existing system does not appear to respond to the Court's findings on this point. It is noted that a request for destruction will continue to be made to the Chief Constable of the police force that initially took the DNA sample and profile. This does not appear to correspond with the need for an independent review. It is noted that such a decision would be subject to judicial review. However, this is the same as the position considered by the Court in the judgment. In addition, the European Court has questioned the effectiveness of judicial review when considering proportionality in light of Article 8 (see McCann, Application No.19009/04).
    Thus continuation of the existing system, which was found to be in violation of the Convention – in particular in relation to the lack of independent review – does not appear effectively to execute the judgment. As the reference to “defined criteria” is highlighted by the Court along with the essential requirement for to have “clear, detailed rules” (§99), codification of such criteria would be welcome.
    The authorities’ comments in this respect would be useful.
    f) Evidence relied upon to support the existence of the 6- and 12-year rules:
    Research by the Jill Dando Institute is cited along with two US academic studies. There has also been a review of data held on the Police National Computer (PNC).
    The approach of the authorities to the application of the academic studies is that “we …believe that the risk of offending following an arrest which did not lead to a conviction is similar to the risk of reoffending following conviction.” (§6.10 of the consultation). This strongly contrasts with the Court's concern about “the risk of stigmatisation [and] … the right of every person under the Convention to be presumed innocent includes the general rule that non suspicion regarding the innocence of an accused may be voiced after his acquittal.” (§122). In addition, in W. against the Netherlands (application No. 20689/08, decision of 20/01/2009.) retention of DNA material (for convicted persons) was accepted where it was retained for a “prescribed period of time dependent on the length of the statutory maximum sentence that can be imposed for the offence committed.” The approach of the authorities does not consider retention on the basis of any link with the maximum sentence but rather on possibility of future offending.
    The European Court stated that “any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.” (§112)
    Assessment: Given the United Kingdom’s claimed “pioneer role”, reliance only on academic studies, two of which do not relate to the United Kingdom and an approach to those studies which appears to rest on the principle that unconvicted individuals will commit criminal offences, do not appear sufficient to justify retention periods which do not appear to be in conformity with the Court’s judgment.
    The authorities’ comments in this respect would be useful.
    g) Proposed action for samples and profiles taken prior to the judgment:
    There is a total of around 850 000 “legacy” profiles on the database. For around 350 000 of those it is clear that individuals were convicted or acquitted. Of the profiles where the status of the individual is clear, the United Kingdom proposes to apply retrospectively the retention periods set out in the consultation paper (see sections c and d above). There are around 500 000 profiles for which it is unclear if the individual was convicted or acquitted. No decision has been taken yet on the fate of these profiles. The United Kingdom authorities believe it is possible that some of these profiles may be linked with criminal records but they are unable to check this easily.

    Further research is being done to establish whether it is in fact possible to cross-reference this information or whether all 500 000 profiles should be deleted.
    Assessment: as it seems that the proposed retention periods are disproportionate, particularly in relation to non-serious offences, the retrospective application of those retention periods to legacy profiles would be equally inappropriate.
    Further information is awaited on the measures proposed to deal with the 500 000 profiles which cannot be linked to a police record.
    h) Proposals in relation to the retention of fingerprints:
    The proposals for retention of fingerprints are the same as those for the retention of DNA profiles. Fingerprints will be retained for 6 years for any recordable offence and 12 years for more serious offences.
    There is no mention in the consultation of any review procedure available in relation to the retention of fingerprints.
    The European Court stated that “…because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the court … considers that …in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life“ (§86). Further, the Court’s finding of a violation relates equally to fingerprints as to DNA samples and profiles.
    Assessment: In the light of the above, the assessments set out in response to the proposals on retention of DNA samples and profiles are also applicable in relation to fingerprints.
    The authorities' comments in this respect would be useful.
    4) Publication and dissemination: The judgment has been widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was disseminated to chief police officers and to chief crown prosecutors.

    The Deputies decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on general measures.

    58243/00 Liberty and others, judgment of 01/07/2008, final on 01/10/2008
    This case concerns a violation of the right to respect for the correspondence of the applicants, both non-governmental organisations working in the field of human rights and established in Ireland or the United Kingdom, due to the unforeseeable character of the legislation in force which conferred on the authorities very wide discretion between 1990 and 1997 to monitor certain electronic communications (violation of Article 8).
    The European Court found that under the Interception of Communications Act 1985 the national authorities (the Ministry of Defence) had virtually unfettered discretion as to what communications could be intercepted. Under Section 6 of the Act, the Secretary of State made arrangements to ensure that intercepted communications were disclosed and reproduced only to the limited extent necessary. Those arrangements took the form of internal regulations, manuals and instructions. However, these were never made accessible to the public. Given this lack of accessibility, the European Court concluded that the domestic law did not indicate with sufficient clarity the scope or manner of exercise of the state’s very wide discretion to intercept communications. The interference was therefore not in accordance with the law.
    Individual measures: The European Court awarded just satisfaction to both applicants in respect of non-pecuniary damage.
    Any correspondence intercepted between 1990 and1997 is now held under the new legislative regime, the Regulation of Investigatory Powers Act 2000 (RIPA) (see below). There are safeguards set out in RIPA and the Interception of Communications Code set out under it, concerning the length of time for which intercepted material may be retained and its destruction.
    Information is awaited as to the specific, applicable safeguards set out in RIPA and the Interception of Communications Code.
    General measures:
    1) Legislative change: The Interception of Communications Act 1985 was replaced by the Regulation of Investigatory Powers Act 2000 as from 2/10/2000. The 2000 Act provides a new regime for the interception of communications.
    2) Publication and dissemination: The European Court’s judgment was sent out to the competent authorities by a circular of 24/06/2009.

    3) Other relevant issues: The question of whether interception of communications under the 2000 Act is in accordance with the Convention is currently before the European Court in the case of Kennedy against the United Kingdom (Application No. 26839/05).
    • Pending the outcome of the proceedings in Kennedy against the United Kingdom, information is awaited on any other measures taken or planned.

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

    - Cases concerning the action of the security forces in the United Kingdom
    28883/95 McKerr, judgment of 04/05/01, final on 04/08/01
    37715/97 Shanaghan, judgment of 04/05/01, final on 04/08/01
    24746/94 Hugh Jordan, judgment of 04/05/01, final on 04/08/01
    30054/96 Kelly and others, judgment of 04/05/01, final on 04/08/01
    43290/98 McShane, judgment of 28/05/02, final on 28/08/02
    29178/95 Finucane, judgment of 01/07/03, final on 01/10/03
    Interim Resolutions ResDH(2005)20, CM/ResDH(2007)73 and CM/ResDH(2009)44
    CM/Inf/DH(2006)4 revised 2, CM/Inf/DH(2006)4 Addendum revised 3 and CM/Inf/DH(2008)2 revised
    These cases concern the death of applicants' next-of-kin during security forces operations or in circumstances giving rise to suspicions of collusion of such forces.
    In this respect, the Court found various combinations of the following shortcomings in the proceedings for investigating deaths giving rise to possible violations of Convention rights (violations of Article 2): lack of independence of the investigating police officers from security forces/police officers involved in the events; lack of public scrutiny and information to the victims' families concerning the reasons for decisions not to prosecute; the inquest procedure did not allow for any verdict or findings which could play an effective role in securing a prosecution in respect of any criminal offence which might have been disclosed; the soldiers / police officers who shot the deceased could not be required to attend the inquest as witnesses; the non-disclosure of witness statements prior to the witnesses' appearance at the inquest prejudiced the ability of the applicants to participate in the inquest and contributed to long adjournments in the proceedings; the inquest proceedings did not commence promptly and were not pursued with reasonable expedition.
    The McShane case also concerns the finding by the Court of a failure by the respondent state to comply with its obligations under Article 34, in that the police had - albeit unsuccessfully - brought disciplinary proceedings against the solicitor who represented the applicant in national proceedings for having disclosed certain witness statements to the applicant's legal representatives before the European Court.
    Measures taken so far: Information on the measures taken so far by the United Kingdom authorities and the general and individual measures closed by the Committee of Ministers can be found in the above mentioned interim resolutions, their appendixes and the Secretariat’s information documents. Information provided by the United Kingdom authorities regarding the outstanding general and individual measures since the adoption of Interim Resolution CM/ResDH(2009)44 at the 1051st meeting (March 2009) is summarised below:
    Individual measures:
    1) Jordan case: At the preliminary hearing on 22/01/2009 the Coroner announced that hearings would be delayed until at least June 2009. Following that announcement, the applicant sought judicial reviews of the Coroner’s decisions in relation to the anonymity of Police Service of Northern Ireland (PSNI) witnesses and compellability of witnesses who are outside the UK. The challenge to the Coroner’s decisions on compellability of witnesses was withdrawn from the court on 5/03/2009. With regard to anonymity, the Coroner has sought the views of the next of kin and the PSNI in relation to the procedure to be adopted for determining applications by witnesses for anonymity and screening. Consequently, the Coroner circulated a protocol for anonymity and screening applications to the legal representatives of interested parties on 22/06/2009. The process of applications (including obtaining risk assessment for witnesses) is expected to take until autumn 2009.
    Regarding the issue of disclosure, on 31/03/2009 the Coroner received a request from the next of kin asking that he seek certain information from the PSNI. He is now waiting for submissions on this issue from both the PSNI and the next of kin. Once these are received, the Coroner may then convene a preliminary hearing before making his decision regarding the request.

    Separately, in relation to a judicial review brought by the next of kin in December 2008 seeking disclosure by the PSNI of certain documents, a further decision is pending in which the judge concerned will seek to clarify matters that have arisen in relation to his original judgment. The applicants sought a further judicial review, challenging the decision of the Coroner not to recuse (remove) himself from the inquest proceedings. The application was heard by the High Court of Northern Ireland on 15 and 16/06/2009. Judgment has been reserved. The inquest is provisionally listed for January 2010.
    2) Case of Kelly and Others: The Historical Enquiries Team (HET) met with representatives of four of the nine families involved on 23/03/2009. The Pat Finucane Centre and Committee for the Administration of Justice were also present. The meeting was very positive. The HET continues to pursue a number of lines of enquiry (including animated reconstruction of the scene, interviews with witnesses and examination of a linked incident) in order to move to delivery of the Review Summary Report. This may take some time to finalise. In response to concerns raised by the next of kin, a pathology review has been commissioned with respect to one of the deaths. The HET continues to liaise with the families and update them on progress.
    3) McKerr case: Following the preliminary hearing on 29/10/2008, the matter of the disclosure of the Stalker/Sampson papers remains under consideration. The case also remains subject to ongoing review by the Office of the Police Ombudsman of Northern Ireland (OPONI). The Ombudsman’s office has access to the Stalker/Sampson papers and are currently examining a substantial amount of sensitive material. Given the complexity of the case the Police Ombudsman cannot give a timescale for completion at this stage.
    4) Shanaghan case: The HET case review is progressing. A positive meeting between the HET and members of the Shanaghan family took place on 9/06/2009. Representatives from the Pat Finucane Centre and the Committee on the Administration of Justice (CAJ) also attended. Furthermore, the OPONI investigation is progressing well. The Shanaghan family and their CAJ representatives are in contact with the Ombudsman’s office. OPONI intends to complete a draft report on the case in the coming months.
    Information is awaited on progress in these investigations. It should be recalled that in its Interim Resolution CM/ResDH(2009)44 the Committee strongly urged the United Kingdom authorities to take all necessary measures with a view to bringing to an end, without further delay, the ongoing investigations while bearing in mind the findings of the Court in these cases.  
    General measures: Regarding the Police Ombudsman’s report of the five-yearly review of her powers and the response of the authorities to its content, the United Kingdom authorities reiterated that the Government’s 12-week consultation on the Police Ombudsman's 5-Year Review concluded on 5/03/2009. The government continue to consider the responses.
    Information is awaited on the government’s response.

    The Deputies decided to resume consideration of these cases at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on individual and general measures.

1 Those items marked with an asterisk * were added after approval of the preliminary 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 The Deputies decided to postpone consideration of this case to the 1072nd meeting (December 2009) (DH).

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

4 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

5 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

6 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

7 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

8 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

9 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

10 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

11 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

12 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

13 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

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

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

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

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

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

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

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

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

22 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

23 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

24 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

25 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

26 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

27 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

28 The Deputies decided to postpone consideration of this case to the first meeting in 2010 (March) (DH).

29 The Deputies decided to postpone consideration of these cases to the first meeting in 2010 (March) (DH).

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

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

32 The Deputies decided to postpone consideration of this case to the second meeting of 2010 (DH).

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

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

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

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

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

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

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

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

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

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

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


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