Ministers’ Deputies
Agenda

CM/Del/OJ/DH(2009)1072 Section 4.1 PUBLIC 21 December 2009

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1072nd meeting (DH), 1-3 December 2009

- Annotated Agenda1
- Decisions

Section 4.1

Public information version

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

Action

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

SUB-SECTION 4.1 – SUPERVISION OF INDIVIDUAL MEASURES ONLY2

- 2 cases against Austria

68354/01 Vereinigung Bildender Künstler, judgment of 25/01/2007, final on 25/04/2007
The case concerns a violation of the applicant association’s right to freedom of expression in that, in February 2000, an injunction was imposed under Section 78 of the Copyright Act prohibiting it form displaying a satirical painting at exhibitions (violation of Article 10).
Individual measures: The European court awarded just satisfaction in respect of pecuniary damage.
Clarification is awaited as to whether the injunction prohibiting exhibition of the painting is still in place.
General measures: All the requisite measures have been taken (see the case of Wirtschaftstrend Zeitschriften-Verlagsgesellschaft m.b.H (No. 3) (66298/01) (Section 6.2)). The Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte, regularly organise training courses for judges and public prosecutors concerning the case-law of the European Court on Article 10.
Assessment: In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of Article 10 of the Convention and the Court’s case-law will be taken into account by the competent authorities in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

3138/04 Arbeiter, judgment of 25/01/2007, final on 25/04/2007
This case concerns a violation of the right to freedom of expression on account of the injunction imposed on the applicant under Article 1330§2 of the Civil Code for making defamatory statements in the print media in 2001 (violation of Article 10).
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damage. The Austrian authorities submit that although the injunction is still in place, it no longer appears to harm the applicant or to be relevant, the prohibition to make the statements in question relating to a specific situation in the past.
Bilateral contacts are under way to clarify whether further measures are needed.
General measures: The requisite measures have been taken (see the case of Wirtschaftstrend Zeitschriften-Verlagsgesellschaft m.b.H No. 2 (58547/00) (Section 6.2). Between 2002 and 2009 the Ministry of Justice, together with the Ludwig Boltzmann Institut für Menschenrechte, organised regular training courses for judges and public prosecutors concerning the European Court’s case law on Article 10. It is planned to continue these training courses, as well as to undertake a study trip to the European Court.
Furthermore, the judgment of the European Court was published in the Newsletter of the Austrian Institute for Human Rights (NL 2007, p. 23, NL 07/1/09; available online at http://www.menschenrechte.ac.at/docs/07_1/07_1_09).
Assessment: In view of these measures taken and the direct effect of the Convention in Austria, it may be assumed that the requirements of Article 10 of the Convention and the Court’s case-law will be taken into account by the competent authorities in the future, thus preventing new, similar violations.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of the outcome of the bilateral contacts on individual measures.

- 3 cases against Belgium

- Case concerning freedom of expression
20477/05 Tillack, judgment of 27/11/2007, final on 27/02/2008
This case concerns a breach of the right to freedom of expression, due to searches and seizures carried out in the home and premises of the applicant, a journalist (violation of Article 10).
In early 2002, the applicant published two articles in a German weekly magazine Stern based on information from confidential documents from the European Anti-Fraud Office (OLAF). Suspecting the applicant of having bribed a civil servant to get these documents, OLAF opened an investigation to identify the informant; but the investigation was not successful. Hence, OLAF lodged a complaint against the applicant with the Belgian judicial authorities. In the proceedings opened following this complaint, on 19/03/ 2004 the applicant’s home and workplace were searched; almost all the applicant’s working papers and tools were seized and placed under seal (16 crates of papers, two boxes of files, two computers, four mobile phones and a metal cabinet). The applicant asked for the return of his belongings, but to no avail.
The European Court considered that although the searches in question had been provided in the Belgian Code of Criminal Procedure and pursued a legitimate aim, they had amounted to interference with the applicant’s right to freedom of expression and that such interference was not “necessary in a democratic society”. The Court noted, among other things, that it was evident that, at the time when the searches took place, their purpose had been to identify the source of the information reported by the applicant in his articles. The measures had therefore concerned the protection of journalistic sources. That being so, a journalist’s right not to reveal her or his sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of the sources, but is part and parcel of the right to information, to be treated with the utmost caution – all the more in the applicant’s case, where he had been under suspicion because of vague, uncorroborated rumours, as subsequently confirmed by the fact that he was not charged. The Court also took into account the amount of property seized.
Individual measures:
Information is awaited on the fate if the objects seized.
General measures: This case presents similarities with the case of Ernst against Belgium (33400/96, section 6.2), in which the authorities reported that in April 2005, a law on the protection of journalistic sources was passed, making it illegal, apart from certain exceptions provided in the law, to seek such information, in particular through searches or seizures.

The Deputies decided to resume consideration of this item at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on individual measures.

      - 2 cases of length of pre-trial investigation and of lack of an effective remedy

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

The Deputies decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on individual measures.

- 3 cases against Bulgaria

30985/96 Hassan and Tchaouch, judgment of 26/10/00 - Grand Chamber
39023/97 Supreme Holy Council of the Muslim community, judgment of 16/12/2004, final on 16/03/2005
The applicants in these two cases are the representatives of the two rival factions which, since the democratic changes of 1989, dispute the direction of the Muslim community in Bulgaria.
The cases concern the authorities’ unjustified interference between 1995 and 1997 in the internal organisation of a divided Muslim community, due to the replacement of its recognised leadership and to manner in which the executive participated in the organisation of a conference aimed to unify this community (violations of Article 9). The first case also concerns the repeated refusal of the Bulgarian Council of Ministers to comply with the Supreme Court's judgments quashing the refusal to register the new leadership of the community (violation of Article 13).
The European Court noted in the first case that the provisions of the Religious Denominations Act of 1949 did not meet the required standards of clarity and predictability and allowed unfettered discretion to the executive in registering religious denominations.
In the second case the Court observed that the authorities did not remain a neutral mediator between opposing groups, but rather insisted on unification despite the decision of the leaders of the applicant organisation to withdraw. In consequence, the authorities' actions (notably those of the Directorate of Religious Denominations, a government agency) had the effect of compelling the divided community to accept a single leadership against the will of one of the two rival leaderships. The leaders elected by the 1997 conference obtained the status of the sole legitimate leadership of the Muslim community and, as a result, the applicant organisation was deprived of the possibility of continuing to manage the affairs and assets of the part of the Muslim community it represented.
Individual measures:
Applicants’ situation: the unification conference held in October 1997 adopted the new statutes of the Muslim denomination and elected a new leadership. Mr Hassan attended the conference and approved the new leadership. These changes have been registered by the government. It may also be noted that, as the legitimacy of this conference was challenged by certain leaders, the division within the Muslim community in Bulgaria continued beyond 1997. Several other national conferences took place, with the task of electing new leaders, the most recent on 19/04/2008. This last conference elected the same mufti as in 1997. On 22/04/2008 the competent court registered the mufti, the new statute, and the new composition of the Supreme Holy Council, as elected at the latest national conference.
• The Secretariat is assessing whether further individual measures are needed.
General measures:
1) Problems related to the arbitrary replacement of the Muslim community’s leadership: The authorities consider that the new Religious Denominations Act, which entered into force in 2003, represents a sufficient guarantee in order to prevent new similar violations in the future. It should be noted in particular that from then on, a judicial body - the Sofia City Court – and no longer the executive, is competent to register religious communities wishing to obtain legal personality.
What is more, the Bulgarian authorities consider that the direct effect of the case-law of the European Court, which is recognised by domestic courts in increasingly varied fields, will prevent new, similar violations to that found in the present case, not least by ensuring that the Religious Denominations Act and the provisions which regulate the registration of religious denominations, are interpreted in conformity with the requirements of the Convention. With a view to facilitating this development, the Centre for training of judges sent the judgment in the case of Hassan and Tchaouch to the competent courts. Finally, the authorities consider that the seminars on the Convention and the European Court's case law organised by the National Institute of Justice are also relevant measures for the execution of these cases (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 9).
2) Authorities’ Interference in the organisation of the unification conference in 1997: The Bulgarian authorities have been invited to consider publishing the judgment in the Supreme Holy Council of the Muslim Community and sending it to the Directorate of Religious Denominations, as well as to the courts and the local authorities competent to register national and local leadership of religious denominations.
Information provided: the European Court’s judgment was sent to the Directorate of Religious Denominations which undertook to send it out to relevant authorities. The delegation indicated that this has been done.

3) Violation of Article 13: following the entry into force of the Religious Denominations Act the Bulgarian Council of Ministers is no longer competent to approve the registration or the modification of the statute of religious institutions. As indicated above, these are issues to be decided by the domestic courts. Furthermore, the remedies available to challenge the decisions of the Sofia City Court seem to be in conformity with the Convention's requirements. The Bulgarian authorities indicated, moreover, that the refusal of the Bulgarian Council of Ministers to comply with the judgments of the Supreme Court in this case is an exceptional occurrence and that court decisions, in particular those concerning the registration of religious denominations, will be respected by the executive in future.
4) Publication: The judgments were published on the website of the Ministry of Justice www.mjeli.government.bg.

The Deputies decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of an assessment of the need to pursue further individual measures.

61360/00 Popov Nedelcho, judgment of 22/11/2007, final on 22/02/2008
The case concerns the infringement of the applicant’s right of access to a court competent to examine the regularity of his dismissal in 1997 from the post of adviser, which he occupied in the Bulgarian Council of Ministers (violation of Article 6§1). At the material time, the applicant could not institute proceedings for improper dismissal as, under Article 360§2 (2) (a) of the Labour Code, domestic courts were not competent to examine claims concerning dismissal from certain posts in the Council of Ministers, in particular those occupied by the applicant. By a decision of 30/04/1998, the Constitutional Court ruled this restriction to be contrary to both the Constitution and Article 6§1 of the Convention.
Referring to the decision of the Constitutional Court, the European Court concluded that the restriction on the applicant’s right of access to a court was not justified.
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
Bilateral contacts are under way to assess the need for individual measures.
General measures: Article 360§2 (2) (a) of the Labour Code was repealed in 2001 in the part concerning the categories of employees referred to in the judgment of the European Court. At present, these categories of employees have access to a court for work-related disputes which concern them.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), to supervise individual measures.

- 2 cases against France

23241/04 Arma, judgment of 08/03/2007, final on 09/07/2007
This case concerns a violation of the applicant’s right of access to a court in 2003 (violation of Article 6§1).
The applicant was manager and owner of a commercial company which was placed in judicial liquidation by a first-instance commercial tribunal. Accordingly the applicant lost the right to act in the name of the company. Under the law applicable at the material time (reformed in 2005), she was not entitled to lodge an appeal in her own right against the liquidation. She nonetheless attempted to do so, but in vain. In fact she might have applied for the designation of an ad hoc nominee to appeal on her behalf, but the European Court expressed doubts as to whether this would actually have been possible given the time-limit of 10 days provided by law.
In the European Court’s view, had the applicant been able to appeal against the liquidation and adduce evidence to the effect that she was in a position to pay the company’s debts, this would have been in the interest both of the company and of the applicant herself, in view of the grave accusations against her personally.
Individual measures: Regarding alleged pecuniary damage, the Court said that it was not in a position to speculate as to what the result of the proceedings would have been in the absence of the violation of Article 6§1 of the Convention. It awarded just satisfaction in respect of non-pecuniary damage. The delegation indicated that from its point of view, no individual measure was necessary.
• The examination of this information is under way.

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

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of an assessment by the Secretariat of the information provided on individual measures.

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

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of an assessment by the Secretariat of the information provided concerning the individual measures.

- 1 case against Georgia

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 at the latest 1086th meeting (June 2010) (DH) in the light of further information to be provided on individual and general measures.

- 7 cases against Italy

30595/02 Bove, judgment of 30/06/2005, final on 30/11/2005
The case concerns the violation of the applicant's right to respect for his family life on account of the failure by the Italian authorities to take adequate measures to implement court decisions ordering the progressive re-establishment of relations between the applicant and his daughter (violation of Article 8).
The child was recognised by both parents at her birth on 19/01/1995. On 22/09/1996, the Naples Youth Court gave custody to the mother, with visiting rights to the father. Because of a dispute between the parents, the court also instructed the social services to supervise the visits. For some time after that, the court extended the applicant's visiting rights on the basis of favourable reports by psychologists and social workers.
However, in June 2000, as an urgent, temporary measure, the same court restricted encounters between the applicant and his daughter, in response to allegations by the child's mother that the father and two of his friends had sexually abused the child.

The proceedings against the applicant's two friends collapsed in April 2001. The paternal grandfather died in January 2003. Later that month, the Naples Appeal Court decided to leave custody with the mother and laid down a timetable for progressive resumption of contact between the applicant and his daughter under structured and controlled conditions.
Despite various judgments ordering progressive resumption of relations between father and daughter, he had not seen her since September 2002: the situation had deteriorated to the point that the relationship no longer existed.
For the European Court, the key issue was whether the national authorities had done all they could to enforce the decision of the Naples Children's Court (§47). It considered that their failure to take action had made the applicant introduce lengthy appeals, which in the end proved ineffective, in order to achieve respect for his rights. The European Court found that the failure to respect his visiting rights from September 2002 onwards constituted a violation of his right to respect for his family life.
Individual measures: In January and March 2006, two meetings took place between the daughter and a judge in the presence of a psychological adviser. The conclusion was that the daughter's refusal to see her father resulted from the negative image inculcated by the mother and that in any case her refusal could not be altered without a change in the parents' attitude. As a result, the Children's Section of the Naples Court of Appeal issued a decree on 22/03/2006 in which it:
- recognised both parents' authority in respect of the child;
- vested sole custody of the daughter with the mother;
- suspended contacts between father and daughter;
- ordered mediation between the parents to be continued.
The court of appeal's decision was primarily motivated by the best interests of the child, which in the event of insuperable conflict may override those of the parent, and has made it necessary to suspend the contacts in order not to harm the child's health and development.
Family mediation developed systematically and regularly for more than a year. Thus in 2006 and 2007, encounters between the parents were held in an increasingly constructive spirit. Both parents have indicated their agreement to continuing in this way.
The applicant's counsel however complained of the court decision suspending father/daughter contacts and indicated that the mother had stopped encounters with the father in the second half of 2007.
A last social service report (14/03/2008) made clear that, since the 2007 summer holidays, only one meeting has taken place between the parents, in November 2007, due to the mother's refusal to take part in the others. At the 14/03/2008 meeting, the mother explained her refusal to continue the mediation process as being the consequence of the attitude of her daughter, who did not feel that her mother was protecting her against her father's attempts to meet her. In this situation, and having regard in particular to the interruption of the mediation process, on 04/03/2009 the Public Prosecutor filed an application under Article 709 ter of the Code of Civil Procedure, which is applicable where the behaviour of one parent is detrimental to the minor or to the correct development of parental authority and allows the modification of decisions previously adopted by the court and the imposition upon the party in default of his or her obligations of a fine or the payment of damages. The Prosecutor’s application was rejected by the Court of Naples on 29/05/2009. The court underlined that the application of Article 709-ter may only be requested by the interested parent and it therefore decided to close the file, considering that no initiative has been taken by the parents so far and the issue has already been regulated by the decree of 22/03/2006. No information has been received so far from the applicant's lawyer on his client's intentions.
• The Italian authorities consider the 2006 judicial decision ordering the suspension of contacts and mediation between the parents as a precondition to their resumption, to be a new decision which has not been dealt with by the European Court. Furthermore, according to the authorities, this decision is in conformity with the Court's case-law (e.g. Covezzi and Morselli, judgement of 24/09/2003, §119, Gianolini, decision of inadmissibility of 29/08/02), since it has been adopted in consequence of the evolution of the situation having regard to the child's best interest; moreover, the applicant never contested it. The enforcement of the 2006 decision being difficult, the authorities consider it is up to the applicant from now on to re-launch proceedings through the different legal instruments at his disposal, such as Article 709ter of the Civil Code on disputes between parents as to the exercise of parental authority, which cannot be raised ex officio.
The Italian authorities also mention that Articles 330, 333, and 336 of the Civil Code concerning parental authority, and also Article 337 on the guardianship judge, who under Article 344 § 2 supervises the enforcement of visiting rights, could also be used under the circumstances of the case.
• Bilateral contacts between the Secretariat and the authorities are under way on this issue.

General measures: The European Court's judgment has been published in Italian in the human rights sector of the website of the Ministry of Justice: <http://www.giustizia.it/pol_internaz/tutela/tutela_du_indice.htm>.

The Deputies decided to resume consideration of this item at the latest at their 1086 meeting (June 2010) (DH), in light of the outcome of the bilateral contacts under way and of further information on individual measures to be provided by the authorities, if appropriate.

- 4 cases concerning in absentia proceedings
56581/00 Sejdovic, judgment of 01/03/2006 - Grand Chamber
25701/03 Kollcaku, judgment of 08/02/2007, final on 08/05/2007
19321/03 Pititto, judgment of 12/06/2007, final on 12/11/2007
14405/05 Zunic, judgment of 21/12/2006, final on 21/03/2007
These cases concern the unfairness of criminal proceedings brought against the applicants in Italy by which they were sentenced in absentia to several years' imprisonment (see “Individual measures”).
The European Court found that there had been denial of justice in these cases, first because it had not been shown that the applicants had been fugitives from justice or had declined to appear or to defend themselves. Subsequently, having been informed of the judgments against them, they had not been able to go before a court to determine the validity of the accusations against them (violations of Article 6§§1 and 3).
Individual measures:
Article 175 the Code of Criminal Procedure (“CCP”), as amended by Act No. 60 of 22/04/2005, combined with the Court of Cassation's case law on the subject (see judgment No. 32678 of 12/07/2006, Somogy, below) constitute the legal framework permitting the re-opening of proceedings which led to a in absentia conviction sanctioned as unfair from the European Court (see under General Measures). Under Article 175 the deadline for introducing applications for suspension of the time-limit for appeal against sentence has been extended to thirty days from the date upon which the accused has had effective knowledge of the judgment or, in case of extradition, from when he is delivered to the Italian authorities.
The Italian authorities consider that the applicants' initiative is a pre-condition for the re-opening of the proceedings or the re-examination of the judgments.
1) Zunic
Prosecution of the applicant: the applicant, a national of Bosnia and Herzegovina suspected of belonging to a clandestine criminal organisation involved in prostitution, was sentenced to 10 years' imprisonment and a fine. In the absence of an appeal, the sentence became final in 1999. During the proceedings, the judicial authorities declared that he was irreperibile, i.e. he could not be found.
Execution of the sentence: in 2002, the applicant was arrested in Croatia under the terms of an international warrant of arrest issued by the Italian authorities and extradited to Italy. He was granted a remission of sentence pursuant to Law No. 241/2006 on remission of sentences.
Reopening of the proceedings: the applicant has brought several appeals against his conviction, including, on 13/02/2004, an incidente d'esecuzione (objection to enforcement) and on 13/05/2005, an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini), but these were all denied. In 2006, the applicant issued a further objection to enforcement, which was denied by the Florence Appeal Court. The applicant seised the Court of Cassation which, in March 2007, decided to annul the enforcement order related to his conviction and ordered his release. The applicant was freed and is subject to no obligation based on his conviction. The competent court (the Court of Lucca) indicated that the applicant did not apply for suspension of the time-limit for appeal pursuant to Article 175 CCP, as modified in 2005. However it cannot be ruled out that, were the applicant to apply, such a remedy might still apply.
Assessment: under these circumstances, no further individual measure seems necessary.
2) Pititto
Prosecution of the applicant: The applicant, an Italian national accused of international narcotics trafficking, could not be found and was sentenced to 21 years' imprisonment. His court-appointed counsel appealed, but the appeal was declared inadmissible the advocate being unable to produce instructions duly signed by the applicant. Consequently the sentence became final as of 1999. The judicial authorities took the view that the applicant had deliberately fled from justice and declared him to be latitante (“on the run”).

Execution of the sentence: The applicant was arrested in Spain in 2000 under an international arrest warrant issued by Italy, and was extradited. On 8/08/2007, following to the order of the Milan Tribunal accepting the applicant’s request for suspension of time-limit for appeal against his sentence in absentia, the Milan Court of Appeal ordered his release, but required him to live in Milan and to report daily to the police.
Reopening of the proceedings: On 30/07/2001 the applicant lodged an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termine) which was dismissed. The applicant subsequently applied again to the Milan Tribunal for the suspension of time-limit for appeal against his sentence in absentia, as provided by Article 175 of the CCP as amended in the meantime. The tribunal decided to accept the request on 19/07/2007. The applicant lodged an appeal on 23/11/2007 and the proceedings are still pending.
Assessment: under these circumstances, no further individual measure seems necessary.
3) Sejdovic
Prosecution of the applicant: the applicant, at the time a national of the Federal Republic of Yugoslavia who was suspected of murder and could not be traced, was sentenced to 15 years, 8 months' imprisonment. In the absence of an appeal, this judgment became final in 1997. He was deemed by the judicial authorities to have wilfully fled from justice and to be “on the run” (latitante).
Execution of the sentence: In 1999, the applicant was arrested in Germany under a warrant issued by the Italian authorities. Extradition was subsequently denied on the ground that Italian law did not provide sufficient guarantees concerning the re-opening of his trial and the applicant was freed. In May 2006, the Italian authorities revoked the international warrant against the applicant and the judgment of the European Court was noted in his criminal record.
Useful information would be to know whether the applicant had the possibility to file a request for the suspension of time-limit for appeal against sentence pursuant to Article 175 of the CCP, as amended by Law No. 60 of 2005.
Just satisfaction: opinions diverge as to the formalities needed to authorise the applicant's counsel to receive payment. The Italian authorities have recently (22/06/2009) confirmed their position, i.e. that documents provided by the applicant’s counsel are not in conformity with the requirements of Italian law. The Secretariat has offered its good offices to assist the parties in finding a solution.
Ongoing bilateral contacts as regards just satisfaction.
4) Kollcaku
Prosecution of the applicant: the applicant, an Albanian national accused of illegal detention of persons, sexual abuse and living on the earnings of prostitutes, became impossible to find and was sentenced to 5 year's imprisonment. In the absence of an appeal, this judgment became final in 1997. The judicial authorities considered that he had wilfully fled from justice, and was “on the run” (latitante).
Execution of the sentence: he was arrested in Rome in 2003.
Reopening of the proceedings: on 10/06/2003, the applicant submitted an incidente d'esecuzione (objection to enforcement), which was denied.
Information is awaited on the current situation of the applicant and as to whether he may apply for suspension of the time-limit for appeal against sentence retroactively.
General measures: These cases present similarities with that of F.C.B. against Italy (Section 6.2).
1) Legislative measures: In 1989, Italy adopted a new Code of Criminal Procedure improving the guarantees in case of in absentia proceedings (see Resolution DH(93)6).
In 2004, in its chamber judgment in the Sejdovic case (10/11/2004), the European Court found the improvement brought about by the introduction of the 1989 Code was insufficient. Some months later Italy amended Article 175 of the CCP (Legislative Decree No. 17 of 21/02/2005, confirmed by Act No. 60 of 22/04/2005), to modify the parameters of the remedy referred to as istanza di rimessione in termini (application for suspension of the time-limit for appeal against sentence). Thus it is possible to appeal against judgments rendered in absentia at first instance even if the normal deadlines have expired.
Under the new law, the time-limit for appeal against a judgment pronounced in absentia is reopened upon request of the accused. There are two exceptions to this rule: where the accused has had “effective knowledge” of the proceedings against him or of the judgment, and when he/she has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been extended from ten to thirty days counting from the date upon which the accused is delivered to the Italian authorities. In its Grand Chamber judgment in the Sejdovic case on 1/03/2005 - after the entry into force of the new law - the European Court considered that it was premature in the absence of any domestic case-law, to pronounce itself on this reform (§§123-124). A bill further reforming in absentia conviction (draft law AC 2664) fell following the dissolution of Parliament in February 2008.

In its recent inadmissibility decision concerning a new application from one of the applicants (F.C.B.), the European Court assessed the reform of in absentia proceedings as described above. The Court considered that the wording of the new Article 175 CCP appears to have filled the gaps it found in the past.
The European Court also recalled that, according to its constant case law, an accused convicted in absentia, who was not given the possibility of appear in court or defend himself, is not entitled to have his conviction erased. But he is entitled to a have a fresh judicial determination, after having been heard, on the validity of the accusations against him. Therefore, the Court concluded that the provision at issue combined with the Court of Cassation's case law on the subject (see judgment No. 32678, Somogy, below) constituted an adequate remedy to guarantee with sufficient legal certainty an opportunity to those convicted in absentia to go before a court and defend themselves in new proceedings
2) Jurisprudential measures: By the combined application of Article 175 CCP and of the Court of Cassation's case law it is now possible to re-examine a judgment having the status of res judicata which led to an in absentia conviction sanctioned as unfair by the European Court. According to the Court of Cassation (judgment No. 32678 of 12/07/2006, Somogy, judgment No. 4395 of 15/11/2006, Cat Berro), an application for suspension of the time-limit for appeal against sentence (istanza di rimessione in termini) is the appropriate means for the re-opening of such proceedings. To this purpose, the Court affirmed that, when a final judgment of the European Court sanctions a violation of Article 6 of the Convention, the national judge cannot dismiss an application for suspension of the time-limit for appeal against sentence on the ground of arguments excluding the unfairness of the proceedings or the fact that the judgment is final in the domestic legal order. In order to achieve this, the Court of Cassation reaffirmed the direct effect of the Convention and of the case-law of the European Court in Italian law, not least in respect of judgments having the status of res judicata. It thus affirmed the retroactive application of Article 175 of the CCP.
The case-law of the Court of Cassation has been applied by the Verona Tribunal in the Ay Ali case (order No. 202/08 of 12/03/2008), thereby indicating that it seems possible to rely directly on the direct effect of the Convention to resolve these cases. By reference to decisions Nos. 3600 (Dorigo) and 32678 (Somogy) of the Court of Cassation, the Tribunal held that the direct applicability in the internal legal order of the European Court's judgment finding the violation of Article 6 means that the applicant had the right to ask for the re-opening of the procedure or for the revision of the judgment; as a consequence of this right the conviction was not definitive and thus unenforceable, and detention wais illegal. The Tribunal indicated that the remedy at the applicant's disposal in the domestic legal order is the suspension of time-limit for appeal against sentence as provided by Article 175 CPP. It noted that in the event of retroactive application, the thirty days available for applying run as from the date in which the European Court's judgment become final.

The Deputies:
1. noted that no further individual measure seemed to be required for the execution of the Zunic and Pititto judgments;
2. noted that no further general measure seemed to be required for the execution of these judgments;
3. decided to resume consideration of the Zunic and Pititto cases once the just satisfaction has been paid, with a view to examining the possibility of closing them;
4. decided to resume consideration of the other cases at the latest at their 1086th meeting (June 2010) (DH), in the light of the information to be provided on individual measures.

    - 2 cases concerning the failure or substantial delay by the administration in abiding by final domestic judgments ordering the demolition of buildings

77606/01 Paudicio, judgment of 24/05/2007, final on 12/11/2007
6870/03 Vitiello, judgment of 17/07/2007, final on 17/10/2007
These cases concern a breach of the applicants’ right to the peaceful enjoyment of their possessions on the ground of the sustained failure by administrative authorities, without any legal basis, to enforce final judicial decisions ordering them to proceed to the demolition of illegal buildings (violations of Article 1 of Protocol No. 1).
Individual measures: As regards pecuniary damages, “the Court held that, taking into account the circumstances of the case and leaving aside the question of the demolition, pecuniary damages would constitute adequate compensation for the prejudice suffered by the applicant. In this respect, the Court notes that the criminal courts had definitively determined that the applicant had suffered pecuniary damage as a consequence of the illegal construction built by the neighbours… However, taking into consideration that, in conformity with the domestic courts’ decision, the applicant may bring civil proceedings to claim pecuniary damages, the Court considers there is no need for it to award a sum as pecuniary damages” (§59 of the Paudicio judgment, as well as §53 of the Vitiello judgment). The Court awarded the applicant just satisfaction in respect of the non-pecuniary damages sustained.

The government pointed out (23/06/2008) that, in pursuance of Article 46 of the Convention, the demolition of the illegal building did not follow from the European Court judgment by way of individual measure. It also recalled that the European Court, under Article 41, concluded that pecuniary damages to be obtained through proceedings before domestic civil courts constituted adequate compensation for the prejudice suffered by the applicants.
Assessment: In application of the subsidiarity principle, it is up to national authorities to compensate the prejudice suffered by the applicants in the framework of civil proceedings. However, according to Article 46 of the Convention, the respondent state has an obligation, beyond the payment of just satisfaction, to adopt under the Committee of Ministers’ supervision, individual measures with a view to putting an end to the violations and erasing the consequences, if possible by restitutio in integrum. In cases where a violation has been established on account of the failure to enforce a domestic judgement, restitutio in integrum is, in principle, achieved when this judgment is executed.
Information is needed on the modalities envisaged by the authorities to enforce the final judicial decisions at issue in the present cases.
General measures: See the case of Antonetto (Final Resolution CM/ResDH(2009)86).
A summary of the judgments has been published in Italian in the database on the European Court of Human Rights database of the Court of Cassation (www.italgiure.giustizia.it). This web site is widely used by all those who practice the law profession in Italy, civil servants, lawyers, prosecutors and judges alike.
Assessment: no further individual measure seems necessary.

The Deputies decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of further information to be provided on individual measures, in particular the modalities envisaged by the authorities to enforce the final judicial decisions at issue in these cases.

- 1 case against Lithuania

11529/04 Baškienė, judgment of 24/07/2007, final on 10/12/2007
The case concerns the violation of the applicant’s right of access to a court and the excessive length of civil proceedings, as domestic courts failed to decide on the applicant’s claims after more than seven years of proceedings (double violation of Article 6§1).
In 1996 the applicant initiated a shareholder action against a company of which directors were subject to criminal proceedings for fraud and embezzlement. Considering that the applicant’s interests were at stake in both sets of proceedings, the domestic courts joined them together. Ultimately, in 2003 the courts convicted the directors but found no causal link between their convictions and the applicant’s interests as a shareholder. As a result, the courts left her civil claims unexamined, finding that she could always pursue them through separate civil proceedings.
The European Court noted that the applicant’s civil claims had been joined to the criminal proceedings at the initiative of the domestic courts. The applicant thus could not have reasonably been expected to bring civil proceedings independently of the criminal case. The Court was particularly struck by the fact that the applicant had to wait more than seven years to be finally told that it was not appropriate to examine her civil claims along with the criminal case (§81 of the judgment).
Individual measures: The European Court considered that “the applicant may be considered to have suffered some non-pecuniary damage as a result of the breach of her rights which cannot be compensated by the Court’s finding of a violation alone”. The proceedings being closed, no further individual measure seems necessary in respect of their length.
Information provided by the Lithuanian authorities (20/11/2008, 29/09/2009 and 05/10/2009): The applicant brought a civil action before the Vilnius Regional Court asking for damages resulting from the fact that her civil claims had never been examined by domestic courts. The applicant’s case was rejected on the ground that she had already been granted just satisfaction by the European Court. The appeal lodged by the applicant was dismissed on 31/03/2009. On 22/06/2009, the applicant filed an appeal on points of law. The case is currently pending before the Supreme Court.
Assessment: It appears that the just satisfaction awarded by the European Court covers only the non-pecuniary damages suffered by the applicant. However, the applicant’s civil claims still remain unexamined by the domestic courts.
Information is awaited on any individual measures that the authorities deem appropriate under these circumstances, to give the applicant proper redress.

General measures:
1) Right of access to a Court:
Information provided by the Lithuanian authorities (20/11/2008): The European Court’s judgment has been translated into Lithuanian and placed on the website of the Ministry of Justice. It was sent out to the relevant state authorities involved in the present case as well as to all judicial authorities together with an explanatory note on the violation found.
Assessment: It seems that the publication and dissemination measure would be sufficient to prevent similar violations.
2) Excessive length of proceedings: General measures have already been taken, see the case of Girdauskas (Resolution CM/ResDH(2007)127).

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

- 1 case against Luxembourg

302/04 Lemmer and Neiertz, judgment of 13/05/2008 – Friendly settlement
This case concerns the length of civil proceedings which began in 1990 and were still pending when the friendly settlement was reached (complaint lodged under Article 6§1).
The respondent State undertook, first, to pay a certain amount to the applicant and, second, to take the necessary measures to make sure that the proceedings reach an end as soon as possible, taking into account the requirements of the proper administration of justice.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), with a view to examining the progress of the national proceedings.

- 1 case against Poland

34049/96 Zwierzyński, judgment of 19/06/2001, final on 19/09/2001 and of 02/07/2002, final on 06/11/2002 (Article 41), revised on 06/03/2007, final on 24/09/2007
The case concerns the excessive length of civil proceedings lodged by the State Treasury in 1992 to acquire the property title to a building illegally expropriated in 1952 from the applicant’s father through adverse possession. When the European Court delivered its judgment, the case was still pending before the Łomża District Court and had already lasted, within the meaning of the Convention, 8 years and 1 month (violation of Article 6§1).
The case also concerns an infringement of the applicant’s right to the peaceful enjoyment of his possessions, due in particular to the state authorities’ continued occupation of the building at issue despite a decision of the Supreme Administrative Court of 1993 quashing the expropriation on account of a manifest mistake in law (violation of Article 1 of the Protocol No. 1). The state’s refusal to restore the property to the applicant was related to the fact that the State Treasury, acting on behalf of the regional police authority (the current occupier of the building), brought an action before the civil courts asserting acquisition of the title to the property through adverse possession. The action was allowed in 1995. However, in 1996 the Supreme Court remitted the case upon the cassation appeal filed on points of law which stated that there could be no possession in good faith where an expropriation decision had been set aside and that, accordingly, the applicant had retroactively recovered title to the property for the entire period during which the premises had been occupied by the state. The proceedings were pending when the European Court adopted its judgment.
In 1997, the State Treasury was introduced into the land register as the owner of the property. In addition, in 1997 and in 2000, the Supreme Court decided to reopen, twice, the proceedings concerning the division of inheritance of the applicant’s late father and contesting his property rights to the building at the time of its expropriation. The reopening procedures were instituted upon an extraordinary appeal of the Minister of Justice and followed a request for reopening made by third parties claiming to have been advised to do so by the regional police authority occupying the premises in question. Those proceedings were also pending when the European Court adopted its judgment.

The European Court rejected the government’s arguments that the applicant had no “possession” and was not an owner within the meaning of the Convention (§§ 59-66). It concluded that, following the Supreme Administrative Court’s decision of 1993 restoring, with effect ex tunc, the property rights of the applicant’s father, the state authorities had done everything possible to delay the return of the property to the applicant. In addition, the European Court pointed to the fact that in 1994 and in 1998 (after the remittal of the case by the Supreme Court) the domestic courts confirmed that the applicant was heir to his parents’ property (§§ 14 and 26). All subsequent court proceedings brought directly or implicitly by the authorities to challenge the applicant’s property rights were deprived of any reason of “public interest” serious enough to justify the interference caused. Since the setting aside of the expropriation decision in 1993 the state had acted only as one of the parties in a civil-law relationship and failed to strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (§§ 72-74).
Developments following the European Court’s judgments:
1) Domestic proceedings pending during the adoption of the ECHR judgments: Following the reopening in 2000 of the proceedings concerning the division of the applicant’s father’s estate, on 30/04/2003 the Olsztyn Regional Court issued a judgment concluding that the applicant’s father was not the owner of the property in question. The judgment is final.
2) Requests for the revision of the judgment: On the basis of the outcome of the reopened inheritance proceedings, the Polish government twice requested the revision of the European Court’s judgments (on the merits and on Article 41). They argued that the applicant could not be considered as the owner of the property and, consequently, that he was not entitled to the restitution of the property or to just satisfaction granted by the Court. The government asked the Committee of Ministers to postpone the examination of the case until the outcome of this revision procedure. The government’s requests for revision were rejected by the European Court on 22/01/2003 and 24/06/2003. A third request for revision, submitted to the European Court on the same grounds on 19/01/2004, was rejected on 28/01/2005. The Polish authorities also asked the Committee of Ministers to adjourn the discussion of the case until the European Court’s position was clearly and comprehensively reconsidered.
On 22/04/2005 the government made a fourth request for revision, which was rejected by the European Court by a final judgment of 06/03/2007. The Court found that the decision of 30/04/2003 could not be regarded as a “new fact unknown to the parties at the time of the adoption of the judgment”, within the meaning of Rule 80 of the Rules of the Court. It further recalled that the modalities of restoring the property in question and payment of the amounts awarded in the judgment under Article 41 (of 02/07/2002) are valid and remain exclusively within the competence of the Ministers’ Deputies (§22 of the judgment of 06/03/2007).
The Polish government’s request for the referral of the judgment of 06/03/2007 to the Grand Chamber was rejected on 24/09/2007 as filed out of time.
Individual measures:
1) Violation of Article 6§1: The proceedings for acquisition of the title to the property through adverse possession, at the origin of the violation of Article 6§1, ended on 21/09/2001, when the Łomza District Court dismissed the Treasury’s action.
2) Violation of Article 1 of Protocol No. 1:
a) Article 41 judgment and the state of its execution (payment of just satisfaction, restitution)
Under Article 41 of the Convention, the European Court decided that the respondent state had to restore the property to the applicant within three months from the date at which the judgment became final. Failing such restitution, the state had to pay the applicant, within the same time-limit, a sum of money corresponding to the value of the building, i.e. 60 500 euro (section 1 of the operative part of the judgment of 02/07/2002). Moreover, the state had to pay in any case 100 000 euro for the pecuniary damage caused by the loss of use of the property. The time-limit expired on 06/02/2003.
In 2002, the Polish delegation informed the Committee of Ministers that the government had taken steps to return the building at issue to the applicant, who refused it however, preferring to be paid the pecuniary damage allowed by the Court. A notarised deed was drawn up to this effect.
On 14/12/2007, the applicant received the amount of 100 000 euro in respect of the pecuniary damage caused by the loss of use of the property.
In 2008 the government expressed an intention only to grant the applicant access to the building and excluded the payment of the outstanding amount of compensation, given the current legal status of the property.

b) Situation of the applicant and of the contested property at the domestic level
The property is currently considered to constitute a part of the estate of S., a brother of the applicant’s paternal grandmother who died in 1937. It is possible that the applicant inherits a part in the succession of S., through his grandmother who had inherited a third part in this estate.
Concerning the legal status of the property, the land register identifies the State Treasury as its current owner. However, a warning in this register indicates that there is a discrepancy between the “real” legal status and legal status resulting from the register because of the applicant’s and his sister’s claims on the property (according to a copy from the land register of 30/07/2008, provided by the Polish authorities).
The applicant paid taxes on the property until 2006.
By letters of 19/12/2009, 25/03/2009 and 20/04/2009 the applicant complained of the failure to execute the European Court’s judgment in his case.
Bilateral contacts are under way between the Secretariat and the Polish authorities regarding the outstanding measures envisaged for the execution of the judgments here at stake (see in particular Section 1 of the operative part of the judgment of 02/07/2002). A letter is being sent to the Polish authorities in order to clarify the applicant’s situation and to reflect on the individual measures to be adopted in the circumstances of the case.
General measures:
1) Violation of Article 6§1: the case presents similarities to the other cases relating to the excessive length of civil proceedings (including Podbielski (27916/95), Section 4.2,).
2) Violation of Article 1 of Protocol No. 1: The judgment of the European Court was communicated to the Ministry of Justice for dissemination to courts, and to the Ministry of Internal Affairs for dissemination in particular to the police. It has also been distributed to judges and prosecutors.
Moreover, the judgment was published in the Bulletin of the Council of Europe Information Office in Warsaw, as well as on its website.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), for consideration of individual measures.

- 6 cases against Romania

75101/01 Grecu, judgment of 30/11/2006, final on 28/02/20073

6817/02 Iordache, judgment of 14/10/2008, final on 14/01/2009
This case concerns the lack of access to a court due to substantial court fees (violation of Article 6§1), the automatic prohibition on the exercise of parental rights imposed on persons serving a prison sentence and the absence of effective remedies in this respect (violation of Articles 8 and 13).
Individual measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.
Information is expected on the current situation of the applicant as regards his parental rights.
General measures: This case presents similarities to the Sabou and Pîrcălab group (46572/99) (Section 6.2) and the Weissman and others group (63945/00) (Section 3).

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

      - Case concerning freedom of expression (disproportionate criminal conviction for insult)

5945/03 Barb, judgment of 7/10/2008, final on 07/01/2009
This case concerns the applicant's conviction for insult in 2000 under Article 205 of the Criminal Code for having published an article criticising a public official (violation of Article 10).
The European Court found that the fine imposed on the applicant had been disproportionate given the legitimate aim pursued and that the domestic courts had not provided sufficient justification.
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary damage, corresponding the fine he paid, and in respect of non-pecuniary damage.
Information is expected on the current situation of the applicant, in particular whether he still suffers any negative consequences of the sanction imposed.
General measures: This case presents similarities to the Dalban group (28114/95) (section 6.2).

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

- 3 cases concerning the annulment of final court decisions
16382/03 Bota, judgment of 4/11/2008, final on 4/02/2009
17771/03 Precup, judgment of 27/01/2009, final on 27/04/2009
4234/04 Sergiu Popescu, judgment of 16/12/2008, final on 16/03/2009
These cases concern the unfairness of criminal proceedings resulting from the annulment of final judgments by the Supreme Court, in 2002 and 2003, following applications for nullity lodged by the Procurator General (violation of Article 6§1).
In the Bota case, by a final judgment of 25/05/2000, the applicant was acquitted of several charges. Following the annulment of this decision, he was sentenced to two years’ imprisonment, suspended.
In the Sergiu Popescu case, by a final judgment of 28/05/2002, the applicant was acquitted of making a false statement in his capacity as an expert in course of certain civil proceedings. Following the annulment of this judgment, the applicant was sentenced to a year's imprisonment, suspended.
In the Precup case, the applicant was acquitted of manslaughter by a final judgment of 29/05/2000. Following the annulment of this judgment, the applicant was sentenced to six months’ imprisonment, which was subject to a group pardon.
The Bota case also concerns the annulment of a final judgment in civil proceedings following an application for nullity lodged by the Procurator General (violations of Article 6§1 and Article 1 of Protocol No. 1).
Individual measures:
1) Bota: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage.
2) Sergiu Popescu: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage suffered. It further observed that following the Supreme Court's decision of 3/07/2003, which annulled his acquittal, the applicant had not been able to continue his activities as an expert. The European Court therefore considered that insofar as the applicant continues to suffer professional consequences resulting from the judgment at issue, the authorities should take the necessary measures to remedy this situation.
3) Precup: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage suffered.
Information is expected on the current situation of the applicants and possible measures taken or envisaged to remedy the consequences of their convictions.
General measures:
1) Annulment of judgments in criminal proceedings: The European Court noted that at the material time, final judicial decisions could be revised following an application for nullity lodged by the Prosecutor General. However, it further noted that the provisions of the Code of Criminal Procedure related to the application of nullity had been repealed by Law No. 576/2004, published in the Official Journal of 20/12/2004.
Assessment: No further measure appears necessary.

2) Annulment of a judgment in civil proceedings: The Bota case presents similarities to that of Brumărescu (Resolution CM/ResDH(2007)90).

The Deputies decided to resume consideration of these items at the latest at their 1092nd meeting (September 2010) (DH), in the light of information to be provided on individual measures.

- 3 cases against the Russian Federation

42086/05 Liu and Liu, judgment of 06/12/2007, final on 02/06/2008
The case concerns a deportation order issued in 2005 (not executed to date) against the first applicant, a Chinese national.
The first applicant has been married since 1994 to a Russian national (the second applicant) and had a daughter and a son with her, both Russian nationals. He lived legally in Russia from 1994-6 and 2001 to August 2003 on the basis of renewable work permits. His applications for a residence permit were repeatedly refused on the account that he presented a risk for national security. The local police department therefore initiated deportation and administrative removal proceedings against him. The administrative proceedings opened under the Administrative Offences Code (unlawful residence on Russian territory) were finally discontinued by the courts. At the same time, the deportation proceedings launched under the Entry Procedure Act and the Instruction of the Ministry of Internal Affairs resulted in an enforceable deportation order by the Federal Migration Service. The latter proceedings were conducted without judicial scrutiny.
The European Court noted that Russian law establishes two parallel procedures for expulsion of foreign nationals whose residence in Russia has become unlawful. In one of these procedures, deportation of a foreign national may be ordered by the executive without any form of independent review or adversarial proceedings, while the other procedure (administrative removal) provides for judicial scrutiny. Domestic law permits the executive to choose between these procedures at their discretion. The enjoyment of procedural safeguards by a foreign national is thus dependent on the executive's choice (§66 of the judgment). In these circumstances, the European Court found that the legal provisions on the basis of which the first applicant’s deportation was ordered did not provide for the adequate degree of protection against arbitrary interference and thus did not meet the Convention’s “quality of law” requirements. It accordingly concluded that in the event of enforcement of the deportation order against the first applicant there would be a violation of Article 8.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicants. However, it appears from the judgment that the deportation order is still valid and enforceable and that deportation is imminent (§ 51 of the judgment).
• Information provided by the Russian authorities at the 1035th meeting (September 2008): On 4/08/2008 the Federal Migration Service annulled its decision of 22/03/2005 on the undesirability of the first applicant’s presence on the territory of the Russian Federation and the deportation order of 12/11/2005 delivered against him.
On 2/12/2008 the applicants lodged an application with the Central District Court of Khabarovsk seeking the reopening of proceedings on the basis of newly discovered circumstances. Following the European Court’s judgment, they asked the court to declare unlawful the refusal to grant a residence permit to the first applicant, to oblige the competent authorities to deliver him such a permit and to compensate the non-pecuniary damage sustained.
On 22/12/2008 the judge examining the case wrote to the Head of the Directorate of the Federal Migration Service for Khabarovsk region inviting him to secure the first applicant’s presence on the territory of the Russian Federation so as to allow him effectively to exercise his rights until a final judicial decision is taken in his case.

On 6/02/2009, the representative of the Directorate of the Federal Security Service for the Khabarovsk region lodged a request to transfer the case to the Khabarovsk Regional Court which, according to the Russian Code of Civil Procedure, is the only level of jurisdiction competent to examine classified information, in particular that related to state secrets. This request was granted by the Central District Court and the case was sent to the Regional Court. On 17/03/2009 the Khabarovsk Regional Court dismissed the applicants’ claim. The Regional Court considered the classified information provided by the Federal Security Service and concluded that the refusal to grant a residence permit to the first applicant was lawful and justified. It appears that the applicants were present at the hearing. On 23/03/2009 the applicants appealed against the judgment to the Supreme Court of Russia. On 20/05/2009 the Supreme Court dismissed the applicants’ appeal and confirmed that the refusal to grant a residence permit to the first applicant was lawful and justified. It appears that the applicants filed an application for supervisory review of the judgment of 17/03/2009.
Information is awaited on the applicant’s current situation.
The Russian authorities also indicated that the judgment and the Committee of Ministers’ decisions had been widely disseminated to all competent authorities, such as courts, prosecutors, the Ministry of the Interior and the Federal Migration Service, in particular to their regional departments in the Khabarovsk region.
General measures: General issues regarding the legislative and regulatory framework governing deportation are examined in the Bolat case (14139/03, 1078th meeting, March 2010).
The Russian authorities indicated that the judgment of the European Court was sent out to all territorial departments of the Federal Migration Service, by a circular letter of its Director, and to all courts.
By a letter from the Russian Government Agent, the judgment was also sent to the President of the Supreme Court, to the Prosecutor General’s office, to the Constitutional Court and to the Representative of the President of the Russian Federation in the Dalnevostochniy federal district.
The judgment was translated into Russian and published in the Bulletin of the European Court (No. 6, 2008).

The Deputies decided to resume consideration of this case at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

6293/04 Mirilashvili, judgment of 11/12/2008, final on 05/06/2009
The case concerns the unfairness of the criminal proceedings which resulted in the applicant’s being convicted in November 2003 and sentenced to eight years’ imprisonment for organising the abduction of several people who had been implicated in the kidnapping of his father. The conviction was mainly based on witness statements, experts’ opinions and material evidence, such as audio-tapes and documents.
As regards the recordings of telephone conversations, the domestic courts refused to disclose to the defence the documents authorising the wiretapping, on the ground that the Operational and Search Activities Act of 1995 prohibited in absolute terms the disclosure of documents relating to operational and search activities. This Act considerably limits the judge’s role, since he is not allowed to analyse whether those materials would have been of any assistance to the defence, and whether their disclosure would have harmed any identifiable public interest. This being so, the European Court found that the decision to withhold materials relating to the surveillance operation was not accompanied by adequate procedural guarantees and, furthermore, was not sufficiently justified.
As regards the testimony of key witnesses no longer present in Russia, the domestic courts refused to admit written statements from them obtained by the defence. In these statements, the witnesses retracted the testimony they had previously given to the prosecution. The domestic courts considered that the law prohibited defence lawyers from questioning witnesses after they had been questioned by the prosecution and outside of the “proper” procedure of collecting of evidence prescribed by law. The European Court concluded that, in the particular circumstances of the case, where the applicant was unable to examine several key witnesses in court or at least at the pre-trial stage, such refusal was not justified.
The Court therefore considered that the proceedings in question, taken as a whole, had not satisfied the requirements of a “fair hearing” since the defence was placed at a serious disadvantage vis-à-vis the prosecution in respect of the examination of a very important part of the evidence (violation of Article 6§1).
Individual measures: It transpires from the European Court’s judgment that the applicant is currently serving a prison sentence in a correctional colony in the region of Orenburg.
Information provided by the Russian authorities at the 1065th meeting (September 2009): The applicant has so far lodged no application for the reopening of proceedings.

Information is awaited as to whether the applicant has subsequently requested the reopening of proceedings.
General measures: (No examination envisaged at this meeting):The judgment of the European Court has been sent out to the Prosecutor General’s Office, to the military court of the Leningrad district, to the Constitutional Court of the Russian Federation, to the Supreme Court of the Russian Federation, to the Ministry of the Interior of the Russian Federation, to the Investigating Committee with the Prokuratura of the Russian Federation and the Representative of the President of the Russian Federation in the North Western district.
On 28/08/2009, the judgment accompanied by a letter of the Vice-President of the Supreme Court, President of the Military Chamber, was sent to all military courts.
On 20/08/2009, the judgment was disseminated, by a circular letter of the Main Military Prosecutor of the Russian Federation, to all military prosecutors.
On 18/08/2009, the judgment was sent together with a letter of Deputy Head of the Investigating Committee with the Prokuratura to all its regional departments.
On 4/09/2009, the judgment was sent by a circular letter of the Deputy Head of the Investigating Committee of the Ministry of the Interior to all its regional departments.
The authorities are invited to provide an action plan / action report.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH) in the light of information to be provided on individual measures and of an action plan / action report to be provided on general measures.

42454/02 Menchinskaya, judgment of 15/01/2009, final on 15/04/2009
The case concerns the violation of the principle of equality of arms due to an intervention by the prosecutor, unjustified by any special circumstance, under the former Code of Civil Procedure, in appeal proceedings between the applicant and a state body concerning the delayed payment of unemployment benefits to the applicant (violation of Article 6§1).
Individual measures:
Information submitted by the Russian authorities at the 1065th meeting (September 2009): The applicant has so far lodged no application to reopen proceedings with the domestic courts.
Information is awaited as to whether such an application has subsequently been lodged by the applicant.
General measures (No examination envisaged at this meeting): The judgment of the European Court has been sent out to the Prosecutor General’s Office, to the Supreme Court of the Russian Federation, to the Krasnoyarsk Regional Court, to the Constitutional Court of the Russian Federation, to the Supreme Arbitration Court and to the Representative of the President of the Russian Federation in the Siberian federal district.
By letter of 21/07/2009 of the Vice-President of the Supreme Court of the Russian Federation, the judgment was send to all Presidents of Regional Courts. On 17/08/2009, the judgment was discussed at the meeting of the judicial board of the Krasnoyarsk Regional Court.
Information about the judgment was published in the Bulletin of the European Court (Russian version).
• More details are awaited in this respect as well as an action plan / action report.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures, namely the reopening of the proceedings at issue and in the light of an action plan / action report to be provided on general measures.

- 2 cases against the Slovak Republic

8607/02 Cabala, judgment of 06/09/2007, final on 06/12/2007
This case concerns a failure promptly to examine the applicant’s requests for release from detention on remand lodged in 2001 (violation of Article 5§4).
The case also concerns a violation of the applicant’s right to adversarial proceedings in respect of the applicant's request for release (violation of Article 5§4) and the excessive length of criminal proceedings instituted against him in 1999 (violation of Article 6§1).
Individual measures: The applicant was released on 31/07/2002 and the European Court awarded him just satisfaction in respect of the non-pecuniary damage sustained. The criminal proceedings at issue were still pending when the European Court delivered its judgment (§ 20).
Information provided by the Slovakian authorities (22/07/2008 and 28/04/2009): The criminal proceedings against the applicant are still pending. The main hearing scheduled for 22/06/2008 had to be adjourned due to the applicant's challenge against the Nitra District Court judge for bias. On 09/09/2008 the case was transferred to another judge, and a main hearing was scheduled for 04/10/2008. Following two failures on the applicant’s behalf to attend scheduled hearings, the main hearing has been adjourned sine die and psychiatric experts have been appointed to determine whether the applicant is able to participate in proceedings.
Information is awaited on the current state of the domestic criminal proceedings and if need be, their acceleration.
General measures:
1) Violations of Article 5§4 due to the lack of prompt examination: The European Court noted that the delays in examining the applicant’s requests for release were due, amongst others things, to the domestic courts' failure to secure service of their decisions. It emphasised that, according to the binding provisions of national law, the applicant was barred from submitting new applications for release, even if he relied on new facts, as long as his earlier applications were still pending.
• Information provided by the Slovak authorities on 26/02/2009: Section 2(6) of the Code of Criminal Procedure (301/2005) provides that the authorities are obliged to give priority to detention cases and deal with them quickly. Under Section 79(3) of the Code of Criminal Procedure, a detainee is entitled to apply for release at any time. The judge considering such applications shall rule on an application without delay.
The case-law of the Slovak Constitutional Court interprets the obligations under the Criminal Code and the Constitution in light of the Convention case-law and requires the relevant authorities to deal with a request for release from detention as speedily as possible.
The Slovak authorities consider that this violation arose from a failure of the domestic courts to meet their obligations under not only the European Convention but also the Slovak Constitution, Code of Criminal Procedure and case-law of the Constitutional Court. All the domestic courts concerned were familiarised with the European Court's judgment.
Assessment: in light of the-case law of the Constitutional Court and the wide dissemination of the judgment, no further measures appear necessary.
2) Violation of Article 5§4 due to the lack of adversarial proceedings: See the Nešták case (65559/01) (Section 6.2).
3) Violation of Article 6§1: See the Pavlík case (74827/01) (Section 6.2).
4) Publication and dissemination:
• Information provided by the Slovak authorities on 18/03/2008: The judgment was translated and published in Justičná Revue No 12/2007. On 21/12/07, the judgment was sent out to all regional courts and to the Supreme Court by a circular letter from the Minister of Justice. The presidents of the regional courts and the President of the Criminal Division of the Supreme Court have been asked to notify the judgment to all judges in the regional and district courts, as well as those in the Supreme Court dealing with criminal cases.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

7205/02 Stanková, judgment of 09/10/2007, final on 31/03/2008
This case concerns an interference with the applicant’s right to respect for her home (violation of Article 8).
In 1999 the applicant was evicted from her flat where she had lived with her father since 1992, under the relevant provisions of Slovakian law (the Civil Code and Executions Order 1995). The flat was leased by the applicant’s father. Following his death the local authority determined that the tenancy rights had not passed to the applicant under the provisions of the Civil Code. No alternative flat was offered to her. The applicant refused to move out so the local authority brought eviction proceedings against her which were enforced on 18/06/99. The applicant challenged the proceedings in the Constitutional Court which found that the local authority’s decision to evict the applicant was in breach of the Constitution (right to protection of private and family life). The Constitutional Court found that the criteria of the Civil Code regarding the inheritance of the flat had not been met but that as no alternative accommodation was offered to the applicant, the eviction proceedings were disproportionate and did not pursue a legitimate objective. However, at that time, the Constitutional Court could not provide redress for any violations it found.
The European Court agreed with the Constitutional Court’s assessment and concluded that the interference complained of was “not necessary in a democratic society”.
Individual measures: The European Court awarded the applicant just satisfaction for non-pecuniary damage. It did not award any pecuniary damages as the claim for pecuniary damages was not shown to be linked to the violation.
The applicant was evicted from the flat on 18/06/99. She currently lives in her ex-husband’s flat with her son, who inherited the flat from his father. In its ruling the Constitutional Court stated that it was the authority’s duty to provide redress to the applicant (as the Constitutional Court could not at the material time).
On 02/09/2008 the Slovak authorities stated that the applicant was registered on a list of 861 persons seeking tenancy of a communal flat in the Poprad Municipality. There is no communal flat currently available. Under Section 228(1)(d) of the Civil Procedure Code a party to proceedings may apply for re-opening of proceedings, if the European Court has found a violation, the consequences of which have not been duly remedied by the award of just satisfaction. Under section 230(1) of that Code, a petition for the reopening of proceedings must be filed within three months from the day upon which the applicant became aware of the reason for such reopening, or the date from which it was possible to apply for such a reopening.
Assessment: it does not appear that the applicant has been provided with alternative accommodation. However, it was open to her to apply for reopening of the proceedings concerning her eviction from her flat.
Information is awaited as to whether the applicant has applied to reopen the proceedings.
General measures:
1) Application of Article 3(1) of the Civil Code: Article 3(1) of the Civil Code permits the granting of relief from hardship in justified cases by ensuring that alternative accommodation should be provided to persons who have been ordered to move out of a flat. The European Court (in agreeing with the Constitutional Court’s assessment) considered that the lower courts had not correctly applied Article 3(1) of the Civil Code when considering the circumstances of the applicant.
2) Consequences of rulings of the Constitutional Court: Following an amendment to the Constitution of the Slovak Republic, as in force from 01/01/2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that a complaint is justified, to order the authority concerned to take the necessary action. It may also grant adequate financial satisfaction to the person whose fundamental rights and freedoms have been violated.
3) Publication and dissemination of the judgment of the European Court: The judgment has been translated and published in Justičná Revue 12/2007. On 31/07/2008 the judgment was distributed to all regional courts under cover of a letter from the Agent of the Slovak Republic before the European Court. The presidents of regional courts have been asked to bring the judgment to the attention of all judges and district courts within their jurisdiction.
Assessment: no further measures appear necessary

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

- 1 case against Spain

1483/02 Panella Puig, judgment of 25/04/2006, final on 25/07/2006
This case concerns the violation of the presumption of the applicant's innocence. In 1992 the Constitutional Court overturned military proceedings which had resulted in the applicant's serving a prison term. The applicant lodged a request for compensation. This request was rejected by the Ministry of Justice and the administrative courts on the basis of doubts as to the applicant's guilt, his conviction having been set aside on account of a violation of the principle of the presumption of innocence in respect of the inadequacy of the evidence adduced against him (violation of Article 6§2).
The European Court found that that national authorities had applied Article 394(1) of the Structural Law on the Judiciary which provides that entitlement to compensation in respect of provisional detention is limited to those who are acquitted or those against whom proceedings have been definitively dropped because the accusations against them proved groundless. The Court recalled that it was not its role to replace domestic courts and that it could not be asked to determine which section could have been applied by the authorities. However it considered that the authorities had treated the applicant with excessive severity, as his request was not related to provisional detention but to the sentence he had served and since, in addition, he had not been acquitted nor the charges against him dropped. Reliance on Article 394(1) had led them to examine whether the applicant's responsibility for the alleged acts had been sufficiently established, and thus pronounce upon his guilt.
They might have applied Article 292, which covers more general situations of judicial error or dysfunction. The Court also underlined the fact that the applicant's conviction had already appeared on his criminal record even though it had been definitively set aside by the Constitutional Court.
Individual measures: The applicant's criminal record has now been erased.
Information is awaited on the applicant's present situation, particularly concerning whether it is possible to reopen the compensation proceedings.
General measures: The judgment of the European Court was published on the Ministry of Justice’s Official Bulletin and sent by the Ministry to the State Council, the Supreme Court, the Constitutional Court, the legal department of the state and to other competent departments. Since the violation relates to an incorrect application of domestic measures by the authorities, and as Spanish law gives direct effect to the Convention and to the European Court’s judgments, the publication and dissemination of the judgment to the competent authorities seem sufficient measures for the purpose of execution.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

- 2 cases against Switzerland

49492/06 Carlson, judgment of 06/11/2008, final on 06/02/2009, rectified on 08/12/2008
This case concerns a breach of the applicant’s right to respect for his family life (violation of Article 8).
The applicant, a United States national, is the father of a child born in 2004 of his marriage to a Swiss. In the summer of 2005, the wife, who had been living with her husband and child in the United States decided to take up residence in Switzerland. Two suits were rapidly brought before the Swiss Courts: In September 2005 the wife sued for divorce and provisional custody of the child, the latter being granted by the Swiss court on 30/09/2005. In October 2005 the applicant requested the child’s immediate return to the United States by virtue of the Hague Convention (of 25/10/1980 on the civil aspects of the international abduction of children). The Swiss judge joined the two proceedings, and dismissed the applicant’s request in mid-February 2006. This decision was ultimately upheld by the Federal Court on 13/07/2006.

The European Court considered that the applicant’s rights under Article 8 were thereby violated for three reasons, essentially linked to the slowness in implementing the child’s possible repatriation:
- Article 16 of the Hague Convention requires the suspension of proceedings on the merits of custody until a decision has been taken on possible repatriation. Here, the decision to join the proceedings was contrary to the terms of the Hague Convention and had the effect of prolonging the proceedings with regard to repatriation;
- Article 11 of the Hague Convention requires the competent authorities to proceed with urgency with a view to the child’s return; more than six weeks’ inactivity could give rise to a request for explanation. In this case, the three and a half months between application and decision were excessive;
- Article 13 of the Hague Convention provides that return of the child is not imperative where the person opposing return (in this case the mother) can prove that the person having charge of the child (in this case the father) had consented to the child’s being removed or not returned. The Swiss judge reversed the burden of proof, imposing on the applicant rather than on the mother the responsibility for establishing that he had not consented to the child’s being removed or not returned, which placed him in a clearly disadvantageous position from the start.
Lastly, the European Court was not convinced that the Swiss courts, when evaluating the application for the child’s return under the Hague Convention, had taken due account of the overriding interest of the child (understood in the sense of a rapid decision to reintegrate him in the usual context of his life).
Individual measures: The European Court awarded just satisfaction in respect of the considerable non-pecuniary damage sustained by the applicant, in particular as the shortcomings identified in the implementation of The Hague Convention brought about a break in relations between the applicant and his son. Nonetheless, the Court pointed out (§70) that the applicant did not complain about the reasons for the refusal of his application for the child’s return, but rather of the way the national courts responded to his application (i.e. the unfolding and the length of the proceedings).
According to the latest information available on the basis of the judgment, the applicant still resides in the United States and the child is with his mother in Switzerland. The divorce proceedings are apparently still pending and the applicant still aims to repatriate his child to the USA once they are over. He obtained visiting rights in November 2007.
The Swiss authorities have indicated that the applicant lodged no request for revision of the domestic decision within the statutory time-limit (7/05/2009).
Information is awaited on the present situation of the applicant (in particular concerning the developments in the pending proceedings and the concrete terms of his current visiting rights).
General measures: The proceedings which failed to satisfy the requirements of the Hague Convention took place before a first-instance court (President of the District Court of Baden, Canton of Aargau) and none of the omissions was put right by the higher courts (§81). The Court not least recalled the principle that contracting states are responsible for organising their services and training their officials in such a way as to comply with the requirements of the Convention, and that this was all the more true in a field as sensitive as that of child abduction, in which a particularly high degree of diligence and prudence was called for (§79).
Measures have already been taken to shorten and simplify proceedings in such cases. As already described in the context of the case of Bianchi (Final Resolution CM/Res/DH(2008)58) a new federal law on the international abduction of children entered into force on 1/07/2009. This law provides: accelerating return procedures by conferring competence on a single cantonal court and removing other legal procedures at cantonal level; giving preference to the conclusion of friendly settlements in disputes between parents; combining decisions on return with enforceable measures; and requiring cantons to designate a single authority in charge of enforcement. The law also provides that the parties should whenever possible be heard by the court and that children should be heard in an appropriate manner. Lastly, the court is required, to the extent this is necessary, to work with the competent authorities of the state in which the child habitually resided immediately before being abducted.

In addition, on 1/07/2009 the Hague Convention of 19/10/1996 on competence, applicable law, recognition, enforcement and co-operation regarding parental authority and child protection measures entered into force in respect of Switzerland. These new international rules aim in particular to avoid conflicts of competence between states and the adoption of contradictory decisions. Pursuant to this Convention, Switzerland will designate a Central Authority at federal level: i.e. the federal Justice Department.
Finally, in line with its usual practice and to avoid similar violations immediately, the Carlson judgment has been published and sent out to the authorities concerned.
Assessment: This being the case, no further general measure seems necessary.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH) in the light of information to be provided on individual measures.

42034/04 Emre, judgment of 22/05/2008, final on 22/08/2008
This case concerns the violation of the applicant's right to respect of his private and family life, due to his deportation from Switzerland (violation of Article 8).
In 1986 the applicant, a Turkish national, arrived with his family in Switzerland before the age of six. Following a number of offences, in June 2003, the department for foreigners of the Canton of Neuchâtel imposed a residence ban for an unlimited duration. This decision was finally upheld by the Federal Court on 3/05/2004.
The European Court considered that the Swiss authorities had not struck a proper balance between the interest of the applicant and his family on the one hand and their own interest in controlling immigration on the other. Although the measure at issue was provided by law and pursued a legitimate aim, it was not necessary in a democratic society. In thus concluding, the Court took particularly into account that some of the offences committed by the applicant constituted juvenile delinquency; his weak ties with his country of origin, which could make his return even harder given his health problems; the seriousness of the offences of which the applicant had been convicted; and the final nature of the exclusion order.
Individual measures: The applicant was expelled in 2004 and after his illegal re-entry into Switzerland, he was again deported to Turkey on 1/11/2005. The European Court awarded just satisfaction in respect of non-pecuniary damage sustained.
Following the Court’s judgment, the applicant lodged a request for revision with the Federal Court. On 6/07/2009 the Federal Court, allowing his request, modified the decision of 3/05/2004 and limited the duration of the exclusion order to 10 years, starting from its imposition on 2/06/2003
• This information is being assessed.
General measures: The European Court criticised in particular the disproportionate character of the applicant's exclusion order in the circumstances of the case. The Swiss authorities stated that the violation constituted an isolated case, resulting from a different assessment of what was at issue between the national authorities and the European Court. While the legal provisions themselves have not been questioned, they have evolved since the facts of the case. With the entry into force of the revised Criminal Code on 1/01/2007, the former provision of expulsion as a criminal sanction was abrogated. The present legal provisions concerning expulsion are included in Chapter 10 of the Federal Law on Aliens of 16/12/2005 (http://www.admin.ch/ch/f/rs/1/142.20.fr.pdf).
So that the competent authorities may avoid new, similar violations by directly applying this case-law of the European Court, the judgment has been widely published and disseminated. On 22/05/2008 it was sent out to the Neuchâtel Canton authorities. It was published on the Website of the Federal Court (http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-leitentscheide1954.htm) and in the second quarterly report of the Ministry of Justice; http://www.bj.admin.ch/etc/medialib/data/staat_buerger/menschenrechte/eurokonvention.Par.0005.File.tmp/ber-egmr-2008q2-f.pdf). These quarterly reports are sent out to all the relevant Federal authorities (Federal Court, Federal Administrative Court, Federal Criminal Court, Secretariat of the Parliament) as well as the relevant judicial authorities in the Cantons. A summary of the judgment was also published in the Annual Report of the Federal Council on the activities of Switzerland in the Council of Europe in 2008.
Assessment: No further general measure appears necessary.

Les Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of an evaluation of the information provided on individual measures.

- 239 cases against Turkey

19807/92 Erdoğan and others, judgment of 25/04/2006, final on 13/09/2006
This case concerns the failure on the part of the national authorities to protect the right to life of the applicants' relatives in the planning and manner of execution of police operations carried out in four different locations in Istanbul in 1991. The applicants' relatives, who were members of an extreme left-wing armed movement (Dev-Yol), were all killed during the operations (violation of Article 2).
The European Court found the following deficiencies in the planning and manner of execution of the operations:
- There had been no documents recording the planning of the operations and briefings given to the officers involved;
- The legislation applicable (Law No. 2559, enacted in 1934) to the conduct of such operations listed a wide range of situations in which a police officer could use firearms without being liable for the consequences. This legal framework would not appear to be sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe;
- There were no clear guidelines and criteria governing the use of force when carrying out arrests of dangerous suspects in peacetime;
- There had been no clear instructions given by police chiefs to police officers as to how to capture and detain suspects alive or as to how to negotiate a peaceful surrender, as well as instructions as to how and when use a lethal or a non-lethal weapon;
- The injuries to the applicant's relatives were such that it seemed unlikely that they had been caused by police officers acting in self defence.
The European Court thus found that the use of force by the police officers was not absolutely necessary in self defence. In this regard, the Court noted that, despite the alleged intensity of exchange of fire between the police officers and the members of Dev-Yol, none of the police officers was killed or even injured while all members of the Dev-Yol were killed.
The case also concerns the inadequacy of the investigation. The European Court highlighted the following shortcomings: the investigation authorities did not photograph or make sketches at the scene of the incidents; they took no fingerprints and the weapons used by the police officers were not sent for forensic examination (violation of the procedural aspect of Article 2).
Lastly, the case concerns the absence of any effective remedy at the applicants' disposal, including for compensation (violation of Article 13).
Individual measures: It may be noted that in accordance with the Committee of Ministers' well-established practice, the respondent state has a continuing obligation to conduct effective investigations, a fortiori in case of a finding of a violation of Article 2 (see in particular Interim Resolution ResDH(2005)20 in the case of McKerr and others against the United Kingdom, the case of Scavuzzo-Hager and others against Switzerland, the cases concerning the action of security forces in the Russian Federation).
Information is awaited on measures taken or envisaged by the Turkish authorities to ensure a fresh investigation into the incidents in the light of the shortcomings identified by the European Court.
General measures:
Information provided by the Turkish authorities (15/05/2007)
- Legal framework regarding the use of force by the police:
Changes were introduced on 2/6/2007 to Law No. 2559 on the duties and legal powers of the police, which now provides that the police are not entitled to use force unless confronted with resistance. According to the amended Article 16 of the law, the use of force should be directed so as to break up the resistance and should be proportionate. The use of force could be increased gradually, depending on the nature and level of the resistance confronted (i.e. the police shall first use physical force, then will intervene with other devices (such as tear-gas, truncheon etc) and, as a last resort only, use firearms). The police shall warn the person(s) resisting that they will use force if they continue resisting. However, if the circumstances of the resistance so require, the police might use force without warnings. The police shall consider and decide the level of the force that they will use; including the devices they will use to break up the resistance. The police are entitled to legitimate defence in cases of attacks directed against them or to third persons. The police are entitled to use weapons in self-defence, in cases where they cannot neutralise resistance by physical force or other devices or in order to secure an arrest, detention or in cases of flagrante delicto. In those situations the police shall issue a stop order before using a firearm. The police are entitled to use a firearm without hesitation on person(s) attempting to use a firearm against them within the limits of neutralising the danger.

- Legal framework regarding armed operations:
A Regulation on Operations of the Security Directorate came into force on 16/11/2001 which sets the framework for the instructions to be given to staff participating in law enforcement operations. According to the Regulation, all operations should be composed of three phases: preparation, execution and follow-up. In particular, the regulation provides as follows: before planning an operation, staff should ensure the preparation of an inventory of the area where the suspects are. An evaluation of the staff that will participate in the operation, the vehicles, arms and other equipment that will be used in the operation should be made. Detailed instructions should be given to senior staff members. During the different phases of the operation the staff shall not use firearms unless strictly necessary to carry out an arrest. If necessary, specialised staff or psychologists shall intervene in order to establish dialogue with the suspects. Necessary measures should be taken to protect the suspects from possible attack or lynching. The regulation in question is unpublished.
- Publication and dissemination of the judgment of the European Court:
The judgment has been published at the Human Rights Database (www.inhak-bb.adalet.gov.tr/aihm/karar/erdoganvedigerleri.doc) and has been disseminated to the Ministry of the Interior.
The Secretariat proposes to examine the measures taken under this head in the context of the cases concerning the actions of security forces.

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

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

- Another booklet containing the rules adopted by international organisations, including the Committee of Ministers’ Recommendation No. R(98)7, was prepared and distributed in May 2007. In addition, this booklet is used as part of the curriculum at training centres.
A Turkish translation of the Court’s judgment was also posted on the website of the Ministry of Justice at:
www.inhak-bb.adalet.gov.tr/aihm/karar/huylu.doc.
Assessment: In the light of the information submitted, no other general measure appears necessary.

The Deputies decided to resume consideration of this item at the latest at 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

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

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

The Deputies decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures

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

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided as to whether the family court’s ruling has become final.

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

Information provided by the Turkish authorities (27/04/2009): The Council of State’s decision of 19/01/2007 was quashed by the Joint Council of the Council of State’s Administrative Chambers on 4/12/2008. In its decision the Joint Council stated that the request for a retrial under Article 53/1(ı) of the Law on Administrative Procedure for the reopening of domestic proceedings applies in cases where the European Court found a violation. However, the request for reopening can be accepted only when new evidence or facts having consequences on the merits emerges following a violation found by the European Court. If such evidence or facts come to light during the proceedings before the European Court or if it is found by the European Court that the right to a fair trial had been violated, then the consequences of this violation can be remedied by a retrial following the finding of a violation. In the instant case these prerequisites are not met.
Information is awaited as to whether the decision of the Joint Council of the Council of State is the final decision in the applicant’s case, and if so, information is awaited on measures envisaged by the Turkish authorities to erase all the consequences of the violation for the applicant.
General measures:
Information provided by the Turkish authorities: The judgment of the European Court has been published and disseminated to the Higher Education Council.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

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

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

The Deputies decided to resume consideration of this item at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures.

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

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of further information to be provided on individual measures.

- 4 cases of length of criminal proceedings in particular before martial law courts
15259/02 Ertürk Hasan, judgment of 12/04/2005, final on 12/07/2005
287/03 Çengelli and Eryılmaz, judgment of 10/06/2008, final on 10/09/2008
9984/03 Kanbur No. 2, judgment of 14/10/2008, final on 14/01/2009
36150/02 Kaya Mehmet, judgment of 06/12/2005, final on 06/03/2006
These cases concern the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (since abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violations of Article 6§1).
In the Ertürk Hasan case, proceedings began in November 1983 and are still pending before the Court of Cassation (at the time the European Court issued its judgment, the proceedings had been pending more than 21 years of which 18 fall under the European Court's jurisdiction). In the Mehmet Kaya case, proceedings began in September 1980 and were still pending before the Ankara Assize Court at the time the European Court gave its judgment (more than 25 years of which 18 fall under the Court's jurisdiction).
In the Çengelli and Eryılmaz case, the proceedings began on 3 and 15/03/1981 and were still pending before the Ankara Assize Court at the time the European Court issued its judgment (more than 27 years of which 21 fall under the Court's jurisdiction).
The applicants were released pending trial respectively in 1988 and 1991.
The Kanbur No. 2 case is the applicant's second application before the European Court. His first application was concluded by a judgment of 30/10/2001 in which the Court had found that there had been a violation of Article 6§1 (application No. 28291/95, lodged on 21/07/1995). By then, the proceedings had lasted for over 19 years. In the present application, the Court again found that there had been a violation of Article 6§1 on account of the excessive length of the proceedings which have continued for more than six years and ten months, for two levels of jurisdiction, since the Court's earlier judgment. According to the information made available to the Court, the proceedings are still pending before the Court of Cassation.
The first case was closed by Final Resolution ResDH(2004)36 adopted by the Committee of Ministers on 15/06/2004 at the 885th meeting on the basis of information provided by the Turkish authorities in their letters of 09/01/2003 and 14/11/2003 which stated that “a decision in the applicant's case was reached by the Ankara 6th Assize Court on 16 July 2002, and the criminal proceedings against the applicant were completed”.
Individual measures:
1) Case of Ertürk Hasan:
• Information provided by the Turkish authorities (03/04/2006): On 03/10/2006 the Ankara Assize Court convicted the applicant. On 03/03/08, the authorities indicated that the applicant had appealed his conviction and the case was pending before the Court of Cassation. On 03/03/2008 and 27/04/2009 the Turkish authorities indicated that the appeal proceedings were still pending before the 11th Chamber of the Court of Cassation.
Information is awaited on the termination of the appeal proceedings.
2) Case of Kaya Mehmet: On 25/09/2007 the Turkish authorities indicated that the proceedings were still pending before the Court of Cassation.
Information is urgently awaited on the outcome of the appeal proceedings.
3) Case of Çengelli and Eryılmaz:
Information is awaited on the acceleration of the proceedings.
4) Case of Kanbur No. 2:
Information is urgently awaited on the termination of the domestic proceedings in the applicant's case.

General measures: These cases present similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Şahiner and others against Turkey, which was closed by Resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

The Deputies decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of further information to be provided on individual measures, in particular on the outcome of the pending proceedings against each of the applicants.

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

- 208 cases concerning the independence and impartiality of state security courts
(See Appendix for the list of cases in the Gençel group)
These cases concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them (violations of Article 6§1).
The Y.B and others case also concerns a violation of the principle of presumption of innocence (violation of Article 6§2).
Individual measures: The European Court considered that where an individual has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation.
However, the provisions of the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in these cases, inasmuch as the Code only provides for the reopening of proceedings in respect of the Court's judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003.
Consequently, the applicants' appeals for reopening of proceedings in the cases of N.K (43818/98), Özertikoğlu İsmail (48438/99), Süvarioğulları (50119/99), Güven and others (in respect of Ramazan Akdağ and Ahmet Güven) (40528/98), Yıldırım Süleyman (40518/98), Güneş Ismail (53968/00), Gençel (53431/99),Kaymaz and others (57758/00) and Ağaoğlu (27310/95) were rejected by domestic courts. In the case of Kaymaz and others and Ağaoğlu, the applicants lodged a new application with the European Court alleging that the fact that they had been deprived of the possibility to have their cases reopened constituted violations of Articles 3, 5§1(a), 6 and 13 (in conjunction with Article 14) of the Convention.
Information expected: concerning the applicants' situation and the measures envisaged ensuring proper redress to the applicants, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
General measures (No examination envisaged)
1) Violations of Article 6§1 (independence and impartiality): these cases present similarities to that of Çıraklar against Turkey (judgment of 28/10/1998) which was closed by a final resolution, DH(99)555, following the legislative and constitutional amendments changing the composition of state security courts and ending the functions of military judges and military prosecutors in these courts. On 07/05/2004, the Parliament approved a constitutional amendment abolishing state security courts.
2) Violations of Article 6§2 (presumption of innocence): in the case of Y.B and others, publication and dissemination of the European Court's judgment to the police force, in particular to the Anti-Terrorism Branch.

The Deputies decided to resume consideration of these cases at their 1078th meeting (March 2010) (DH), in the light of further information to be provided on individual measures, namely the erasure of all consequences of the violation for the applicants and on remaining general measures.

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

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures, namely the erasure of all consequences of the violation found for the applicant.

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

52941/99 Gültekin and others, judgment of 31/05/2005, final on 31/08/2005, rectified on 06/12/2005
27526/95 Günaydın Vedat and Şahin, judgment of 13/10/2005, final on 15/02/2006
48063/99 Aslan Orhan, judgment of 20/10/2005, final on 20/01/2006
42579/98 Demir Murat, judgment of 02/03/2006, final on 02/06/2006
43925/98 Karakaş and Yeşilırmak Yılmaz, judgment of 28/06/2005, final on 28/09/2005
39813/98 Önder Soner, judgment of 12/07/2005, final on 12/10/2005
40986/98 Soner and others, judgment of 27/04/2006, final on 27/07/2006
42594/98 Uçkan, judgment of 22/06/2006, final on 22/09/2006
These cases concern the ill-treatment of the applicants during police custody (violations of Article 3).
They also concern the violation of the applicants' right to a fair trial by an independent and impartial court on account of the presence of a military judge on the bench of the state security courts which tried and convicted them (violations of Article 6§1).
The applicants in two of the cases are still serving heavy prison sentences (life imprisonment in the case of Gültekin and others and 20 years in the Önder case).
Individual measures: As regards the violations of Article 6§1, these cases present similarities to the Gençel group (53431/99, Section 4.1). The European Court has reiterated its view (except in the case of Karakaş and Yeşilırmak) that in cases where an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress would be to ensure that in due course the applicant is granted a retrial by an independent and impartial tribunal. The applicants cannot obtain reopening of proceedings (see the case of Hulki Güneş for details, Section 4.3).
Information expected on the applicants' situation and the measures envisaged to ensure them proper redress, particularly in the light of the constitutional amendments of May 2004 abolishing state security courts and allowing the judiciary to give direct effect to the Convention (Article 90 of the Constitution).
General measures:
1) Violations of Article 3: These cases present similarities to the other cases concerning the actions of security forces in Turkey, which are being examined by the Committee (Aksoy group, 21987/93, 1078th meeting, March 2010, in this connection see Interim Resolution ResDH(2008)69 adopted at the 1035th meeting (September 2008) which takes stock of the measures already taken and points out the outstanding issues to be resolved).
2) Violations of Article 6§1: These cases present similarities with the above-mentioned Gençel group.

The Deputies decided to resume consideration of these items at their 1078th meeting (March 2010) (DH), in the light of information to be provided concerning individual measures, namely the erasure of all consequences of the violations found for the applicants.

    - 7 cases mainly concerning the unfairness of the criminal proceedings against the applicants

35811/97 Kolu Mustafa, judgment of 02/08/2005, final on 02/11/2005
74500/01 Çelik and others, judgment of 26/06/2007, final on 26/09/2007
71803/01 Kapan and others, judgment of 26/06/2007, final on 26/09/2007
36487/02 Menteş Güler, judgment of 06/02/2007, final on 06/05/2007
46213/99 Örs and others, judgment of 20/06/2006, final on 20/09/2006
46286/99 Özen Hacı, judgment of 12/04/2007, final on 12/07/2007
38419/02 Yıldız Sacettin, judgment of 05/06/2007, final on 05/09/2007
These cases mainly concern the unfairness of criminal proceedings against the applicants, in which they were sentenced to prison terms on the basis of self-incriminating statements made in the absence of a lawyer and/or under duress while in police custody and/or without being able to examine their accusers (in the cases of Kolu Mustafa and Menteş Güler), without appearing before the trial court (violations of Article 6§§1 and/or 3(c) and/or 3(d)) and without being represented by counsel during trial.
These cases also concern: the excessive length of the applicants' detention in police custody (Örs and others; Özen Hacı) (violations of Article 5§3); failure to communicate the written opinion of the public prosecutor before the Court of Cassation to the applicants (Çelik and others; Menteş Güler) (violations of Article 6§1); lack of independence and impartiality of the state security court which tried the applicant on account of the presence of a military judge on the bench (Özen Hacı) (violation of Article 6§1); inhuman treatment of the applicant while in police custody and the absence of an effective remedy in this regard (Özen Hacı) (violation of Articles 3 and 13); failure of the authorities to investigate the applicant’s claim of ill-treatment (Yıldız Sacettin) (substantive and procedural violations of Article 3);
Individual measures: With the exception of those in Kapan and others and Sacettin Yıldız (whose situation is unclear), all the applicants either must have served their prison sentences or have been released in application of an amnesty law. However, the Turkish authorities have indicated that their convictions continue to appear in their criminal records with the exception of the applicant Saime Örs (in the case of Örs and others) and all of the applicants in the case of Çelik and others, whose convictions have been erased from their criminal records. In the case of Hacı Özen, the authorities indicated that the applicant submitted no request for reopening within the statutory time. However, the law on reopening of proceedings does not appear to be applicable in this case given the temporal gap provided for in that law (see the case of Hulki Güneş in Section 4.3 for details).
Information is therefore awaited on the erasure of all the consequences of the violations found by the Court with the exception of Saime Örs and the applicants in the case of Çelik and others. In this respect, the Court recalled its case-law to the effect that when someone has been convicted in unfair proceedings, a new trial or the reopening of the proceedings at the individual's request is in principle an appropriate means of remedying the violation found. It should also be noted that the law on reopening does not appear to be applicable to the applicants in these cases.
Information is also awaited on the situation of the applicants in Kapan and others and Sacettin Yıldız (especially whether they are still serving the sentences at issue).
General measures:
1) Procedural safeguards in police custody:
Measures adopted: Several measures have been taken with the entry into force of the new Code of Criminal Procedure (CCP) on 01/06/2005 and with the amendments introduced in the Rules on Apprehension, Police Custody and Interrogation in relation to the procedural safeguards in police custody (see, Appendix 1 to Interim Resolution ResDH(2005)43). These amendments, as far as relevant, can be summarised as follows:
1. All suspects or accused shall have the right to have access to a lawyer at every stage of the investigation. The right to have access to a lawyer, including during the interrogation, shall not be obstructed or limited (Article 149 of the CCP).
2. A lawyer shall be appointed if suspect or accused declares that he or she has no means to appoint one. In the investigation of crimes requiring at least five years' imprisonment, a lawyer shall automatically be appointed whether or not the suspect or the accused requests it (Article 150 of the CCP).
3. Apprehended persons shall be informed of their rights at the time they are taken into custody (Article 6 of the Regulations).
4. Lastly, no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the CCP).

2) Violations of Articles 3 and 13: See the cases of actions of security forces (Aksoy group, 21987/93,1078th meeting, March 2010).
3) Violation of Article 5§3: Measures have been taken (see Final Resolution ResDH(2002)110 in the Sakık and others case)
4) Non-communication of the opinion of the public prosecutor to the applicant: Measures taken (see the case of Göç, 36590/97, Section 6.2).
5) Lack of independence and impartiality of the state security court: Measures have been taken (see Final Resolution DH(99)555 in the case of Çıraklar).

The Deputies decided to resume consideration of these items at the latest at their 1086th meeting (June 2010) (DH), in the light of information to be provided on individual measures, namely the erasure of all the consequences of the violations.

32984/96 Alfatli and others (applicant Mahmut Memduh Uyan), judgment of 30/10/03, final on 24/03/04
The case concerns the excessive length of criminal proceedings in particular before the Ankara Martial Law Court (jurisdiction of which was abolished by a Law of 27/12/1993) and also partly before ordinary criminal courts (violation of Article 6§1). The proceedings, of which the European Court took account as from 28/01/1987 (the date of Turkey's recognition of the right of individual petition) began in February 1985 and were ended in December 1995 (more than 8 years and 11 months).
In the meantime, the applicant, who was sentenced to death by the Martial Law Court, was released in February 1995 while the proceedings were pending before the Court of Cassation.
The case also concerns the independence and impartiality of the Ankara Martial Law Court on account of the presence of two military judges and an army officer on the bench (violation of Article 6§1).
Individual measures: Concerning the independence and impartiality of the Martial Law Court, the European Court has expressed the view that in cases in which it finds that an applicant has been convicted by a court which was not independent and impartial within the meaning of Article 6§1, the most appropriate form of redress is to ensure that the applicant is in due course granted a retrial by an independent and impartial tribunal.
In a letter of 01/06/2004 the applicant informed the Secretariat that he was willing to apply for the reopening of the domestic proceedings. However, the provisions of Code of Criminal Procedure on reopening of domestic proceedings do not apply in his case (the same situation as in the cases concerning the independence and impartiality of state security courts).
Information provided by the Turkish authorities: on 07/10/2004 the Turkish authorities informed the Secretariat that the “plan of action” for the implementation of the measures required had been brought to the attention of the Ministry of Justice. On 11/01/2005 the Turkish authorities informed the Committee that the provisions of Law No. 5352 (Law on Criminal Records) do not allow the erasure of the applicant's conviction from his criminal records due to the heavy punishment imposed (i.e. death sentence commuted to life sentence).
Information is awaited on the specific measures taken or envisaged by Turkey in order to ensure redress for the applicant, either by allowing the reopening of proceedings or any other ad hoc measures.
General measures: The case presents similarities to other cases of excessive length of criminal proceedings and independence and impartiality of Martial Law Courts such as that of Şahiner and others against Turkey, which was closed by final resolution ResDH(2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolishment of the jurisdiction of Martial Law Courts.

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures, namely the erasure of all consequences of the violations found for the applicant.

      - Case concerning the independence and impartiality of the General Staff Military Court

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

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (DH), in the light of information to be provided on individual measures.

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, 1078th meeting, March 2010).

The Deputies decided to resume consideration of this item at their 1078th meeting (March 2010) (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 Inclusion of cases in this Section does not exclude the possibility that general measures may be examined at subsequent meetings.

3 The Deputies decided to postpone consideration of this case to the 1078th meeting (March 2010) (DH).


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