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8. The applicant, Mr İsak Tepe, is a Turkish citizen who was born in 1943 and is at present living in İstanbul (Turkey). At the time of the events giving rise to his application, the applicant was the provincial chairman of a political party, the DEP (Democracy Party), in the province of Bitlis (south‑east Turkey). The application concerns the applicant’s allegations that his son, Mr Ferhat Tepe, was abducted and killed by undercover agents of the State. 9. The facts surrounding the death of the applicant’s son are disputed between the parties. 10. The facts as presented by the applicant are set out in Section 1 below. The facts presented by the Government are contained in Section 2. 11. A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the Court’s delegates at hearings conducted in Ankara is summarised in Part C. 12. In the beginning of July 1993, General Korkmaz Tağma, the commander of the Tatvan 6th Armoured Brigade, invited the provincial leaders of all political parties to a meeting at the army barracks. The applicant attended this meeting as the representative of the DEP and spoke in support of the cultural and democratic rights of the Kurdish population in Turkey. During the meeting, General Tağma claimed that there were no Kurds in Turkey and that those who had taken to the mountains were Armenians. He then asked the participants to report to him the names of the people who helped the PKK. The applicant replied to General Tağma that there were Kurds in Turkey as well as Turks and other minorities and that these people should be treated on the basis of equality in a democratic manner. He added that the denial of other people’s existence and the oppression or repression of others would not lead anywhere. General Tağma was furious and wanted to obtain information on the children of the chairmen, for example where they worked and how old they were. He warned the chairmen, including the applicant, that their children would be destroyed if they were not raised as loyal citizens of the State. 13. In the afternoon of 10 July 1993 the applicant’s son, Ferhat Tepe, born in 1974 and working as a reporter for the Özgür Gündem newspaper in Bitlis, was taken into police custody. No reasons were given for his arrest. He was released the same day in the afternoon. 14. On 28 July 1993 at around 7 p.m., while Ferhat was in the schoolyard of the Şemsi Bitlis primary school, a tall, bearded man who was known in the area to be a policeman, took him by the arm, put him in a car and drove away with him. Their car was followed by a white car, a Renault with the registration number 65 AD 095. There were two persons inside the white Renault, which was seen later that day parked next to Mahallebaşı police station. 15. Later on the same day, the applicant learned from İsmetullah Güzelsoy and Adnan Karslıoğlu that two plain-clothes policemen had made enquiries about Ferhat in the building where they lived. He went home in panic and realised that Ferhat was missing. 16. On 29 July 1993 at around 6 a.m. the applicant received a phone call from an anonymous person who claimed to be a member of an organisation called the “Ottoman Turkish Revenge Brigade” and said that they were keeping his son as a hostage. The caller said that Ferhat would be killed unless the applicant closed down the DEP’s Bitlis branch, released four French tourists who were in the hands of the PKK and paid one billion Turkish liras (TRL). The applicant said he could close down the Bitlis branch and try to find TRL 1 billion but had no power to secure the release of the French tourists, as he had no connection with the PKK. The caller warned the applicant that his son would be killed if the conditions were not met. 17. On the same day at 8 a.m. the applicant went with his wife and daughter to the Bitlis Security Directorate, where he told the director and the provincial governor of his suspicion that Ferhat had been abducted by contra-guerrillas operating within the State security forces. The governor and the director denied the existence of contra-guerrillas in Turkey and affirmed that the State did not commit murder. 18. On the same day the applicant applied to the Bitlis Public Prosecutor and asked that his home and office telephones be tapped in order to trace the caller’s number if another call was made. He also requested that all necessary action be taken to rescue his son. 19. On 30 July 1993 the applicant sent telegrams to the Prime Minister, the Minister of the Interior and the Governor of the state of emergency region asking for their aid in rescuing his son. 20. On 1 August 1993 the applicant and his wife went to Tatvan to talk to General Korkmaz Tağma at the brigade headquarters. They were told that the general was ill and had gone to Antalya. They were received by a colonel and attended a meeting at General Tağma’s office. During this meeting, Mrs Tepe stated that the bloodshed between Turks and Kurds had to stop and that she would sacrifice her son if this were to bring the animosity to an end.
During the second or the third telephone call, the anonymous caller said that Mrs Tepe had spoken well at General Tağma’s office, which proves that the caller was either present at the meeting or had been informed by someone who had attended the meeting. 21. Subsequently, the applicant informed the Security Director that according to Fatih Olcay and Adnan Karslıoğlu, eye-witnesses to Ferhat’s abduction, the people who had taken Ferhat away were policemen. The applicant also said that there was evidence that the white Renault, which had followed the car in which Ferhat Tepe was abducted, belonged to the security forces. 22. On 4 August 1993 the applicant received another phone call at around 3 a.m. He immediately alerted the authorities while he was on the phone and asked them to identify the caller’s number. The conversation that followed was recorded. The person on the phone said that the applicant had failed to fulfil their conditions for the release of Ferhat since the DEP branch had not been closed down, and the applicant had failed to pay and had reported everything to the authorities. The caller told the applicant to bring TRL 1 billion to an address in the province of Elazığ. After listening to the recording, the Security Director told the applicant that the State could give him special bank notes, the serial numbers of which had been noted by the police, and told him to come back later for the bank notes. Later on the same day, when the applicant called again, the Director told him that he was having difficulty in obtaining the bank notes. 23. On the same day the applicant, together with four policemen and four of his relatives, went to the address in Elazığ indicated by the caller but could not find anyone. 24. Still on 4 August 1993, Ferhat’s dead body was found by a civil servant at the Lake Hazar, in Karakem. On the same day the public prosecutor and a medical expert examined the body. The report of their findings concluded that the cause of death was drowning and that there was no need for a systematic autopsy. It also stated that no signs of blows or the use of force on the body or of friction on the wrists and ankles had been detected. 25. On 5 August 1993 the applicant, who had not yet been informed of Ferhat’s death, applied to the Public Prosecutor enquiring whether the anonymous caller’s number had been traced. His application remained unanswered. 26. On 8 August 1993 the applicant received a third anonymous telephone call in which he was told that Ferhat’s body was at the morgue in Elazığ. Later that day the applicant discovered that the body had been buried on 5 August 1993 in the Elazığ cemetery for persons with no known relatives. 27. On 9 August 1993 the applicant identified Ferhat’s body, which had been exhumed by the authorities. In preparation for the funeral ceremony, the applicant washed the body himself in a mosque. He saw that his son’s testicles had been crushed and that there were marks on the arms, ankles, testicles and chest. He observed some cigarette burn marks on the body but no fractures. There were also deep wounds on the wrists and ankles showing that Ferhat had been bound hand and foot. The applicant alleged that, according to the eyewitnesses Mümtaz Çerçel, Ömer Aceban, Bahri Elçi, Miğdat Yaşar, Murat Koparan, Taner Şarlak, Erkan Dağdelen, Urfi Pasin and Rıza Demirtaş, who had been apprehended and questioned at the relevant time in the Diyarbakır Recruitment Office, Ferhat had been held there and tortured by members of the security forces between 28 July and 4 August 1993. Mümtaz Çerçel allegedly gave a statement, but withdrew it after being threatened by the police. 28. On 9 August 1993 the Sivrice Public Prosecutor issued a decision of non-jurisdiction, referring the investigation file to the Bitlis Public Prosecutor’s office. 29. At the funeral procession in Bitlis on 10 August 1993, there was a strong police presence. The police filmed those who attended, checked their identification and arrested fifteen persons. Later on the same day the police searched the applicant’s house. 30. On 12 August 1993 the Bitlis Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Elazığ Public Prosecutor. 31. On 19 October 1993 the applicant sent a letter to the Committee of the Turkish Parliament on Murders Perpetrated by Unknown Persons, alleging that secret forces within the State security forces had killed his son. 32. On 2 November 1993 the applicant filed a petition with the Ministry of Justice, alleging that the abduction and killing of his son had been the acts of State forces and requesting an investigation into the matter. 33. On 16 March 1994 the applicant asked the Bitlis Public Prosecutor whether any inquiry into the killing of his son had been initiated. The Public Prosecutor told him there were some obstacles which he had been unable to overcome. On the same day the applicant went to the Bitlis Provincial Security Directorate and asked the assistant director why no investigation had been carried out. The Assistant Director said he did not have to explain anything to the applicant. 34. On 28 September 1994 the applicant applied again to the Ministry of Justice asserting that certain State security forces had been responsible for the abduction and death of his son. He requested that his allegations be investigated. 35. On 15 November 1994 the Elazığ Chief Public Prosecutor issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe. 36. Following the applicant’s complaints to the authorities, the police took tight security measures. The applicant, his office, his home and the DEP party building were put under constant surveillance. The police filmed the applicant’s colleagues and his fellow-townsmen who came to console him, and checked their identity cards. 37. In the meantime, the applicant’s family had been under intense pressure from the State authorities in relation to his political activities, the investigation he had personally carried out into the killing of his son and his application to the European Commission of Human Rights. The applicant’s daughter was remanded in custody in December 1993; his son was remanded in custody in 1994 for four months and is currently being tried for an offence which carries the death sentence; another of the applicant’s daughters was taken into custody in April 1994; four of the applicant’s nephews were remanded in custody in 1994, one of whom is being tried for an offence which carries the death sentence; the applicant’s brother was taken into custody in April 1994 and the applicant’s cousin has been in Elazığ Prison since 1994. On 24 February 1996 the applicant was arrested in Bartın and held in police custody for eight days in Bitlis. During his detention, the police officers asked him why he accused the State and why he had taken his complaints to the European Commission. They further threatened him and said among other things: “We will kill you just as we killed Ferhat. You are complaining to the infidels about our State. Are they the ones who will save you? Well, let them come and save you.” After being released, the applicant was acquitted of the charges by the Diyarbakır State Security Court. On 4 March 1996 the applicant was allegedly taken into custody in Bitlis on charges of aiding the PKK. He was released on an unspecified date after being interrogated. 38. On 19 February 1997 criminal proceedings were brought against the applicant on account of a speech he had made on a private TV channel, where he had alleged that his son had been murdered by the State. The applicant was charged with insulting the security forces. On an unspecified date, the applicant was convicted as charged and sentenced to one year’s imprisonment. 39. In 1999 the applicant was arrested by police officers from the anti-terrorist department while entering the HADEP (People’s Democracy Party) party building in the Kadıköy district in Istanbul. He was kept in detention for one day. The police officers insulted him and threatened him with death. One of the police officers said that they would kill him just as they had killed Ferhat. The applicant complained to the Fatih Public Prosecutor in Istanbul, who decided to discontinue the proceedings, as there was no witness to confirm his allegations. 40. The applicant’s son Ferhat Tepe had been arrested on two occasions in 1991, as he was suspected of acting as a PKK courier. 41. The Government submitted that, according to various witnesses, on 28 July 1993 Ferhat had met someone in the schoolyard and had left with him of his own free will. 42. The authorities, at the request of the applicant, tapped the anonymous telephone call on 4 August 1993. Although a raid was carried out at the address mentioned in the telephone conversation, the premises were found to be empty. The authorities of the Ministry of the Interior nevertheless established that the residence searched belonged to reporters from Özgür Gündem in Elazığ and concluded that Ferhat’s killing had been the work of the PKK. 43. A report of 24 September 1993 from the Ministry of the Interior to the Ministry of Foreign Affairs and a letter of 16 November 1995 from the governor of Bitlis province indicate that the death of the applicant’s son was the work of the PKK. 44. In a letter of 10 November 1995 the Chief Public Prosecutor of Elazığ, charged with investigating Ferhat Tepe’s death, informed the Ministry of Justice that there was no indication or record of Ferhat’s having been taken into custody. Moreover, the custody records of the Bitlis Security Directorate contained no mention of him. 45. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Ferhat Tepe. 46. On 30 March 1995 the applicant’s lawyer filed a petition with the Chief Public Prosecutor’s office in Bitlis requesting information as to what steps had been taken to find the perpetrators of the abduction and killing of Ferhat. 47. On 31 March 1995, subsequent to the Bitlis Chief Public Prosecutor’s decision of non-jurisdiction, the applicant’s lawyer submitted a petition to the Sivrice Public Prosecutor’s office in Elazığ via the Şişli Chief Public Prosecutor in İstanbul and requested information about the current state of the investigation into the impugned incident.
(b) Domestic investigation documents
(i) Custody records 48. The custody records of the Diyarbakır provincial gendarmes headquarters for the period between 28 July and 4 August 1993 do not contain the name of Ferhat Tepe.
(ii) Transcription of tapes of the telephone conversation dated 4 August 1993 49. The anonymous telephone caller told the applicant that their conditions for the release of Ferhat had not been fulfilled. The applicant replied that he was unable to close down the Bitlis branch of the DEP since this required a decision by the central board in Ankara. The applicant was then told to bring TRL 1 billion by 5 p.m. the next day to an address in Elazığ if he did not want his son to be killed. The person in question warned the applicant not to inform the authorities. The applicant’s request to talk to Ferhat was rejected.
(iii) Post-mortem examination and autopsy report of 4 August 1993 50. An autopsy was carried out on Ferhat’s body by the public prosecutor, a medical expert and the latter’s assistant in the presence of two witnesses and a clerk. It was observed that rigor mortis had not set in and the body had not yet turned blue, that water spurted out when the chest was pressed, that light violet-coloured cyanosis was perceptible on the ears and the nails of both the hands and the feet as a result of suffocation and that there were no signs of any blow or of the use of force on the body, nor were there any signs of friction on the hands and feet. It was therefore concluded that the cause of death was drowning and that there was no need for a systematic autopsy.
(iv) Photographs of the corpse taken on 4 August 1993 51. Nine photographs were submitted to the Court, taken when the body had been pulled out of the lake. No signs of any blows or ill-treatment are visible on the body in these photographs.
(v) Identification report dated 9 August 1993 52. Following the finding of a corpse in Lake Hazar and its transfer to the morgue of Elazığ State Hospital, the applicant’s nephew, Mr Talat Tepe, went to the hospital to identify the body, which he recognised as being his uncle’s son, Ferhat Tepe.
(vi) Report dated 9 August 1993 signed by Talat Tepe and Public Prosecutor no. 29242 53. This document states that Ferhat Tepe’s clothes and shoes were given to Mr Talat Tepe.
(vii) Undated statement of Ömer Aceban, bearing the title “To the Public” 54. In his statement, Mr Aceban submitted that he had been kept in detention in a military detention centre in Diyarbakır between 25 July and 6 August 1993. He alleged that he had seen a detainee called “Ferhat” or “journalist” by the [officers] on the 3rd and 4th days of his detention. He described Ferhat as being a young man of about 18 or 19 years of age, with long, dark hair.
(viii) Statement of Adnan Karslıoğlu, a shopkeeper who had a shop in the building where Ferhat lived, dated 29 July 1993, taken by police officers 55. In this statement, the witness was asked to say what he knew about the incident. He replied that on 28 July 1993, at around 4 p.m., he had seen two plain-clothes men making enquiries about Ferhat. When one of them asked whether he knew Ferhat and the other residents of the building, the witness told them that Ferhat lived there and gave the names of the other residents. He claimed that he did not know whether these men were police officers but that they spoke Turkish with a western accent.
(ix) Statement of İsmetullah Güzelsoy, partner and brother-in-law of the applicant, dated 29 July 1993 and taken by police officers 56. Mr Güzelsoy asserted that Ferhat had twice been taken into custody prior to his disappearance and that he was an irresponsible boy according to his father. The witness stated that on 28 July 1993, at 4 or 4.30 p.m., Mr Karslıoğlu had told him that two police officers had made enquiries about Ferhat. He had told Mr Karslıoğlu that this might have been an investigation in relation to the attack on police buildings which had taken place the previous day. Later that day, at approximately 5 p.m., he had seen Ferhat and had informed him that two police officers had been looking for him. Ferhat had replied to him that he had not done anything wrong. The next day, the witness had learned from the applicant of Ferhat’s disappearance.
(x) Statement of Suat Başboğa, the witness who saw a white Renault Toros car, dated 29 July 1993 and taken by police officers 57. On 28 July 1993, at around 6.30 or 7 p.m., the witness saw Ferhat Tepe talking to two women and one or two men next to a bakery. A white Renault Toros with the registration number “65” attracted the witness’s attention as its parking lights were on. There were two young men in the car. The driver was bearded and approximately 35-40 years old, while the man sitting next to him was about 25-30. According to the witness, these men could not have been police officers, otherwise he would have recognised them. The witness learned of the abduction of Ferhat Tepe when he went to the Social Democrat Populist Party building next day.
(xi) Statement of Fatih Olcay, alleged eyewitness to the abduction of Ferhat, dated 30 July 1993 and taken by police officers 58. The witness was 17 years old at the relevant time. On 28 July 1993, at about 7 or 7.30 p.m., he was playing football with his friends in the Şemsi Bitlis primary school yard. He saw a bearded man aged about 20-25 waiting in the schoolyard. Two or three minutes later Ferhat arrived and they left the schoolyard arm in arm, like two friends. The bearded man did not use any force against Ferhat.
(xii) Statement of Osman Pektaşoğlu, the owner of the beige Renault with the registration number 65 AD 095, dated 3 August 1993 and taken by police officers 59. The witness was a police constable at the traffic registration and inspection department of Bitlis Security Directorate. On 28 July 1993 he was on duty, between 7.30 a.m. and 6 p.m., in charge of traffic control in the town centre. His car was parked in front of his house throughout the day. Next day he went to the city centre at around 1 or 1.30 p.m. and parked his car in front of the Çarşı police station. He returned home at 5 p.m. He did not lend his car to anyone on 28 and 29 July 1993.
(xiii) Statements of Bahri Elçi and Migdat Yaşar, entitled “To the Public”, dated 10 August 1993 60. In their statement addressed to the public, the witnesses alleged that they had been taken into custody on 24 July 1993 and kept in a detention centre in Diyarbakır where they were tortured for five days. During their detention, Mr Elçi heard some officers call out “Come on, journalist, it is your turn”. Mr Yaşar heard them asking a man “Journalist, where are you from?”, to which the reply was “I am from Bitlis”. Following their detention on remand they read in Özgür Gündem that a journalist called Ferhat Tepe had been killed under torture and that his corpse had been found in Elazığ. The witnesses submitted that Ferhat Tepe was the journalist whose voice they had heard during their detention.
(xiv) Statements of Murat Koparan, Taner Şarlak and Erkan Dağdelen, with the title “To the Public” and dated 16 August 1993 61. The witnesses alleged that they had been kept in a military detention centre in Diyarbakır for twenty-two days. On the fourth or fifth day of his detention, Mr Dağdelen had seen a man called “journalist” by others. The journalist was chained by his hands to a water pipe and his body was bloody. He was unable to move or speak. Interrogators were torturing him and putting questions to him concerning his involvement with Özgür Gündem. Following their detention on remand, the witnesses read in Özgür Gündem that Ferhat Tepe had been killed. They identified him from his photos. They claimed that they were sure that they had seen Ferhat Tepe in the military detention centre in Diyarbakır.
(xv) Letters from the Chief Public Prosecutor of Bitlis to the Central Gendarme Division Command and the Security Directorate in Bitlis, dated 30 July 1993 62. The Chief Public Prosecutor informed the gendarmes and the police of Ferhat Tepe’s disappearance and asked them to verify whether he had been taken into custody for any offence. The Public Prosecutor further instructed that the whereabouts of Ferhat Tepe be determined, that those responsible for Ferhat’s disappearance be brought to his office and that all documents related to the case be sent to him.
(xvi) Letter from the Bitlis Central Gendarmes Division Command to the Chief Public Prosecutor’s office in Bitlis, dated 12 August 1993 63. The Deputy Gendarmes Commander informed the prosecuting authorities in this letter that Ferhat Tepe had not been taken into custody and that he had eventually been found dead.
(xvii) Letters from Public Prosecutor no. 25225 in Elazığ to the Chief Public Prosecutor’s office in Bitlis and to the Security Directorate in Elazığ, dated 25 August 1993 64. The Elazığ Public Prosecutor requested the former authority to carry out a comprehensive investigation into the death of Ferhat Tepe and to inform him of the outcome. He requested the latter authority to find the person(s) responsible for the killing of Ferhat Tepe and to bring them to his office.
(xviii) Letter from the Security General Directorate of the Ministry of the Interior to the Ministry of Foreign Affairs, dated 24 September 1993 65. In this letter, the authorities of the Ministry of the Interior informed the Foreign Ministry of their conclusion that, having regard to the way in which Ferhat Tepe had been abducted and to the anonymous telephone calls, Ferhat must have been killed by members of the PKK, in a settling of scores within the organisation. They also noted that the allegation that the authorities had failed to respond to the applicant’s request for help was untrue since, following receipt of the applicant’s complaint, an investigation had been started and the photographs of Ferhat Tepe had been distributed to all the provinces and the security units had been alerted.
(xix) The Elazığ Chief Public Prosecutor’s decision of 15 November 1994 66. The Chief Public Prosecutor, Mr Süleyman Tutal, issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe. He requested the Elazığ Central Gendarme Commander and the Bitlis Chief Public Prosecutor to inform him every three months of any developments in the investigation.
(xx) Letter of 3 May 1995 from the Elazığ Chief Public Prosecutor’s to the Şişli Chief Public Prosecutor’s office in Istanbul 67. In reply to the petition filed by the applicant’s lawyer on 31 March 1995, the Elazığ Public Prosecutor declared that the perpetrators of Ferhat’s killing had not yet been found and that the complainants would be informed of any developments in the investigation.
(xxi) The letter from Public Prosecutor no. 25225 to the Elazığ Chief Public Prosecutor, dated 9 November 1995 68. It is stated in this letter that there is no record of Ferhat Tepe’s having been taken into custody in Bitlis. According to the evidence given by the witnesses, Ferhat met a man in the Şemsi Bitlis Primary School yard and left the premises with that man arm in arm, without any force being used. It is also noted that, according to the autopsy report and the photos taken when Ferhat was found, there were no traces of ill-treatment and no blood stains on his body or his clothes, contrary to the allegations.
(xxii) Letter of 10 November 1995 from the Elazığ Chief Public Prosecutor to the International Law and External Relations Department of the Ministry of Justice 69. Following the lodging of the present application with the former Commission and its communication to the Government, in a letter of 27 October 1995 the authorities of the Ministry of Justice requested information from the Elazığ Chief Public Prosecutor’s office on the current state of the investigation into the applicant’s allegations. 70. The Chief Public Prosecutor wrote back stating that there was no evidence in support of the applicant’s allegations that Ferhat had been abducted, kept in custody and killed under torture by the security forces. He noted that the investigation into the murder was pending. He appended to his letter the post-mortem examination report, the autopsy and identification reports and copies of statements taken from İsmetullah Güzelsoy, Osman Pekdaşoğlu, Adnan Karslıoğlu, Fatih Olcay and the applicant as well as the decisions of non-jurisdiction, the permanent search warrant and 7 photos of Ferhat Tepe.
(xxiii) Report of 16 November 1995 by the Governor of Bitlis addressed to the Ministry of the Interior and the Gendarmes General Command 71. The subject of this letter was Ishak Tepe’s application to the European Commission of Human Rights. Having summarised the events, the governor concluded that the accusations made by the applicant were mere allegations since there was no evidence to substantiate them. He noted that on 4 August 1993 the applicant had received a phone call from a person who had told him to bring TRL 1 billion to an address in Elazığ if he wanted to rescue his son. When the applicant had gone to the address accompanied by police officers from the Elazığ Security Directorate, they had not been able to find anyone. Meanwhile, following inquiries made by the Elazığ police, it had been established that the residents at this address were two journalists from Özgür Gündem who had moved out 15 or 20 days before. The police had found the two journalists concerned and had taken statements from them. The governor concluded from these facts that the impugned incident had been a settling of scores within the PKK.
(xxiv) Statements of Taner Şarlak, Murat Koparan and Erkan Dağdelen, dated 26 February 1996, taken by the Public Prosecutor no. 31562 in Hazro 72. The Hozat Public Prosecutor took statements from the witnesses concerning the contents of the document signed by them on 16 August 1993 and entitled “To the Public”. 73. The witnesses admitted to having signed this document but claimed that the contents were untrue. Mr Şarlak and Mr Koparan submitted that a person called İrfan Güler, who was responsible for their prison ward, had written this document and made them sign it. They believed that nothing unpleasant would befall them if they signed the document. They further averred that they had not seen a person called Ferhat Tepe; nor did they know of how he had been killed. Mr Dağdelen, however, asserted that he did not remember when and where he had signed this document.
(xxv) Letter from Public Prosecutor no. 25225 to the Elazığ Chief Public Prosecutor, dated 11 April 1996 74. In this letter, the Chief Public Prosecutor was informed that statements had been taken from Murat Koparan, Taner Şarlak and Erkan Dağdelen, that these persons did not know Ferhat Tepe and that they had denied the contents of the document entitled “To the Public”. It was further noted that on 15 November 1996 a permanent search warrant had been issued to find the perpetrators of the killing of Ferhat Tepe.
(xxvi) Correspondence among the national authorities and other relevant documents in regard to the investigation into Ferhat Tepe’s death 75. The following documents concern the internal communication of the national authorities concerning the investigation into the disappearance and subsequent death of Ferhat Tepe:
(α) Year 1993
(i) Letter of 29 July 1993 from the Bitlis Chief Public Prosecutor to the PTT Telephone Directorate;
(ii) Letter dated August 1993 from the Elazığ State Hospital Chief Doctor to the Sivrice Chief Public Prosecutor;
(iii) Letter of 4 August 1993 from the Bitlis deputy governor of Bitlis to the Bitlis governor requesting the latter to submit information pertaining to the fate of Ferhat Tepe;
(iv) Letter of 5 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(v) The Sivrice Chief Public Prosecutor’s decision of 7 August 1993 to indemnify those who were involved in the conduct of the autopsy on the body of an unidentified person (Ferhat Tepe);
(vi) Letter of 9 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(vii) Letter dated 9 August 1993 from Public Prosecutor no. 30760 to the PTT Telephone Directorate;
(viii) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Mayor of Elazığ;
(ix) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Registry Office enclosing Ferhat Tepe’s death certificate;
(x) Letter of 11 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Elazığ;
(xi) Letter of 16 August 1993 from the Sivrice Public Prosecutor to the Mayor of Elazığ;
(xii) Letter of 17 August 1993 from the Elazığ Public Prosecutor to the Minister and Deputy Minister of Justice;
(xiii) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Diyarbakır Chief Public Prosecutor’s office;
(xiv) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Bitlis Chief Public Prosecutor’s office;
(xv) Letter of 26 August 1993 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ;
(xvi) Letter dated 1 September 1993 from the public prosecutor, Süleyman Tutal, to the Chief Public Prosecutor’s office in Elazığ;
(xvii) Letter of 1 September 1993 from the Elazığ Chief Public Prosecutor to the Elazığ Governor’s office.
(xviii) Letter of 6 September 1993 from the Elazığ Chief Public Prosecutor to the Provincial Central Gendarme Command in Elazığ;
(xix) Letter of 15 September 1993 from the Diyarbakır Security Directorate Traffic Department to the Diyarbakır Chief Public Prosecutor’s office;
(xx) Letter dated 27 October 1993 from the Public Prosecutor Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(xxi) Report of 12 December 1993 prepared by the police officers Mr Nizamettin Elma and Mr Halit Yılmaz, informing the Security Director that it had been impossible to find those responsible for the killing of Ferhat Tepe;
(xxii) Letter of 28 December 1993 from the Bitlis Security Directorate informing the Chief Public Prosecutor of Elazığ it had been impossible to find those responsible for the killing of Ferhat Tepe.
(β) Year 1994
(i) Letter of 1 February 1994 from the Elazığ Chief Public Prosecutor requesting information from the Public Prosecutor, Mr Tuna Güngör;
(ii) Mr Tuna Güngör’s letter of 3 February 1994 addressed to the Chief Public Prosecutor of Elazığ, informing the latter that no evidence had been obtained in regard to the death of Ferhat Tepe;
(iii) Letter of 16 March 1994 from the Elazığ Chief Public Prosecutor requesting the Public Prosecutor Mr Süleyman Tutal to inform him of developments in the investigation into the death of Ferhat Tepe;
(iv) Letter of 21 March 1994 from Mr Süleyman Tutal informing the Chief Public Prosecutor in Elazığ that no evidence had been obtained about the persons responsible for the killing of Ferhat Tepe;
(v) Letter of 25 October 1994 from the Deputy General Director for the Council of Europe and Human Rights Affairs to the Ministry of the Interior and to the Ministry of Justice;
(vi) Letter dated 7 November 1994 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ;
(vii) Letter of 17 November 1994 from Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ.
(γ) Year 1995
(i) Letter dated 12 January 1995 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ;
(ii) Letter of 1 February 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s offices in Bitlis and Elazığ and to the Provincial Central Gendarme Command in Elazığ. Mr Tutal noted that there was a permanent search warrant for the person(s) responsible for the killing of Ferhat Tepe and requested those authorities to submit information every three months about the investigation;
(iii) Letter of 5 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(iv) Letters of 20 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(v) Letter of 20 March 1995 from the Elazığ Chief Public Prosecutor’s to Mr Süleyman Tutal;
(vi) Letter of 21 March 1995 from Mr Süleyman Tutal’s to the Chief Public Prosecutor’s office in Elazığ;
(vii) Letter of 27 March 1995 from the Elazığ Provincial Central Gendarme Commander, informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(viii) Letter of 13 June 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(ix) Letter of 26 June 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(x) Letter of 27 June 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xi) Letter of 11 July 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(xii) Letter of 27 September 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiii) Letter of 23 October 1995 from the Ministry of Foreign Affairs to the Ministry of Justice;
(xiv) Letter of 23 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xv) Letter of 27 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xvi) Letter of 27 October 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal;
(xvii) Letter of 21 November 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(xviii) Letter of 22 November 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal;
(xix) Letter of 7 December 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xx) Letter of 7 December 1995 from Mr Süleyman Tutal requesting the Chief Public Prosecutor at the Diyarbakır State Security Court to submit information as to whether Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and Mr Ömer Aceban had been kept in detention on remand in July and August 1993 and whether these persons had seen Ferhat Tepe in detention. He further requested information regarding the current addresses of these persons;
(xxi) Report of 29 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department.
(xxii) Letter dated 31 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department.
(δ) Year 1996
(i) Letter dated 5 January 1996, from the Presidency of the State Security Court to the Chief Public Prosecutor’s office at the same court, indicating the addresses of Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and providing information about them;
(ii) Letter of 2 February 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Hazro
(iii) Letter dated 12 February 1996 from the Chief Public Prosecutor’s office in Hazro to the Bitlis Security Directorate;
(iv) Letter of 26 February 1996 from the Hazro Security Director to the Chief Public Prosecutor’s office in Hazro;
(v) Letter of 8 March 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis;
(vi) Letter of 27 March 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(vii) Letters of 30 March 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(viii) Report of 30 March 1996 drafted by police officers, who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified;
(ix) Report of 31 March 1996 drafted by police officers who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified;
(x) Letter of 3 April 1996 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department;
(xi) Letter of 3 June 1996 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ;
(xii) Letter of 23 June 1996 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ;
(xiii) Letter of 3 July 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xiv) Letters of 30 September 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xv) Letter of 24 December 1996 from the Ministry of Foreign Affairs to the Ministry of Justice;
(xvi) Report of 25 December 1996, drafted by police officers, informing the Bitlis Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Letter of 27 December 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xviii) Letter of 30 December 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xix) Report of 31 December 1996, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified.
(ε) Year 1997
(i) Report dated 19 February 1997 drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ii) Letter of 5 March 1997 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ;
(iii) Report dated 14 March 1997, drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iv) Letter of 17 March 1997 afrom Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ;
(v) Letter of 27 March 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(vi) Report of 28 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Report of 30 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(viii) Report of 31 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Letter of 1 April 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(x) Report dated 3 June 1997, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xi) Report of 30 June 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xii) Letter of 30 June 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiii) Letter of 2 July 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xiv) Report dated 13 September 1997, drafted by gendarmes; noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Report of 28 September 1997, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvi) Report of 30 September 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Letter of 30 December 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xviii) Report of 31 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xix) Letter of 2 October 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis;
(xx) Report of 12 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xxi) Letter of 31 December 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis.
(ζ) Year 1998
(i) Follow-up report of 21 January 1998 about the suspects in respect of whom a search warrant had been issued;
(ii) Report of 31 March 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iii) Letter of 1 April 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(iv) Report dated 15 June 1998 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Follow-up report of 15 June 1998 about the suspects in respect of whom a search warrant had been issued;
(vi) Report of 25 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Letter of 25 June 1998 from the Mollakendi Gendarmes Station Commander to the Elazığ Provincial Central Gendarme Headquarters;
(viii) Report of 29 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Report of 30 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(x) Letter of 1 July 1998 from the Bitlis Şehit Fuat Bal Police Station Director to the Law and Order Department;
xi) Letter of 1 July 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xii) Letter of 6 July 1998 fro the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xiii) Letter of 15 July 1998 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending;
(xiv) Report dated 11 August 1998, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Letter of 1 October 1998 from the chief of Bitlis Şehit Fuat Bal Police Station to the Law and Order Department;
(xvi) Letter of 2 October 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(xvii) Follow-up report of 14 December 1998 about the suspects in respect of whom a search warrant had been issued.
(η) Year 1999
(i) Letter of 1 January 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ii) Report dated 21 January 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iii) Report dated 1 February 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(iv) Report dated 19 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Reports of 24 March 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vi) Report dated 24 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(vii) Letter of 7 April 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(viii) Report dated 14 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(ix) Report dated 21 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(x) Report of 30 June 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xi) Letter of 1 July 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xii) Report dated 22 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xiii) Follow-up report of 22 September 1999 about the suspects in respect of whom a search warrant had been issued;
(xiv) Report dated 29 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xv) Report of 30 September 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvi) Letter of 4 October 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xvii) Follow-up report of 12 December 1999 about the suspects in respect of whom a search warrant had been issued.;
(xviii) Report dated 13 December 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(xix) Letters of 31 December 1999 from the chief of the Bitlis Şehit Mustafa Yeter Police Station to the Law and Order Department;
(xx) Export of 31 December 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified.
(θ) Year 2000
(i) Letter of 5 January 2000 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the person(s) responsible for the killing of Ferhat Tepe could not be identified and that the investigation into the incident was still pending;
(ii) Letter dated 18 February 2000 from Public Prosecutor no. 24705 to the Chief Public Prosecutor’s office in Bitlis;
(iii) Follow-up report of 25 February 2000 about the suspects in respect of whom a search warrant had been issued.;
(iv) Report dated 25 February 2000 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified;
(v) Letter of 6 March 2000 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis;
(vi) Letter of 13 March 2000 from the Elazığ Provincial Central Gendarme Commander;
(vii) Report dated 1 May 2000 drafted by Public Prosecutor no. 24705, noting that the negatives of the films taken of the body of Ferhat Tepe had been given to an officer from the Provincial Central Gendarmes Command;
(viii) Letter dated 26 June 2000 drafted by Public Prosecutor no. 24705, informing the Elazığ Chief Public Prosecutor that every three months reports on developments in the investigation were received from the Bitlis and Elazığ Security Directorates and the Provincial Central Gendarme Headquarters and that a permanent search warrant had been issued in respect of the person(s) responsible for the killing of Ferhat Tepe.
(c) Unofficial documents 76. The applicant produced press releases concerning the alleged abduction and killing of Ferhat Tepe as well as the general situation in south-east Turkey at the relevant time. It was reported that Ferhat Tepe was the sixth correspondent of Özgür Gündem to be killed since the paper had gone into publication in May 1992. It was also stated that a previously unknown underground organisation calling itself the “Turkish-Ottoman Revenge Brigade” had claimed responsibility for the abduction of Ferhat in a telephone call to his family. 77. In a press release issued by Amnesty International on 6 March 1996, calling for urgent action, it was reported that the applicant, Ishak Tepe, had been taken into custody on charges of aiding the PKK. It was claimed that İshak Tepe had met the police officers against whom he had filed an official complaint after the murder of his son and his nephew and that he had been released after being brought before a court in Bitlis on 4 March 1996. Mr Tepe had not been subjected to any form of ill-treatment and had been able to see his wife and his lawyer while in police custody. 78. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this respect, three delegates of the Court took oral evidence between 9 and 14 October 2000 from twenty-four witnesses. A further nine witnesses had been summoned but did not appear for various reasons. The evidence given by the witnesses may be summarised as follows. 79. The applicant; who is currently living in İstanbul, was the provincial chairman of the DEP in Bitlis in 1993. He was at the same time a building contractor. During the taking of evidence in Ankara, in addition to his submission of the facts, the applicant stated the following. 80. At the relevant time, the applicant’s son Ferhat lived with him and helped him at his building site. Ferhat also worked for Özgür Gündem as a provincial reporter. He was not politically active. However, he had been taken into custody on two occasions before his disappearance. His first detention, on charges of aiding and abetting the PKK, took place three or four months before his release on 2 February 1992. The second arrest was probably on 12 July 1993, when he had not been taken into police custody. Ferhat was taken to the police station, where he met a police officer from the anti-terrorist department called Nurhan Şentürk, known as “sakallı” (the bearded one) in Bitlis and bearing the nickname “Hacı”. There were also two other men in the room whom Ferhat had never seen before. Ferhat felt that Hacı had taken him there to show him to these two newcomers. 17 or 18 days later Ferhat was abducted. 81. In the morning of 29 July 1993, at 6 a.m., the applicant received an anonymous phone call from a person claiming to belong to an organisation called the “Turkish-Ottoman Revenge Brigade” who declared that they were keeping his son as a hostage. In the applicant’s opinion, the anonymous person on the phone was General Korkmaz Tağma. He recognised the general’s voice from their meeting some 15 to 20 days earlier, when General Tağma had held a meeting with the provincial chairmen of all the political parties. 82. Immediately after this call, the applicant and his wife went to the Bitlis Security Directorate where they met the security director, Mr Orhan Ekinci, and the provincial governor of Bitlis, Mr Fethi Tunç. At the latter’s request, the applicant wrote a petition to the administrative authorities and to the public prosecutor complaining that his son had been abducted by contra-guerrillas operating within the State. He asked the authorities to take immediate action to find him. He refrained from naming any suspects at the time, in particular General Korkmaz Tağma, as he hoped to get his son back alive. The chief of police told the applicant that his son had not been taken into custody. 83. Later that day the applicant contacted Fatih Olcay, who had witnessed Ferhat’s abduction. Fatih told him that a tall person with a slight beard had held Ferhat by the arm and had taken him away. From his manner and the fact that he was holding a walkie-talkie in his hand, Fatih had deduced that he was a policeman. However, Fatih was unable to repeat these allegations at the police station since he was under pressure. 84. A construction worker called Suat also told the applicant that he had seen Ferhat being taken away in a car with the registration number 65 AD 095. The applicant did not see Suat again and later learned that Suat had gone to İstanbul. 85. The applicant’s nephew, Safiye Tepe, contacted former PKK members who had later become “confessors” (i.e. persons who cooperate with the authorities after confessing to having been involved with the PKK) for information about this case. One of them, A.İ., stated that General Korkmaz Tağma had ordered the killing of Ferhat. Some police officers and the JITEM (the gendarmes’ intelligence agency), led by Major Cem Ersever and the Turkish-Ottoman Revenge Brigade, were involved in this plot. A warfare specialist, Ahmet Demir, code name “Yeşil” (“the Green”) was at the head of this plot. Another “confessor “called Kenan – code name Cihan – confirmed that General Tağma had been involved in the killing of Ferhat. 86. A journalist, Soner Yalçın, published his interviews with Major Cem Ersever, the head of JITEM, who said that Ferhat Tepe and another person had been abducted by Ahmet Demir’s team, who had been assigned to the Diyarbakır-Bitlis-Muş-Bingöl zone. The JITEM headquarters were at the gendarmes’ interrogation centre in Diyarbakır, where Ferhat had been taken and murdered. 87. The witness is currently living in Manisa. He was on a visit to Bitlis at the end of July 1993. He stated that in the evening of 28 July 1993, around 5.30 or 6 a.m., he had been playing football in the yard of the Şemsi Bitlis primary school when he had seen Ferhat walk over. He noticed that a young man around the age of 20‑25, who was slightly bearded and dressed in civilian clothes was following Ferhat. They shook hands and walked away arm in arm, like ordinary friends. The witness did not see any cars around. The next day he heard that Ferhat was missing. 88. The witness denied the allegation that he had told the applicant about a tall bearded man, known in the area to be a policeman, or that this man had approached Ferhat, taken him by the arm and put him in a car. 89. The witness is a practising lawyer in İstanbul. He was the lawyer of Özgür Gündem at the relevant time and became the applicant’s counsel following the killing of his son. 90. The witness interviewed Mümtaz Çerçel in the Diyarbakır prison. The latter told him that he had seen Ferhat Tepe (“the journalist”) while being held in custody by the gendarmes. However, Mr Çerçel did not maintain his statement for fear of persecution. He also met Urfi Pasin and Rıza Demirtaş, who mentioned having seen Ferhat Tepe in custody. They were also afraid to testify before the authorities. They told the witness that a person by the name of Çetin Demirhan had also seen Ferhat and had even talked to him. The witness’s attempts to reach Mr Demirhan also failed as the latter was under threat of death because of this incident. The witness has never spoken to Murat Koparan, Taner Şarlak and Erkan Dağdelen. He did not take statements from Bahri Elçi and Migdat Yaşar. 91. The witness was the applicant’s business partner at the time. On 28 July 1993 he was told by Adnan Karslıoğlu that two police officers had made enquiries about Ferhat and the applicant. He reported this to Ferhat and asked him not to go anywhere. Ferhat was very calm about it and told him that he would be at home. That was the last time he had seen Ferhat. 92. The witness was the provincial commander of the Bitlis Gendarmes Headquarters at the relevant time. He was in charge of security and law-and-order services outside the borders of the municipality. He had no judicial authority. He was not involved in the investigation into the disappearance and murder of Ferhat, as the incident had taken place within the police authority zone. He heard from the intelligence services in the area that Ferhat was suspected at the time of being involved in money laundering business and that he might have been killed by the PKK. 93. The above witnesses were all police officers at the time in Bitlis occupying different functions in different departments, namely anti-terrorism, contraband and traffic. None of the witnesses were involved in the investigation into the disappearance and subsequent killing of Ferhat Tepe. Nor did they know of Ferhat, with the exception of Nurhan Şentürk, who said that Bitlis was a small town with a population of 28,000 where everyone knew each other. He had seen Ferhat before 28 July 1993, when the latter had made a statement at the police headquarters. Mr Şentürk did not remember when this statement had been made and what it had been about. However, the statement was sent to the Public Prosecutor, with a note that Ferhat was a PKK sympathiser. Mr Şentürk further stated that he had grown a beard at the time. He also stressed that Ferhat had never been taken into custody. 94. Mr Çavdar confirmed that Mr Şentürk’s nickname was “the bearded one”. Mr Pekdaşoğlu was first asked to give an account of what he had been doing on 28 July 1993 three days after the incident. He explained that he used to have a beige car at the time, with the licence plate number 65 DA 092, and that on 28 July 1993 this car had been parked in front of his house. He had not lent it to anyone. Eye-witnesses identified it as not being the vehicle involved in the incident. The car involved in the abduction had been a white Renault Toros. 95. The witness was a former member of the PKK, holding a leadership position in the organisation until he was caught on 28 December 1992. Benefiting from the confession law, he became a “confessor” in return for information he gave to the authorities. He was released in mid-1994. 96. In or around March 1992 the witness and two other local leaders of the PKK summoned Ferhat Tepe to Germak village in the Bitlis area and questioned him in relation to his activities. Subsequent to a second meeting held on 14 August 1992 in the mountains, in September 1992 Ferhat was sentenced to death on the grounds that he had been the cause of the killing of a female member of the PKK as a result of having had sexual intercourse with her and that he had used money collected for the PKK for his own purposes, i.e. to build a house and to buy a car. 97. The witness explained that the PKK carried out death sentences by shooting where security did not pose a problem. Alternatively, other methods were used, such as throwing people down from rocks and strangling or drowning. Subsequent to his arrest, the witness reported to the police that Ferhat was on the list of persons sentenced to death by the PKK. However, he did not know whether Ferhat had been killed by the PKK. 98. The witness was the commander of the Diyarbakır provincial gendarmes headquarters from 1992 to 1995. He was in charge of law and order and security in the rural areas within the boundaries of the province of Diyarbakır, which did not include the area around Bitlis. His organisation did not carry out any investigation into Ferhat Tepe’s death. He was asked by the Chief Public Prosecutor at the Diyarbakır State Security Court whether Ferhat Tepe had been taken into their custody. After examining the custody records and consulting his colleagues in all the gendarmes stations under his command, the witness reported back that no one of that description had been brought to their premises or taken into custody or involved in any incident in their region. 99. The witness admitted to mistakes or negligence in the keeping of the custody records at headquarters. He stated that, for security reasons, it was routine practice to blindfold people taken into custody when they arrived at headquarters. The blindfold was taken off once they were inside and, after that, they were never blindfolded. While he was serving in Diyarbakır, the witness heard some rumours about a Turkish-Ottoman Revenge Brigade, but there was never any concrete evidence of the existence of such an organisation. 100. The witness had been the head of the interrogation unit composed of ten officers at the Diyarbakır provincial gendarmes headquarters. His recollection of Ferhat Tepe’s death was limited to the question asked by his commander, Mr Eşref Hatipoğlu, namely whether Ferhat had been taken into custody. He consulted the records and told his commander that Ferhat had not been detained. 101. The witness was not in charge of keeping the custody records and there was an officer specifically responsible for that duty at the headquarters. He asserted that detainees were never blindfolded during interrogation and that there was never any physical contact between the interrogators and those detained. He denied the suggestion that anybody had been tortured in the interrogation unit, since medical certificates were issued at the end of the custody period. He further stated that, at the relevant time, there had been twenty detention cells. If more than twenty detainees were brought in, they were transferred to other districts and held there until a cell became vacant in Diyarbakır. 102. The witness was the Bitlis Security Director in command of a staff of eight hundred people at the relevant time. On 29 July 1993 he was on duty when the applicant, along with his wife and daughter, came to the Bitlis police headquarters to tell him that he feared for the life of his son who had disappeared. The witness reassured the applicant, saying that he had checked with his colleagues that Ferhat had not been taken into their custody. He explained that every morning he received a list of the persons taken into custody by any of the security forces in his zone. This list was drawn up by the provincial police headquarters in the form of a report, listing the incidents of the day in the municipal area. It was then sent to the governor’s office. A similar report was submitted to the governor by the gendarmes responsible for rural areas. There were also daily security meetings held in the province with the Governor, which the witness and Yüksel Özçelik attended. 103. The witness assigned a police superintendent to the task of keeping in touch with the Tepe family. Statements were taken from all the persons named by the family. The information regarding the disappearance of Ferhat was communicated by radio and telex to all provinces in Turkey. The witness confirmed that he had been asked by the applicant to trace phone calls, but this procedure had not led anywhere, as in 1993, it was not possible to trace calls made from public telephone booths. Unable to obtain traceable bank notes from the National Police Headquarters owing to bureaucratic obstacles, he could not give cash to the applicant to pay the ransom. 104. The witness was the doctor who signed the autopsy report. At the relevant time, he was a general practitioner working at the district health centre in the Sivrice district of Elazığ. He was not a pathologist qualified to conduct autopsies. He had, however, witnessed many autopsies carried out on persons drowned in Lake Hazar. He claimed that there were ten to fifteen drowning incidents per day at the relevant time. 105. The witness said he remembered the incident very well. He arrived at the scene of the incident at about 8 a.m. on 4 August 1993. After examining the body, he concluded that it was definitively a case of death by drowning which had occurred within a maximum of four hours. The deceased’s lips were discoloured as though he had been deprived of oxygen and cyanosis had occurred. Rigor mortis had not set in. He could not see any scratches on the body. Nor did he find any fracture or bruising thereon. There was no sign that the deceased had been either in a fight or hit, beaten, pushed, thrown or killed, or that the body had been brought and thrown into the water. However, the witness saw some marks on the neck and diagnosed them as being erythema, an allergic reaction. He did not think it was necessary to note this in the autopsy report. The witness considered it unnecessary to call in a pathologist or to apply to superior authorities for an autopsy, since he had no doubt that it was a case of ordinary drowning. 106. The witness found the body on 4 August 1993, at 7.30 a.m. He had gone to the lake early in the morning for fishing. He saw the body half submerged in the water. The body had underpants on. He pulled the body onto the shore and left it right by the edge of the water. He did not notice any particular features on the body, such as bloodstains or marks of any kind. He saw that there were some clothes – trousers and a shirt which had been placed on the shoes – about half a metre from the shore. He then went to a petrol station and called the Sivrice gendarmes station. He stayed on the spot for about an hour and a half and statements were taken from him by the public prosecutor. 107. The witness, who signed the autopsy report, was at the time the Sivrice Public Prosecutor in Elazığ. Although it was not the usual practice, he had photographs taken of the body for identification purposes following the post-mortem examination. At the beginning of his testimony, the witness stated that he had not taken any steps to see whether the body he had found matched any person reported as missing. After consulting the doctor and having heard the witnesses, he decided that a systematic autopsy was unnecessary as there was nothing suspicious about the incident and that he had come across similar drowning incidents in the past. However, he had not encountered a case where the identity of the victim was unknown and the identity card missing. Later he said that he had instructed both the gendarmes and the police to investigate whether anyone had reported a relative missing. He had the body sent to the morgue of the Elazığ State Hospital as there was no suitable morgue in Sivrice. He was informed later that the body had been buried because of a technical problem in the morgue. However, he did not know when the body had been buried and who had ordered the burial. He did not know anything about Ferhat Tepe until Ferhat’s cousin, a lawyer, had applied to their office five days after the incident. When the witness learned that the scene of the incident fell within the territorial jurisdiction of Elazığ, he issued a decision of non-jurisdiction on 9 August 1993.
(b) Süleyman Tutal 108. The witness was the public prosecutor in Elazığ, in charge of the investigation into the death of Ferhat Tepe. In the investigation file and the autopsy report he received, there were no findings indicating that the deceased had been tortured. There was no sign of any ill-treatment on the photographs. In their statements made at the Hozat Public Prosecutor’s office, Mr Murat Koparan, Mr Taner Şarlak and Mr Erkan Dağdelen had denied the allegations contained in the declarations addressed “To the Public”. There was therefore no evidence that Ferhat had been abducted or killed under torture. The witness considered the incident to be a case of ordinary death by drowning and, accordingly, did not deem it necessary to conduct any further investigation.
(c) Hayri Özdal 109. The witness was the Chief Public Prosecutor in Bitlis at the time of the events. He was on judicial leave from 20 July to 6 September 1993. On 28 September 1993 he was appointed as a judge to a court in İstanbul. He could not contribute to the elucidation of the facts.
(d) Erdal Poyraz 110. The witness was one of the two Public Prosecutors who were deputies to the Chief Public Prosecutor in Bitlis. He was on duty when the Chief Public Prosecutor was on leave. He issued a decision of non-jurisdiction on 12 August 1993 after the body had been found and sent the preliminary investigation file he had prepared to the Sivrice Chief Public Prosecutor’s office. He said the case had struck him as a unique and unusual one at the time. However, he could not remember whether he had done anything about the case, but said: “I must have started the investigation”.
(e) Beytullah Metin 111. The witness was a trainee public prosecutor in Ankara in July and August 1993. He did not take part in any investigation concerning Ferhat Tepe.
(f) Şükrü Cüneyt Hamdovalı 112. The witness was assigned to the Bitlis office as a public prosecutor on 24 February 1993. He was on duty in July and August 1993 along with his colleague, Mr Erdal Poyraz. He confirmed that Mr Poyraz had been in charge of the investigation while he personally had not been involved in it. He did remember, however, that there had been some incidents during the funeral. 113. On 20 July 1993 all three witnesses were arrested on suspicion of aiding and abetting members of the PKK and taken into custody at the Hazro gendarmes headquarters, where they stayed for two days. The witnesses were then taken to Diyarbakır and kept at the gendarmes headquarters between 22 July and 13 August 1993. On the latter date, the Diyarbakır State Security Court ordered the witnesses’ detention on remand and they were transferred to Diyarbakır E-type Prison. They stayed in the same cell for two months until the State Security Court ordered their release following acquittal. 114. The witnesses denied the suggestion that, during their detention, they had seen Ferhat Tepe being tortured or killed. Nor had they known of him or heard of a journalist being detained in the same place with them. As regards the document addressed to the public which they had signed in prison, the witnesses alleged that the persons in the ward who had told them to sign this document had tricked them into it, as it contained statements which they had never uttered. They thought that it was a document prepared for the purposes of their defence in court; they had not read the document before signing it. The witnesses further stressed that they had been very young at the relevant time (16, 20, and 14 years old respectively) and that the persons who had made them sign the document had taken advantage of their youth and inexperience. The witnesses finally claimed that they had learned of the content of the impugned document when the Hazro Public Prosecutor had taken their statements about it on 26 February 1996. | [
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7. The applicant is an Italian national, born in 1906 and living in Rome. 8. A.M.G. was the owner of a flat in Rome, which she had let to M.T. 9. In a writ served on the tenant on 31 December 1990, the owner informed the tenant of her intention to terminate the lease on expiry of the term on 30 June 1991 and summoned him to appear before the Rome Magistrate. 10. By a decision of 7 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1992. 11. On 13 December 1994, the owner served notice on the tenant requiring him to vacate the premises. 12. On 3 May 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 30 May 1995. 13. Between 30 May 1995 and 30 January 1997, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the owner was not entitled to police assistance in enforcing the order for possession. 14. On an unspecified date of 1995, the applicant, became the owner of the flat. 15. On 30 May 1997, she served notice on the tenant requiring him to vacate the premises. On 14 July 1997, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 25 July 1997. 16. Between 25 July 1997 and 11 September 1998, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 17. On 13 October 1998, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 11 November 1998. 18. Between 11 November 1998 and 16 November 1999, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 19. On 19 October 2000, the applicant served notice on the tenant requiring him to vacate the premises. 20. On 9 November 2000, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 December 2000. 21. On 7 December 2000, the bailiff made one attempt to recover possession which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 22. Subsequently, pursuant to Law no. 388 of 23 December 2000 and to Law Decree no. 247 of 2 July 2001, the eviction proceedings have been suspended until 31 December 2001. | [
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6. The applicant is an Italian national, born in 1958 and living in Rome. M.V. was the owner of a flat in Rome, which he had let to T.C. 7. In a registered letter of 24 June 1983, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date. 8. The tenant told the owner that she would not leave the premises. 9. In a writ served on the tenant on 3 August 1984, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 10. By a decision of 3 December 1984, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 3 December 1985. 11. On an unspecified date, the owner served notice on the tenant requiring her to vacate the premises. 12. On an unspecified date, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 23 April 1987. 13. Between 23 April 1987 and 14 February 1989, the bailiff made eleven attempts to recover possession. Each attempt proved unsuccessful, as the owner was not entitled to police assistance in enforcing the order for possession. 14. In the meanwhile, on 12 December 1988, the applicant became the owner of the apartment and pursued the enforcement proceedings. 15. Between 13 June 1989 and 27 July 2000, the bailiff made thirty-nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 16. On 20 June 2000, the applicant recovered possession of the flat with the assistance of the police. | [
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8. The applicants were born in 1921 and 1953 respectively and live in Munich. The first applicant is the second applicant’s mother. 9. The applicants own real property in the south-eastern part of the Greek island of Tinos, where they spend part of their time. The first applicant is the co-owner of a house and a plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp by the coast of Ayios Yiannis. 10. On 4 December 1985 the prefect (νομάρχης) of Cyclades redrew the boundaries of the settlement (οικισμός) of Ayios Yiannis in the municipality of Dio Horia and of the settlements of Ayia Varvara, Ayios Sostis and Lautaris in the municipality of Triandaru (decision no. 9468/1985). On 6 May 1988 the prefect again redrew the boundaries of the settlements of Ayios Yiannis and Ayios Sostis (decision no. 2400/1988). 11. On 18 March 1993 the town-planning authority of Syros issued building permit no. 620 on the basis of the prefect’s decision no. 9468/1985. Another permit (no. 298) had been issued on the same basis by the same authority in 1992. 12. On 21 July 1993 the applicants and the Greek Society for the Protection of the Environment and Cultural Heritage lodged an application for judicial review of the prefect’s decisions nos. 9468/1985 and 2400/1988 and of building permit no. 620/1993 with the Supreme Administrative Court. On the same date a second application was lodged by the same persons for judicial review of the prefect’s two decisions and of building permit no. 298/1992. The basic argument of the applicants before the Supreme Administrative Court was that the prefect’s decisions, and consequently the building permits, were illegal because in the area concerned there was a swamp and Article 24 of the Greek Constitution, which protects the environment, provided that no settlement should be built in such a place. 13. On 10 July 1995 the Supreme Administrative Court considered that the applicants had locus standi because they owned property in the area concerned. The court held that it could not review the prefect’s decision no. 9468/1985 directly because the application had not been lodged within the time-limit prescribed by law. However, it could review the two building permits issued on the basis of that decision and, in the context of this review, the court was obliged to examine the constitutionality of the prefect’s decision. The decision was found to have violated Article 24 of the Constitution, which protects the environment, because the redrawing of the boundaries of the settlements put in jeopardy the swamp in Ayios Yiannis, an important natural habitat for various protected species (such as birds, fishes and sea-turtles). It followed that the building permits were also unlawful and had to be quashed. Moreover, the court quashed the prefect’s decision no. 2400/1988 because it had not been published in the Official Gazette in the manner prescribed by law (decisions nos. 3955/1995 and 3956/1995). 14. In 1996 the prefect issued two decisions (nos. DP2315/1996 and DP2316/1996) which excluded the contested buildings from demolition. 15. On 21 April 1997 a special committee of the Supreme Administrative Court found that the authorities had failed to comply with the above decisions. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries (minutes no. 6/1997). 16. On 31 January 1991 the first applicant and others instituted civil proceedings against a neighbour, M., in the Syros Court of First Instance (Πολυμελές Πρωτοδικείο). They claimed that he had unlawfully taken over part of their land in Ayios Yiannis. On 14 February 1992 the court found in favour of the plaintiffs. 17. On 30 March 1992 M. entered a caveat against this judgment (ανακοπή ερημοδικίας), which had been given in his absence. His application was rejected on 23 November 1992 (decision no. 138/1992). On 28 January 1993 M. appealed against that decision. The Aegean Court of Appeal (Εφετείο) reversed decision no. 138/1992 and sent the case back to the first-instance court (decision no. 120/1993). 18. A hearing took place on 14 January 1994. In a preliminary decision of 31 March 1994, the first-instance court ordered investigative measures. Witnesses were heard on 13 April 1995, 4 July 1995, 10 October 1995, 12 December 1995, 12 February 1996 and 2 April 1996. 19. Following an application by the first applicant on 15 March 1998, a hearing was set down for 11 December 1998. The hearing was finally held on 28 May 1999. On 21 June 1999 the first-instance court found in favour of the first applicant (decision no. 98ΤΠ/1999). 20. On 7 December 1999 M. appealed against that decision. The proceedings are currently pending before the Aegean Court of Appeal. The parties have not yet applied for a hearing to be fixed. 21. On 23 June 1993 the applicants received a notice to the effect that their house in Ayia Kiriaki-Apokofto had been built without authorisation and should be demolished. The applicants appealed to the competent administrative board. Their appeal was rejected on 28 September 1994. 22. On 6 October 1994 they applied to the Supreme Administrative Court for judicial review of the decision of the administrative board. On a request by the applicants, the Supreme Administrative Court decided to suspend the demolition of the applicants’ house (decision no. 790/1994). 23. At first, the hearing was set down for 28 November 1995 but it was repeatedly postponed. 24. In 1999 a new law (no. 2721/1999) changed the rules of jurisdiction and the case was referred to the Piraeus Court of Appeal, which heard the case on 27 June 2000. The proceedings are still pending. | [
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7. The applicant lives in Grottaferrata (Rome). 8. She is the owner of a flat in Rome, which she had let to B.F.R. 9. In a writ served on the tenant on 4 February 1991, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1991 and summoned her to appear before the Rome Magistrate. 10. By a decision of 29 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 July 1992. 11. On 7 October 1992, 20 September 1995 and 10 February 2000, the applicant served notice on the tenant requiring her to vacate the premises. 12. On 7 December 1992, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 December 1992. 13. Between 15 December 1992 and 25 February 1993, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 14. On 13 October 1995, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 October 1995.
Between 31 October 1995 and 6 November 1996, the bailiff made six attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 15. On 28 February 2000, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 24 March 2000. 16. Between 24 March 2000 and 13 July 2000, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as, the applicant was not entitled to police assistance in enforcing the order for possession. 17. On 24 July 2000, the applicant recovered possession of the flat. | [
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7. The applicant was born in 1932 and lives in Benevento. 8. He is the owner of a flat in Benevento, which he had let to N.C. 9. In a writ served on the tenant on 27 April 1994, the applicant informed the tenant of his intention to terminate the lease and summoned the tenant to appear before the Benevento Magistrate. 10. By a decision of 25 May 1994, which was made enforceable on the same day, the Benevento Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1996. 11. On 30 November 1996, the applicant served notice on the tenant requiring him to vacate the premises. 12. On 10 February 1997, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 25 February 1997. 13. Between 25 February 1997 and 9 November 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 14. Pursuant to Section 6 of Law no. 431/98, the tenant asked the Benevento District Court to set a new date for the enforcement of the order for possession. The date was set for 25 April 2000 and then for 30 September 2000. 15. On 12 October 2000, the applicant served notice on the tenant requiring him to vacate the premises. 16. On 4 November 2000, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 2000. 17. Between 27 November 2000 and 26 April 2001, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance. 18. A new attempt of the bailiff to enforce the order for possession was set for 21 June 2001. 19. On 8 August 2001, the applicant recovered possession of the flat. | [
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5. On 23 May 1988 the applicant filed an action for damages with the Košice I District Court. He claimed compensation from several persons on the ground that his house had been damaged as a result of a road traffic accident. 6. On 3 November 1993 the Košice I District Court allowed the applicant’s claims in part. 7. The applicant and one of the defendants appealed. The case file was submitted to the Košice Regional Court on 27 February 1995. On 24 August 1995 the latter quashed a part of the first instance judgment and ordered the District Court to take further evidence on the relevant claims. 8. The District Court instructed an expert to submit an opinion, and it heard the parties on 18 December 1995 and on 23 April 1996. A second expert was appointed by a decision delivered on 2 December 1997. He submitted the opinion on 31 December 1997. The applicant challenged both the expert and the District Court judge. 9. The case file was submitted to the Regional Court, between 12 January 1998 and 12 March 1998, which granted the applicant’s request for exclusion of the District Court judge. 10. On 23 July 1998 the District Court asked the parties to submit comments on the expert opinion. The applicant replied on 3 August 1998. 11. The case was adjourned on 26 October 1998, on 30 November 1998, on 8 February 1999 and on 22 March 1999. On 20 July 1999 the District Court appointed another expert who submitted her opinion on 17 September 1999. Hearings before the District Court were held on 2 May 2000 and on 30 October 2000. 12. On 24 October 2000 the Constitutional Court found that the Košice I District Court had violated the applicant’s constitutional right to have his case examined without undue delay. In its finding, the Constitutional Court held that the complex character of the case could not, on its own, justify the overall length of the proceedings, and that no delays in the proceedings could be imputed to the applicant. The Constitutional Court further held that the Košice I District Court had remained inactive for an overall period of approximately four years. 13. On 15 January 2001 the Košice I District Court delivered a second judgment on the case. It became final on 11 May 2001. | [
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4. The applicant was born in 1953 and lives in Fintice. 5. On 29 December 1994 the applicant filed an action for outstanding salary to the Prešov District Court. 6. The District Court heard the parties on 22 March 1995. It discontinued the proceedings in respect of two defendants. 7. On 10 May 1995 the District Court delivered an interim judgment to the effect that the defendant owed salary to the applicant. 8. On 19 June 1995 the defendant appealed. The case file was submitted to the Košice Regional Court on 22 August 1995. On 29 March 1996 the latter quashed the judgment of 10 May 1995. 9. In October 1996 the above District Court’s decision of 22 March 1995 was served on the parties. On 14 October 1996 one of the defendants appealed and challenged the District Court’s decision on costs of the proceedings. 10. Hearings before the District Court were held on 13 November 1996, 18 December 1996 and on 23 April 1997. On 9 January 1997 the case was taken over by another judge. 11. On 9 June 1997 the case file was submitted to the Prešov Regional Court for a decision on the defendant’s appeal of 14 October 1996. The Regional Court decided on the appeal on 27 June 1997 and the case file was returned to the District Court on 7 October 1997. 12. Another hearing before the District Court was held on 25 May 1998. The parties failed to appear before the court on 3 June 1998. On 30 September 1998 the District Court heard the applicant. 13. On 12 October 1998 the defendant requested the District Court to take further evidence. The District Court heard witnesses on 26 October 1998 and in the course of November 1998 it obtained further documentary evidence. On 3 December 1998 the applicant specified his claim. 14. Hearings before the District Court were held on 27 January 1999 and on 1 February 1999. On 3 February 1999 the District Court dismissed the applicant’s action. 15. On 19 March 1999 the applicant appealed. The case file was submitted to the Prešov Regional Court on 27 April 1999. On 20 December 1999 the appellate court quashed the first instance judgment. The case file was returned to the District Court on 10 January 2000. 16. Hearings before the District Court were held on 20 March 2000 and on 10 May 2000. On 1 June 2000 the District Court ordered that an expert opinion be submitted within fifty days. On 16 September 2000 the expert requested the District Court to specify her task. The District Court replied to the expert on 25 September 2000. On 2 January 2001, 5 April 2001 and on 11 May 2001 the District Court urged the expert to submit the opinion. 17. On 11 March 2001 the expert requested the defendant to submit further information to her. The defendant complied with the request on 26 June 2001. The expert opinion was submitted to the District Court on 12 July 2001. On 27 August 2001 the District Court asked for the parties’ comments on the opinion. The parties replied in September 2001. 18. A hearing before the District Court was held on 24 October 2001. The applicant requested that a second expert opinion be ordered. On 2 November 2001 the applicant specified the issues to be addressed by the second expert. 19. On 31 July 2001 the applicant complained about the length of the proceedings to the Constitutional Court. On 1 February 2002 he supplemented his submissions in that, inter alia, he claimed compensation pursuant to Article 127 of the Constitution, as in force from 1 January 2002. 20. On 28 February 2002 the Constitutional Court found that the Prešov District Court had violated the applicant’s constitutional right to have the case examined without undue delays. In its finding the Constitutional Court admitted, on the one hand, that the factual background of the case was complex. On the other hand, the Constitutional Court found that what was at stake for the applicant called for particular diligence and that no particular delays in the proceedings were imputable to the applicant. The decision stated that the District Court had failed to proceed with the case effectively in that, in particular, it had failed to ensure that the expert opinion was submitted in time. In the decision the Constitutional Court did not address the applicant’s claim for damages under Article 127 of the Constitution. 21. In a judgment delivered on 18 September 2002 the Prešov District Court ordered the defendant to pay salary to the applicant for the period from 14 November 1992 to 30 September 2002. Subsequently the District Court delivered a decision rectifying clerical errors in the judgment. On 27 November 2002 the defendant appealed. The proceedings are pending. | [
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5. On 24 February 1999 the applicant claimed before the Prešov District Court that the maintenance which her former husband had been earlier ordered to pay in respect of their two minor children should be increased. 6. The first hearing in the case was scheduled for 24 May 2000. 7. On 1 June 2000 the Constitutional Court found that the Prešov District Court had violated the applicant’s constitutional right to have her case examined without undue delay. In its finding, the Constitutional Court held, in particular, that what was at stake for the applicant required special diligence and that the District Court had remained inactive for approximately fifteen months. The Constitutional Court considered irrelevant that the delay was due to the heavy workload of the judges. 8. On 8 November 2000 the Prešov District Court increased the maintenance due by the applicant’s former husband with retroactive effect. 9. The applicant appealed and claimed that the increase awarded should be higher. 10. On 31 May 2001 the Prešov Regional Court delivered a judgment by which it increased the sums which the applicant’s former husband was to pay. The Regional Court’s judgment was served on the applicant on 25 July 2001. | [
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7. The applicant was born in 1948 and is currently serving a sentence of imprisonment in HMP Verne. 8. The applicant owned a garage in Dorset and had business connections in Spain. He had two Mercedes cars each of which had a false compartment in the fuel tank. The false compartments could hold up to 45 kilograms of cannabis resin. From 1994 he was suspected by the police of being involved in drug trafficking. The police also suspected him of being involved in the handling of stolen goods, including stolen vehicles. 9. On 22 February 1995 he was arrested by the Dorset police in relation to their suspicions of his handling stolen goods. Whilst he was in custody, a listening device was installed at his garage premises which remained there and active until 26 July 1995 when it was discovered. 10. On 30 December 1996 an indictment was signed charging the applicant with conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. The prosecution evidence against the applicant relied on tape recordings made from the listening device which had been installed by the police at the applicant’s garage premises. It was acknowledged by the prosecution that without the evidence from the tapes, there was no prima facie case against the applicant. 11. The applicant objected to the admission of the tape recordings as evidence in his trial. He argued inter alia that the original grant of authority and the renewal of authority for the placement of the listening device were not in compliance with the Home Office Guidelines, which governed the use of surveillance equipment by the police at the relevant time. He submitted that his prosecution ought to be stayed as an abuse of the process of the court, alternatively the tape evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). 12. A preliminary hearing was held on the matter of the admissibility of the tape recordings. His Honour Judge Pryor QC held on 8 July 1997 that he was satisfied that the original authority for the use of the surveillance equipment was properly granted and that there were proper grounds for renewal, though he made some criticism of the lack of documentation on the renewals and noted that there had been a technical infringement in that one renewal took place a day late. The judge concluded that the tapes were admissible as evidence and should not be excluded under section 78 of PACE. 13. Following the admission of the tapes as evidence, the applicant pleaded guilty to the charges of conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. On 5 September 1997 he was sentenced to five years’ imprisonment. 14. The applicant was granted leave to appeal against his conviction. On 24 September 1997, the Court of Appeal held that in the light of the applicant’s pleas of guilty his convictions could not be regarded as “unsafe” and rejected his appeal. | [
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7. The applicant was born in 1929 and lives in Gdańsk. 8. In June 1993 the counsel for H.K. (“the petitioner”) filed with the Tomaszów Mazowiecki District Court (“the court”) a petition to dissolve joint ownership of a certain property, belonging to H.K. and K.K. who owned four fifths of it , and to M.S., who owned one fifth. On 6 July 1993 the court returned the statement of the claim as H.K. had failed to pay the court fees. On 8 July 1993 she requested the court to exempt her from the court fees. On 14 July 1993 the court allowed her request. 9. The first hearing in the case was held on 10 September 1993. At the hearing H.K. requested the court to summon W.S., the applicant and J.S., who were successors of the late M.S. as parties to the case. 10. On 14 December 1993 and on 31 January 1994 the applicant filed her pleadings with the court. 11. On 20 December 1993 the court stayed the proceedings on the ground of the petitioner’s failure to indicate service addresses of certain of the parties. On 2 February 1994 the petitioner requested the court to resume the proceedings. On 4 February 1994 the court allowed this motion. 12. On 22 March 1994 the second hearing was held before the court. The applicant was absent. The hearing was adjourned until 26 April 1994. 13. At the hearing held on 26 April 1994 the court heard the petitioner and the applicant. The parties were given a fourteen-day time-limit to state their position with respect to H.K.’s petition to have the property divided, and also to submit their comments on the division proposal. The hearing was adjourned until 24 June 1994. 14. On 6 May 1994 the court received the applicant’s letter expressing her position as regards the petition. 15. On 24 June 1994 the court held another hearing. The applicant was absent. The court heard K.K. and granted the parties seven days to submit motions for any evidence to be taken. The hearing was adjourned until 6 September 1994. 16. On 17 August and 6 September 1994 the applicant filed her further pleadings with the court. 17. The applicant did not attend the hearing held on 6 September 1994. The court informed the parties about her pleadings. In view of their large volume and failure to produce copies for the other parties, the court ordered the applicant to provide it with the necessary number of copies and granted the other parties seven days to comment on her pleadings. The hearing was adjourned until 3 November 1994, but the court decided to inspect the property on 14 October 1994. 18. On 15 September 1994 J.S. informed the court that he wished to be paid off by H.K. and K.K. and that he gave up his claim for the physical division of the property. 19. On 27 September 1994 the petitioner’s counsel replied to the applicant’s pleadings, submitting that in almost all of her pleadings she had insulted the court and the parties. Moreover, she had alleged that all the witnesses were lying, even though no witnesses had been heard so far. On the whole, she had made no valuable contribution to the proceedings and had not adduced any evidence. Subsequently, K.K.’s counsel commented in a similar way on the applicant’s conduct. 20. On 30 September and 11 October 1994 the applicant filed further pleadings with the court. 21. On 14 October 1994 the court inspected the property in issue and heard two witnesses. 22. On 21 October 1994 the applicant filed further pleadings with the court. 23. At the hearing held on 3 November 1994 the applicant was again absent. The court heard evidence from three witnesses and adjourned the hearing until 21 December 1994. 24. On 10 November 1994 the petitioner’s counsel requested the court to interview a further six witnesses. On 28 November 1994 the applicant filed further pleadings with the court. 25. On 30 November 1994 the court heard evidence from one witness. 26. The applicant was present at the next hearing in the instant case, which was held on 20 December 1994. At her request the court swore in two witnesses before it heard them. The hearing was adjourned until 27 January 1995. 27. On 5 January 1995 the applicant filed another set of pleadings with the court. 28. On 27 January 1995 the court held the next hearing. The applicant was absent. The court heard one witness and adjourned the hearing until 3 March 1995. 29. On 20 February 1995 the applicant proposed in her pleadings that the property be divided into two equal parts, one for her and her father W.S. and the second for the petitioner H.K. and the party K.K. On 1 March 1995 the petitioner H.K. filed with the court her proposal as to the physical division of the property. 30. The next hearing was held on 3 March 1995. The court granted the parties seven days within which to comment on both proposals and adjourned the hearing until 4 April 1995. 31. On 15 March 1995 the petitioner submitted to the court that the applicant, together with her father, owned 2/15 of the property in question and the division proposed by her would be unjustified. On 23, 25 and 28 March 1995 the applicant filed her further pleadings with the court. 32. On 4 April 1995 the court held the next hearing. 33. In view of the applicant’s absence, and that of her father W.S. and J.S., the court decided to ask the Gdańsk District Court and the Gdynia District Court for their assistance in interviewing the witnesses. It also decided to appoint the expert J.G. to prepare an opinion as to whether it was possible to divide the property between the petitioner and other parties, including the one-fifth share belonging to W.S., the applicant and J.S. On 18 April 1995 the court prepared a list of questions to be asked by the Gdańsk and Gdynia courts. On 11 May 1995 the court requested the Gdynia District Court to question J.S. and enclosed the list of questions to be put to him. On the same day the court requested the Gdynia District Court to hear the applicant and her father W.S. 34. On 22 May 1995 the court sent the case-file to the expert J.G. and ordered him to prepare the opinion within one month. The expert submitted his report on 23 June 1995. He stated that it was possible to divide the property between the petitioner and K.K., but that physical separation of one-fifth of the property was not possible since there would be no access to the parts thus formed. 35. On 29 May 1995 the Gdańsk District Court fixed the date for hearing the applicant and her father, as decided on 11 May 1995 (see above), for 26 June 1995. On that date the Gdańsk District Court heard the applicant, but in view of the absence of her father who was also to be interviewed, and at the applicant’s request, the court decided to interview him at home. On 7 September 1995 the Gdańsk Court interviewed the applicant’s father W.S. at his home. The court ascertained that W.S. was unable to answer any questions and did not remember any facts relevant to the case. The Gdańsk District Court then decided to return the file to the Tomaszów Mazowiecki District Court. 36. On 12 June 1995 the Gdynia District Court held a hearing to which J. S. was to be summoned to give evidence. J.S. failed to comply with the summons. The Gdynia District Court adjourned the hearing until 13 July 1995. 37. On 5 July 1995 the applicant filed pleadings with the court, maintaining her proposal of dividing the property into two equal parts, as she had submitted on 20 February 1995. 38. On 10 July 1995 the petitioner’s counsel agreed in general with the expert’s conclusions that it was possible to divide the property in question, but proposed a different manner of division and therefore requested the court to summon the expert to the hearing. 39. At the hearing held before the Gdynia District Court on 13 July 1995 J.S. was present but the petitioner H.K. and the party K.K. were absent. The District Court therefore adjourned the hearing until 18 September 1995. On 18 September 1995 none of the parties appeared before the District Court despite the fact that they had been properly summoned. The hearing was adjourned until 30 October 1995. 40. On 20 October 1995 the Tomaszów Mazowiecki District Court held a hearing. The court considered that in view of the forthcoming hearing in Gdynia the hearing should be adjourned until 5 December 1995. The court also decided to summon the expert J.G. to that hearing. On 23 October 1995 the court enquired of the Gdynia District Court about the outcome of the assistance proceedings before the latter court. 41. Subsequently, the hearing fixed for 30 October 1995, which was to be held before the Gdynia District Court, was rescheduled for 29 November 1995 since the presiding judge had fallen ill. On 29 November 1995 the parties failed to attend the session of the Gdynia District Court. The session was adjourned until 7 February 1996. 42. In a letter of 1 December 1995 the expert J.G. informed the Tomaszów Mazowiecki District Court that he was unable to attend the hearing on 5 December 1995 for professional reasons. The next hearing was held before the court on 5 December 1995. During that hearing the petitioner H.K. lodged a motion claiming acquisitive prescription of one-fifth of the property in question. The court adjourned the hearing. 43. On 8 December 1995 the Tomaszów Mazowiecki District Court again enquired of the Gdynia District Court about the execution of its request to hear evidence from J.S. On 14 December 1995 the latter court replied that, owing to the absence of the parties, the session at which they were to be interviewed had been adjourned until 7 February 1996. 44. On 8 January 1996 the Tomaszów Mazowiecki District Court decided to return the petitioner’s motion for acquisitive prescription since the formal shortcomings had not been rectified within the time allowed. 45. On 26 January 1996 the court held the next hearing. The court heard the expert J.G. and allowed him to prepare a supplementary opinion, as the petitioner H.K. had proposed to divide the property in a different way. The court adjourned the hearing until 19 March 1996. During that time the expert was to inspect the property and prepare an opinion about the possibility of the division of the property in the manner proposed by the petitioner. On 31 January 1996 the case-file was sent to the expert. 46. On 7 February 1996 the persons summoned to attend the session to be held before the Gdynia District Court failed to do so. The Gdynia District Court subsequently decided to return the request to the Tomaszów Mazowiecki District Court, having been unable to execute it fully. 47. On 26 February 1996 the expert J.S. submitted his opinion to the court. 48. On the same day the applicant filed with the court her reply to the petitioner’s motion for acquisitive prescription. She requested the court to dismiss the application. On 8 March 1996 the applicant submitted to the court her position regarding the expert’s supplementary opinion. 49. On 21 March 1996 the petitioner requested the court not to arrange any hearings between 8 and 22 May 996 since she had to take care of her sick mother. Thus, the hearing fixed for 20 May 1996 was rescheduled. On 11 April 1996 the petitioner H.K. submitted to the court her comments on the expert’s opinion. 50. On 12 April 1996 the next hearing was held. Having regard to the death of the applicant’s father W.S., the court stayed the proceedings under Article 174 § 1 (a) of the Code of Civil Procedure. On 23 May 1996 the applicant enquired of the court about the course of the proceedings. On 10 June 1996 the applicant provided the court with her father’s will, declaring her to be his only successor. 51. On 19 September 1996 the applicant requested the Court to resume the proceedings and to order the Gdańsk District Court to hear her. 52. On 23 September 1996 the court resumed the proceedings under Article 180 § 1 (1) of the Code of Civil Procedure. However, on 7 October 1996 the applicant informed the court that the proceedings to establish W.S.’s heirs were still pending before the Gdańsk District Court. In view of this, on 7 October 1996 the court again stayed the proceedings under Article 177 § 1 (1) CCP. 53. On 30 December 1996 the applicant requested the court to resume the proceedings in the instant case. She submitted a decision of the Gdańsk District Court in the inheritance case. She also requested the court to secure her claim since she was afraid that the party K.K. would sell his share in the property. On the same day the court ordered the applicant to produce the factual grounds for her request. On 30 December 1996 the court resumed the proceedings. The applicant complied with the court’s order on 15 January 1997 and on 3 February 1997 the court dismissed the applicant’s request to have her claim secured by way of an interlocutory decision. On 12 February 1997 the applicant appealed against that decision. On 21 February 1997 the applicant requested the court for leave to pay the court fee for the appeal in two instalments. The court regarded that as a request to be exempted from the court fee and ordered her to provide details regarding her financial situation. On 28 February 1997 the court received the information ordered and on the same day it exempted her from the fee. 54. On 11 March 1997 the court held the next hearing. The applicant was not present at that hearing, but submitted a medical certificate concerning her poor state of health, which made it impossible for her to participate in any further hearings. As the witnesses summoned were absent, the court adjourned the hearing until 29 April 1997. 55. On 17 March 1997 the case-file was transferred to the Piotrków Trybunalski Regional Court, following the applicant’s appeal of 12 February 1997. On 26 March 1997 the Piotrków Trybunalski Regional Court dismissed her appeal. On 3 April 1997 the case-file was received at the Tomaszów Mazowiecki District Court. 56. In a letter of 21 April 1997 the Gdynia District Court requested the Tomaszów Mazowiecki District Court to provide it with the current address of J.S. since he had moved. On 5 May 1997 the Tomaszów Mazowiecki District Court complied with that request. 57. In a letter of 24 April 1997 the expert J.G. informed the court that he was unable to attend the hearing to be held on 29 April 1997. 58. The court held the next hearing on 29 April 1997. The petitioner maintained her motion for acquisitive prescription, the party K.K. joined that motion and the court heard four witnesses and adjourned the hearing until 15 July 1997. 59. On 8 May 1997 the Gdynia District Court transmitted the request of the Tomaszów Mazowiecki District Court to hear J.S. to the Kwidzyń District Court, which was competent ratione loci. 60. In a letter of 28 May 1997 the applicant asked the court whether it was necessary for her to be present at the hearing on 15 July 1997. On 2 June 1997 the court replied that her presence was indeed necessary since it intended to question the parties to the proceedings. On 2 July 1997 the applicant applied to the Tomaszów Mazowiecki District Court to request the Gdańsk District Court to interview her, invoking her bad health. 61. On 15 July 1997 the Tomaszów Mazowiecki District Court held the next hearing. The court heard evidence from the expert J.G. As the Kwidzyń District Court had not interviewed J.S., the court decided not to give a preliminary ruling and adjourned the hearing until 9 September 1997. In the meantime the court was to ask the Kwidzyń Court about progress in carrying out the request to interview J.S. 62. On 24 July 1997 the applicant again requested the Tomaszów Mazowiecki District Court that she be questioned before the Gdansk Court. 63. On 9 September 1997 another hearing was held before the Tomaszów Mazowiecki District Court. The court decided to give a preliminary ruling in the near future, concerning the claim for acquisitive prescription. 64. On 15 September 1997 the Kwidzyń District Court held a session at which J.S. was present. However, in view of the absence of all the other parties to the proceedings, the court decided to adjourn the session until 29 September 1997 and on 19 September 1997 it informed the Tomaszów Mazowiecki District Court accordingly. Having regard thereto, the Tomaszów Mazowiecki District Court decided on 23 September 1997 to reopen the hearing and to adjourn it until 29 October 1997. 65. On 29 September 1997 J.S. failed to attend the session to be held before the Kwidzyn District Court. The court, accordingly, had to adjourn the hearing again until 16 October 1997. On 16 October 1997 the Kwidzyń District Court finally interviewed J.S. 66. The next hearing before the Tomaszów Mazowiecki District Court was held on 28 October 1997. The petitioner H.K. and the party K.K. upheld their motion for acquisitive prescription. The court decided to adjourn the hearing and to give a preliminary ruling on 7 November 1997. 67. On 7 November 1997 the court gave a preliminary ruling declaring that the petitioner H.K. and the party K.K. had acquired one-fifth of the property in question by way of acquisitive prescription. 68. On 27 November 1997 the applicant asked the court whether the proceedings had come to an end. On the same day the court informed the applicant about the ruling it had given on 7 November 1997. On 9 December 1997 the applicant requested the court to provide her with written reasons for that ruling and to restore the time-limit for lodging an appeal against it. On 11 December 1997 the court restored the time-limit and on 10 April 1998 the court received the applicant’s appeal against the preliminary ruling of 7 November 1997. 69. On 17 April 1998 the court ordered the applicant to provide it with a statement concerning her financial situation. The applicant provided the relevant information on 24 April 1998 and on 27 April 1998 the court exempted the applicant from the fee for her appeal. 70. On 13 May 1998 the case-file was received by the Piotrków Trybunalski Regional Court, which was to examine the applicant’s appeal against the preliminary ruling on the merits of the case. A hearing was held on 28 May 1998. On 4 June 1998 the Regional Court quashed the preliminary ruling given on 7 November 1997 by the Tomaszów Mazowiecki District Court and remitted this part of the case for re‑examination. On 7 July 1998 the case-file was served on the Tomaszów Mazowiecki District Court. 71. On 26 October 1998 the applicant informed the court that she would not be present at the hearing scheduled for 30 October 1998 owing to her bad health. On that day the court adjourned the hearing until 4 December 1998 as no party attended it. 72. On 25 November 1998 the applicant informed the court that she would not attend the hearing fixed for 4 December 1998 due to her ill health. 73. On 4 December 1998 the court held the next hearing. The court granted the petitioner and the party K.K. fourteen days within which to produce the building permit concerning the property. On 9 December 1998 the applicant requested the Court to provide her with a copy of that decision. 74. On 31 December 1998 the petitioner informed the Tomaszów Mazowiecki District Court that the building permit could probably be found in the Piotrków Trybunalski Division of the State Archives and requested the court to contact that institution in order to obtain it. On 19 January 1999 the Tomaszów Mazowiecki District Court requested the State Archives to provide it with the copy of the permit. On 25 January 1999 the State Archives informed the court that it did not have the copy of the document requested. 75. The next hearing was held before the Tomaszów Mazowiecki District Court on 9 February 1999. One of the parties informed the court that the building permit could probably be found in the bank, which had granted the loan for the construction of the house. The court decided to grant the party fourteen days to produce the permit. On 16 February 1999 the court requested the Gdańsk District Court to hear the applicant. On 1 March 1999 the Gdańsk District Court fixed the hearing for 27 April 1999. On 27 April 1999 the Gdańsk District Court interviewed the applicant as requested. 76. The next hearing before the Tomaszów Mazowiecki District Court was fixed for 3 August 1999. By a letter of 13 July 1999 the applicant informed the court that she would not be present at the hearing for health reasons. 77. At the hearing held on 3 August 1999 the Tomaszów Mazowiecki District Court decided to request the Gdańsk District Court to interview the applicant again since on 27 April 1999 she had been questioned as a witness and not as a party to the proceedings. The hearing was adjourned until 15 September 1999. On 4 August 1999 the Tomaszów Mazowiecki District Court requested the Gdańsk District Court to interview the applicant. 78. The next hearing before the Tomaszów Mazowiecki District Court was held on 15 September 1999. It was adjourned as the parties failed to attend. The court adjourned the hearing until 20 October 1999. 79. The Gdańsk District Court interviewed the applicant on 24 September 1999. 80. On 22 October 1999 the Tomaszów Mazowiecki District Court contacted the Piotrków Trybunalski and the Tomaszów Mazowiecki Divisions of the State Archives requesting them to provide a copy of the building permit. On 2 November 1999 the Tomaszów Mazowiecki Division provided the court with a copy of the building permit. 81. On 4 November 1999 the applicant informed the Tomaszów Mazowiecki District Court that she would not be able, for health reasons, to attend the hearing fixed for 19 November 1999. 82. On 19 November 1999 the court held the next hearing. In the absence of confirmation that counsel for one of the parties had been properly summoned by post the court adjourned the hearing until 10 December 1999. 83. In a letter of 7 December 1999 J.S. and his counsel informed the court that they joined the petition of H.K. and K.K. for acquisitive prescription and would not be present at the next hearing. 84. The next hearing was held on 8 December 1999. No party, except the participant K.K., was present and the court adjourned the hearing until 12 January 2000. 85. On 7 January 2000 the Tomaszów Mazowiecki District Court rescheduled the hearing from 12 to 24 January 2000 for organisational reasons concerning the court. 86. On 24 January 2000 the court held a hearing. The court heard the petitioner H.K. and the party K.K. The part of the hearing regarding the petition for acquisitive prescription was closed and the court decided to give a preliminary ruling on 4 February 2000. However, on 4 February 2000 the Court decided to postpone the ruling until 7 February 2000. 87. On 7 February 2000, following certain information provided by J.S., the Tomaszów Mazowiecki District Court reopened the hearing and adjourned it until 29 February 2000. The court also ordered the applicant to state her position regarding information provided by J.S. On 14 February 2000 the applicant submitted relevant pleadings. 88. At the hearing on 29 February 2000 the parties stated that the applicant’s pleadings of 14 February 2000 contained statements insulting to both living and dead members of their families and added nothing relevant to the case. The petitioner and K.K. maintained their application for acquisitive prescription. The court closed the part of the hearing relating to that claim and adjourned the giving of the preliminary ruling until 6 March 2000. On that day the court dismissed the motion for acquisitive prescription. On 9 March 2000 K. K. requested the court to give written grounds for that decision. 89. On 4 April 2000 the applicant filed with the court her pleadings relating to the written reasons for the decision of 6 March 2000. 90. The next hearing was held before the Tomaszów Mazowiecki District Court on 5 July 2000. The court adjourned the hearing until 3 August 2000. However, as the petitioner’s counsel was on holiday, the hearing was subsequently rescheduled for 12 September 2000. On 5 July 2000 the petitioner H.K. requested the court to secure her claim and on 8 August 2000 she supplemented her request with factual circumstances justifying it. On 13 July 2000 the applicant informed the court that she would not be able to participate in the hearing fixed for 12 September 2000, owing to ill health. 91. On 1 September 2000 the applicant applied to have her share of the property (two-thirds of one-fifth) entered in the land and mortgage register and to be paid off by H.K. and K.K. At the next hearing held on 12 September 2000 the petitioner withdrew her motion for securing the claim and maintained her application for physical division of the property. K.K. joined the latter motion. The court adjourned the hearing until 5 October 2000. 92. On 22 September 2000 the applicant informed the court that for health reasons she would not be able to participate in the hearing fixed for 5 October 2000. 93. During the hearing held on 5 October 2000 H.K. and K.K. informed the court about the possibility of a settlement in respect of movable parts of the property. The court adjourned the hearing until 9 November 2000 and ordered the applicant to adduce any evidence she possessed, since in her earlier pleading she had maintained that she had had some additional evidence at her disposal. The applicant replied on 25 October 2000. 94. The hearing fixed for 9 November 2000 was adjourned at the request of the petitioner’s counsel, invoking the petitioner’s ill health. On 27 December 2000 the Tomaszów Mazowiecki District Court fixed the next hearing for 8 January 2001. 95. On 4 January 2001 the applicant informed the court that she would not be able to participate in that hearing for reasons of ill health and advanced age. At the hearing held on 8 January 2001 the petitioner H.K. and the party informed the court about the friendly settlement regarding movable parts of the property, which had been concluded. Therefore the petitioner’s claim became limited to her application for physical division of the real estate. The parties accepted the proposal of the division prepared by the expert. The Tomaszów Mazowiecki District Court decided to appoint an expert in evaluation of real property. 96. Subsequently, the expert submitted her report and was questioned by the court on 2 July 2001. 97. On 4 January 2002 the Gdańsk District Court again interviewed the applicant, at the request of the Tomaszów Mazowiecki Court. 98. The next hearing was held on 18 December 2002. 99. The proceedings are pending. | [
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5. On 22 February 1989 the applicant filed a claim for damages with the Košice 1 District Court. He claimed compensation from a person whom a criminal court had previously convicted of the offence of wounding the applicant. 6. An expert appointed by the court submitted his opinion on 24 February 1990. On 22 March 1991 the applicant requested that a supplementary expert opinion be ordered. A second expert was appointed in 1991. On 7 February 1994 he returned the case file to the District Court with the explanation that the applicant had failed to attend an examination. On 21 June 1995 the expert was again requested to submit an opinion. The expert returned the case file to the District Court on 29 April 1997 without having elaborated an opinion. On 9 June 1997 the District Court imposed a procedural fine on the expert. 7. On 16 February 1998 the Constitutional Court found that the applicant’s constitutional right to a hearing without delays had been violated in the proceedings before the Košice 1 District Court. In its decision the Constitutional Court noted that the case was not complex and that the District Court had failed to ensure that the case be proceeded with without delays. 8. On 7 September 1998 the applicant extended his action. 9. On 25 September 1998 the Košice 1 District Court awarded damages to the applicant in accordance with his original action. It further dismissed the applicant’s request that the action be extended. 10. Both the applicant and the defendant appealed. 11. On 25 May 2000 the Košice Regional Court upheld the first instance judgment. | [
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9. The applicant was born in 1941. He is currently serving a prison sentence. 10. On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment. While in prison, on unspecified dates the applicant wrote a letter to the Penitentiary Division of the Katowice Regional Court and he received a reply. Dissatisfied with that reply, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about the judge who had replied to his letter. The relevant passages of the applicant's letter read:
“(...) It cannot be excluded that further acts of that kind on the part of the Penitentiary Division of the Regional Court would make me complain to the judicial supervision about the irresponsible clowns placed in that Division.
I will start by saying that any little cretin, whether he wears a gown or not, should vent his need to intimidate others by making allusions to legal responsibility [for their acts] on his mistress, if he has one, or on his dog, but not on me. I am not going to be afraid of any such clown who wants to intimidate me, but the truth is that my request of 18 August 1994 was addressed to the court, not to some fool.
I expect that the President of the Katowice Regional Court will somehow convey my request to that bully and that he will, at the same time, read his reply to me (...)
Not only does [the judge] write rubbish about my alleged request for a pardon, which my request was absolutely not, but he also intimidates me. If he is such a brilliant lawyer that he is able to reply to questions that were not asked – and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me. It would not change the fact that such a limited individual, such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter. A cretin he will remain and I see no reason to be afraid of any legal consequences. “You know, you understand, shut up” – that is all the education he has, as a fool does not need any better.” 11. Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence punishable under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of that court's Penitentiary Division and all judges of that court. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal, not professional, capacity. He maintained that the letter could only be regarded as an insult against a private person, but not a State institution. 12. On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority and sentenced him to eight months' imprisonment. The court found that on 15 November 1994 the applicant had sent a letter to the President of the Regional Court in which he referred to all judges of the Regional Court's Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“w sposób szczególnie obraźliwy”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters, which remained unanswered. 13. The court had regard to the results of the applicant's examination by psychiatrists who found that he could be held criminally responsible.
The court further took into consideration the questioning of the applicant during the investigations. He had denied that he had committed a criminal offence. He had stated that the charge against him did not correspond to the facts of the case as in his letter he referred to a particular person, not to the court as a whole, and that the phrases construed as insults concerned the judge in his personal capacity only. When later heard by the court, the applicant had stated that he had written this letter with a specific person in mind, namely a judge who had previously examined his various complaints. He maintained that he had not named that judge, because the letter from the Penitentiary Division in reply to his complaints, which had provoked him to write his impugned reply, had not been signed. The applicant had also stated that he was of the view that the opinions formulated in his letter were, in the circumstances of the case, correct. 14. The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter. The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, it had to be understood that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court.
The court further observed that the applicant, as a citizen, had a constitutional right to criticise the State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem.
The court further observed that the sentence was commensurate with the applicant's degree of guilt and with the seriousness of the offence. The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case, i.e. by Article 237 of the Criminal Code. 15. The applicant and his officially assigned lawyer lodged appeals against this judgment. 16. On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to step down, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court. 17. On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer.
The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant's guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant's lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court's other findings, this analysis was rejected. 18. The applicant's lawyer lodged a cassation appeal with the Supreme Court. 19. On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant's acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence. 20. The Supreme Court first noted that the grounds of the applicant's cassation appeal had been laconic and limited in their reasoning. Moreover, it clearly transpired therefrom that in fact the applicant's lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions. 21. However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including those concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint. 22. The Supreme Court went on to state that the applicant's abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in the second part of the letter the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court correctly had regard thereto. It had also indicated why it considered that the applicant's attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded. | [
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6. The applicant, Mrs Ayşenur Zarakolu was a Turkish national and lived in Istanbul. She was represented before the Court by Mr Özcan Kılıç, a lawyer practising in Istanbul. 7. On 25 April 2002 the Court was informed of Mrs Zarakolu’s death on 28 January 2002 and that Mr Ragıp Zarakolu, her widower, wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyer as his representative. 8. For practical reasons, Mrs Zarakolu will continue to be called “the applicant”, although Mr Zarakolu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI and see also Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3). 9. The applicant was the owner of a publishing company called “Belge International Publishing Co.”. 10. In June 1994 Belge International Publishing Co. published a book entitled Birakuji-Kürtlerin İç Savaşı, written by F.D. 11. In an indictment dated 5 July 1994 the public prosecutor at the Istanbul State Security Court charged the applicant with disseminating PKK propaganda through publishing this book. The Public Prosecutor requested that the applicant be convicted in accordance with Article 7 § 5 of the Prevention of Terrorism Act (Law No. 3713). 12. In the proceedings before the Istanbul State Security Court the applicant denied the charges. She stated that the book was based on true facts. She also referred to her rights under Article 10 of the Convention. 13. In a judgment dated 28 September 1995, the Istanbul State Security Court found the applicant guilty of the offence under Article 7 of the Prevention of Terrorism Act. The applicant was sentenced to five months’ imprisonment and the payment of a fine of TRL 41,666,666. 14. In concluding that the applicant had disseminated propaganda in support of a terrorist organisation, the court referred to the interview with Cemil Bayık, a commander of the PKK, published in pp. 243-250 of the book. The court quoted the following views of Cemil Bayık in its judgment:
“[T]he war in the south has shown that the power of the PKK was not as straightforward as had been estimated. It has also shown that it is not easy to eliminate the PKK. Everybody has been able to see for themselves that it is not possible to reach a solution in Kurdistan without the PKK. The PKK did not lose the war. In fact the reality is that it has emerged from this war with significant gains. The Turkish Republic, in an attempt to hide its defeat, has been disseminating propaganda based on lies, such as that the PKK has been defeated, that it has lost thousands of its men and that it will not recover. In the press, it has also been reported that the PKK has not been crushed and that it has emerged from this war ever more powerful. It has further been reported in the press that by disseminating such propaganda, they [the State] are deceiving themselves but that they need such propaganda to maintain high spirits”. 15. On 12 October 1995 the applicant appealed alleging, inter alia, that Article 7 § 5 of the Prevention of Terrorism Act was inapplicable in her case and that the court had convicted her solely on the basis of an interview contained in pp. 243-250 of the book. She referred to her rights under Article 10 of the Convention. 16. In a decision of 26 December 1995, the 9th Chamber of the Court of Cassation, upholding the cogency of the Istanbul State Security Court’s assessment of the evidence and its reasoning in rejecting the applicant’s defence, dismissed the appeal. 17. On 6 February 1996 the applicant was notified about her prison sentence and the fine. 18. On 29 August 1996 the applicant began serving her prison sentence at Bayrampaşa Prison in Istanbul. | [
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5. The applicant was born in 1919 and lives in Bogoria, Poland. 6. On 5 July 1974 the applicant’s husband filed with the Staszów District Court (sąd rejonowy) an action in which he sought a declaration that he and other relatives inherited the property of his late father. 7. On 30 November 1977 the court issued the relevant decision. Some of the participants in the proceedings lodged an appeal against it. 8. On 14 April 1978 the Tarnobrzeg Regional Court (sąd wojewódzki) amended that decision in part and dismissed the remainder of the appeal. 9. On 21 December 1981 the applicant filed with the Staszów District Court a petition in which she requested the division of the inherited property. 10. On 27 August 1992 the court issued a partial decision. The applicant appealed it. 11. On 24 June 1993 the Tarnobrzeg Regional Court quashed that decision and remitted the case for re-examination. 12. On 15 June 1994 the applicant challenged participation in the proceedings of all the judges from the Staszów District Court. 13. On 7 October 1994 the Regional Court dismissed that challenge. She appealed against that decision. 14. On 14 November 1994 the President of the Regional Court, in reply to the applicant’s complaint about the excessive length of the proceedings, wrote a letter informing her that the case was very complex and that she contributed to the delay by her numerous petitions. 15. On 24 February 1995 the Rzeszów Court of Appeal (sąd apelacyjny) amended the Regional Court’s decision of 7 October 1994 in that it excluded four judges from participation in the proceedings. 16. On 29 May 1995 the District Court held a hearing. It stayed the proceedings, because three participants had died. The court ordered the applicant to provide information concerning their legal successors. 17. On 11 December 1995 the court refused the applicant’s request to have the proceedings resumed. It noted that she had failed to provide the addresses of the heirs of one of the participants in the proceedings and submitted only that they lived in the United States. 18. On 12 July 1996 the District Court refused the applicant’s subsequent request in this respect. It relied, inter alia, on the fact that she had failed to specify whether the persons concerned had Polish or American nationality, which made it impossible for the court to serve summonses on them. The applicant appealed that decision. 19. On 7 November 1996 the Regional Court quashed the appealed decision and ordered its re-examination by the District Court. 20. On 7 April 1998 the District Court resumed the proceedings. On the same date it decided to appoint a guardian ad litem for absent participants in the proceedings and announce that fact in a newspaper. 21. On 22 September 1998 the President of the District Court informed the applicant that the newspaper which the court had requested to publish the announcement had not replied. The President resolved to undertake necessary steps in order to ensure a more expeditious examination of the case. 22. On 22 June 1999 the Regional Court excluded a judge from participation in the proceedings and transferred the case to the Opatów District Court. 23. On 29 September 1999 four judges from the latter court requested to be excluded from participation in the proceedings due to their personal relations with one of the participants. 24. On 28 July 2000 the applicant was ordered to submit certain pleadings and provide information about the nationality of the participants residing in the United States. In reply, she submitted that she did not know whether they had a Polish nationality. 25. In August 2000 the District Court summoned the applicant to make an advance payment to cover the costs of translating letters rogatory and sending them to the United States. In reply, the applicant stated that the participants residing there spoke fluent Polish and thus translation was not necessary. 26. On 28 September 2000 the court stayed the proceedings, relying on the applicant’s failure to comply with its order. 27. On 26 February 2001 the applicant requested that the proceedings be resumed and submitted a letter from the Polish consulate in Chicago, from which it transpired that the persons concerned had not renounced their Polish nationality. 28. On 16 March 2001 the court refused that request. The applicant appealed. 29. On 17 July 2001 the Rzeszów Regional Court transferred the appeal against that decision to the Kielce Regional Court. 30. On 24 October 2001 the latter court rejected the appeal. 31. On 25 January 2002 the Opatów District Court once again refused to resume the proceedings. 32. On 8 February 2002 the applicant appealed against that decision. 33. The proceedings are still pending. | [
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14. The applicant is a former public prosecutor who now works as a lawyer. He was born in 1947 and lives in Timişoara. 15. During the night of 20 to 21 April 1994 the applicant was involved in an altercation with D.N., who was seriously wounded. According to the report of the medical examination carried out after the incident in question, D.N. sustained several fractures on this occasion, requiring 250 days of medical care. Without appropriate medical treatment, these injuries could have proved life-threatening. 16. By a resolution of 7 June 1994 public prosecutor D. from the prosecution service at the Bihor County Court decided to open a criminal investigation with regard to the applicant. 17. On 7, 14, 16, 23 and 30 June and 5 July 1994 D.N. (the victim) and twenty-one witnesses were interviewed by the prosecution service in connection with the incident. 18. On 23 June 1994 the applicant was questioned by public prosecutor D. on the subject of his altercation with D.N. During this interview the applicant was not assisted by a lawyer. 19. By an order of 5 July 1994 public prosecutor D. instituted criminal proceedings against the applicant and decided that he should be placed in pre-trial detention. He issued a committal warrant against the applicant for a period of thirty days from the date of his arrest by the police. Relying on Article 148, sub-paragraphs (c), (e) and (h), of the Code of Criminal Procedure (“the CCP”), the prosecutor mentioned in his order that the applicant was wanted by the police, whom he was wilfully evading, and that his continued liberty represented a threat to public order. 20. On 13 July 1994, on an application by public prosecutor D., the applicant was committed for trial before the Bihor County Court for attempted homicide, an offence prohibited under the second paragraph of Article 174 of the Criminal Code. The prosecutor stated in his application that he had ordered the applicant’s arrest on the ground that the latter had evaded the criminal proceedings brought against him. The prosecutor pointed out that the applicant had failed to appear for the reconstruction of the events of the night of 20 to 21 April 1994 and had also failed to appear before the prosecution service, which had summoned him to provide a further statement. 21. On 20 July 1994 the applicant was arrested and detained in Oradea Prison. 22. In the medical record established at the time of his imprisonment, the doctor noted that the applicant weighed 99 kg and was suffering from a duodenal ulcer, cholelithiasis and paranoid personality disorder. 23. On 21 July 1994, pursuant to Article 152 of the CCP, the applicant, assisted by a lawyer of his choice, was brought before Judge M.V., Section President at the Bihor County Court. At a private hearing the judge informed the applicant that the prosecution service had decided that he should be committed for trial, and read him the prosecution’s submissions word for word. On this occasion, when questioned about a statement he had made to the prosecution service, the applicant complained that the prosecutor had not allowed him to write the statement himself, arguing that it was late and that he did not have time. The applicant also complained that he had been “terrorised” by the prosecutor, who had made him wait for two days in the corridor of the prosecution service, threatening not to record his statement and to have him arrested. Finally, he stressed that he had responded to the prosecution service’s summonses and had not evaded criminal proceedings. It does not appear from the verbatim record of the hearing that the issue of the lawfulness of the applicant’s detention was discussed or that Judge M.V. considered it on 21 July 1994. 24. On 5 September 1994 the applicant appeared for the first time before the Bihor County Court, sitting with two judges. In the presence of public prosecutor K.L. and two lawyers of his choice, the applicant asked that the charges brought against him be amended to assault causing grievous bodily harm and pleaded self-defence. It does not appear from the verbatim record of the hearing that the issue of the lawfulness of the applicant’s detention was discussed or that the bench considered it on 5 September 1994. 25. Other hearings were held before the Bihor County Court on 3 and 17 October and 14 November 1994, at which the court, sitting in the same composition and in the presence of the same public prosecutor K.L., the applicant and his lawyers, heard evidence from fifteen or so witnesses. It does not appear from the verbatim records of the hearings of 3 and 17 October and 14 November 1994 that the issue of the lawfulness of the applicant’s detention was examined. 26. The court delivered its judgment on 28 November 1994. It stated that the investigation carried out by the prosecution service had been incomplete and sent the file to the Bihor County Prosecution Service for additional investigative measures. In addition, the court decided to prolong the applicant’s pre-trial detention, considering that, given the gravity of the offence, there was a risk that he would commit other crimes. 27. On 9 December 1994 the applicant appealed against this judgment. He alleged a lack of impartiality on the part of public prosecutor D., who, since the beginning of the investigation, had deprived him of his fundamental defence rights and had violated the presumption of innocence by describing him as a “habitual offender” although he had never previously been convicted. The applicant also expressed his fear that, were his pre-trial detention to continue, he was likely to be the target of further misuse of authority by public prosecutor D. and be subjected to ill-treatment by prisoners. Further alleging the unlawfulness of his detention, he requested his release and an urgent examination of his appeal. With regard to substantive issues, he also requested that the charge against him be amended to assault causing grievous bodily harm and that he be acquitted. 28. On 16 February 1995, at a public hearing before the Oradea Court of Appeal attended by an officially appointed lawyer representing the applicant, the prosecution service requested an adjournment in order to be able to summon the applicant. This request was allowed by the Court of Appeal, which set the date of the next hearing for 6 April 1995. 29. On that date, the Oradea Court of Appeal raised of its own motion and submitted to the parties for comment the issue of the lawfulness of the steps taken in the criminal proceedings against the applicant, including the prosecutor’s application, having regard to the fact that he had not been assisted by a lawyer while being interviewed by the prosecution service and that he had not been given notice of the official record of the end of the investigation. By a final judgment delivered on the same date the Court of Appeal allowed the applicant’s appeal and quashed the part of the judgment of 28 November 1994 concerning his continued pre-trial detention for the following reasons.
(i) It ruled that the applicant’s arrest on 20 July 1994 had been unlawful. In this connection, it stressed that the applicant had not evaded criminal proceedings but had complied with every summons from the prosecution service, and that the prosecutor had in fact left him to wait in vain in the corridor.
(ii) It further considered that the applicant’s detention after 19 August 1994 had been unlawful. In this regard, it noted that an arrest warrant had been issued against the applicant on 5 July 1994, to run for a period of thirty days from the date of his arrest, and that he had been apprehended on 20 July 1994. The court noted that this period had expired on 19 August 1994 and that the measure to maintain the applicant in pre-trial detention had not subsequently been prolonged in accordance with a procedure prescribed by law.
(iii) It also noted that the applicant’s right to be assisted by a lawyer had been violated by the prosecutor responsible for the investigation and that the prosecution service had failed to draw up an official record of the end of the investigation, in violation of Article 171 of the CCP.
Accordingly the Court of Appeal ordered the applicant’s release and quashed all the procedural steps taken by the prosecution service, including its application, and returned the case file to the prosecution service for resumption of the investigation. 30. On 7 April 1995 the applicant was released.
... 38. By an application of 16 April 1997 the applicant was committed for trial before the Beiuş Court of First Instance on a charge of assault causing grievous bodily harm, an offence prohibited under the first paragraph of Article 182 of the Criminal Code. The prosecution service granted the applicant the extenuating circumstance provided for in Article 73, sub-paragraph (b), of the Criminal Code, namely that the offence had been committed under the influence of the strong emotion which he would have experienced when the victim threw a brick towards him.
... 43. By a decision of 12 December 1997 the Supreme Court of Justice allowed the applicant’s request and referred the case to the Craiova Court of First Instance.
... 55. By a judgment of 12 May 1999 the court sentenced the applicant to 262 days’ imprisonment for serious violence committed under the influence of emotion, an offence punishable under the first paragraph of Article 181 of the Criminal Code. 61. By a decision of 13 March 2000 the Dolj County Court upheld the judgment delivered by the Craiova Court of First Instance on 12 May 1999 (see paragraph 55 above).
... 66. By a judgment of 13 September 2000 the Craiova Court of Appeal allowed the applicant’s appeal and quashed in its entirety the judgment of 12 March 1999 of the Craiova Court of First Instance, together with the Dolj County Court’s decision of 13 March 2000. The Court of Appeal found that, bearing in mind the prosecution’s application and the evidence in the file, the lower courts had convicted the applicant without establishing a causal link between the applicant’s actions in respect of the victim and the latter’s injuries. Accordingly, it sent the case back to the Craiova Court of First Instance for a fresh examination of the merits.
... 72. According to the information available to the Court, the case is still pending before the Craiova Court of First Instance. The Court has no further information regarding any procedural steps taken since 17 May 2001.
... 142. On 18 November 1999 the applicant instituted civil proceedings against the State, represented by the Directorate-General of Public Finances, in the Timiş County Court. Relying on Articles 504 and 505 of the CCP, taken together and as interpreted by a decision of the Constitutional Court dated 10 March 1998, and on Article 5 §§ 1 to 5 of the Convention, he requested 2,000,000,000 Romanian lei as compensation for his pre-trial detention from 5 July 1994 to 6 April 1995, which had been ruled improper and unlawful by the final decision of 6 April 1995 (see paragraph 29 above). In particular, he asserted that during the period in issue he had experienced assaults resulting in multiple cranial and costal fractures. 143. By a judgment of 7 July 2000 the court dismissed the applicant’s action on the ground that it was premature, in that the proceedings brought against him were still pending before the national courts. 144. By a decision of 23 November 2000 the Timişoara Court of Appeal allowed the applicant’s appeal and, quashing the judgment of 7 July 2000, sent the case back to the same court for a new judgment. The Court of Appeal held that the damages claimed by the applicant were related to his detention, which had been ruled unlawful, and that consequently the fact that the criminal proceedings against the applicant were still pending was irrelevant to the case in issue. The Court of Appeal concluded that the first-instance court had been wrong to dismiss the applicant’s action on the ground that it was premature. 145. On a date which has not been specified proceedings resumed before the Timiş County Court. At the hearing on 30 March 2001 the State asked the court to dismiss the applicant’s action since the limitation period had expired. It noted that, under the second paragraph of Article 504 of the CCP, an action for damages could be brought within one year of the date on which the final decision to acquit or discontinue proceedings was delivered. Further, it considered that in the present case this period had begun on 26 November 1996, the date on which the Oradea Court of Appeal’s decision of 6 April 1995, finding that the applicant’s pre-trial detention had been unlawful, had become final. It submitted that the applicant had brought his action on 18 November 1999, almost three years after the date of the decision in his favour.
The applicant raised an objection alleging the unconstitutionality of the second paragraphs of Articles 504 and 505 of the CCP and asked that the case be referred to the Constitutional Court. 146. By an interlocutory decision of 27 April 2001 the court referred the case to the Constitutional Court for a decision on the objection raised by the applicant. 147. On 20 September 2001 the Constitutional Court allowed the limb of the objection concerning the second paragraph of Article 504 of the CCP, ruling that this provision was unconstitutional in so far as it limited the cases in which the State’s liability for miscarriages of justice in criminal proceedings could be engaged.
However, the Constitutional Court dismissed the plea of unconstitutionality with regard to the second paragraph of Article 505 of the CCP as follows:
“Neither the constitutional rules in force nor the international treaties to which Romania is a party guarantee that there is to be no limitation on the right of persons who have been wronged by unlawful detention to bring an action for the damage they have sustained, nor do these rules or treaties guarantee a prescribed time-limit within which this right may be exercised. ... The time-limit of one year provided for in the second paragraph of Article 505 of the Code of Criminal Procedure is a reasonable period of limitation on the right to bring proceedings and guarantees the injured party the best possible conditions for bringing an action to obtain full reparation.” 148. By a judgment of 18 January 2002 the Timiş County Court dismissed the applicant’s action on the ground of limitation. It held that in the present case the limitation period of one year provided for in the second paragraph of Article 505 of the CCP had begun on 26 November 1996, the date on which the Oradea Court of Appeal’s decision finding that the applicant’s pre-trial detention had been unlawful had become final. The applicant’s action having been brought on 18 November 1999, the court held that it was out of time. 149. Although this judgment could have been appealed, the applicant did not use this remedy since he considered that, given the contradictory decisions of the national courts, he had no prospect of success. Accordingly, the judgment of 18 January 2002 became final and could no longer be challenged by ordinary appeal. | [
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5. On 2 January 1995 the applicant filed an action for rehabilitation with the Bratislava City Court. He alleged that he had been persecuted for political reasons between 1972 and 1973 and claimed compensation. On 6 February 1995 the City Court decided to transfer the case to the Bratislava I District Court for reasons of jurisdiction. 6. On 11 March 1996 the District Court discontinued the proceedings on the ground that the applicant had failed to substantiate his action. On 26 June 1996 the Bratislava City Court quashed the District Court’s decision of 11 March 1996. 7. On 19 May 1997 the District Court dismissed the applicant’s request for waiver of court fees. On 28 August 1997 the Bratislava Regional Court upheld this decision. Between 24 September 1996 and 30 October 1998 the Bratislava I District Court took several procedural steps. 8. The first hearing was scheduled for 25 March 1999. The case was adjourned as the applicant could not attend. On 20 May 1999 the case had to be adjourned again as the applicant’s summons had been sent to a wrong address. 9. On 2 September 1999 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s constitutional right to have his case examined without undue delays. In its finding the Constitutional Court noted, in particular, that the Bratislava I District Court had failed to proceed with the case in an appropriate manner. | [
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8. The applicants were born in 1948 and 1945 respectively. They are a married couple. They live in Stryn, Norway. 9. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. 10. In 1986 the applicants bought at the price of NOK 1 a property at Stryn in Western Norway. On the land was a large wooden house built in 1886, which had previously served as a hotel and school. In the mid-1980s the municipal authorities wished to destroy the building, which by then had been unoccupied for two decades. The applicants' initial plan was to renovate the building and then to sell it, but later they used the building as a hotel in the summer and rented it out to schoolchildren during the winter. 11. The renovation costs were initially estimated at NOK 3.5 million, of which approximately NOK 2.8 million was to be financed by mortgages. At the time it was difficult to obtain loans, but in the end the applicants were able to borrow from the Sandane Branch of the Bergen Bank, NOK 2.3 million, secured on the applicants' property in Stryn (gnr 45, bnr 108), and NOK 0.5 million, secured on their property (gnr 113, bnr 91 and 92) in Vågsøy. The Bergen Bank subsequently merged with Den norske Creditbank and became Den norske Bank (DNB) (hereinafter referred to as “the Bank”). Eventually the renovation, which was completed in 1988, became more extensive and expensive than expected, in part because of difficulties related to the installation of a fire prevention system. At an unspecified time in 1989 or 1990, the applicants stopped paying the mortgages and the interest on them, resulting in an overdraft of NOK 4 million. In addition, they apparently owed NOK 1.6 million to the State Fund for Development of Districts (Distriktenes Utbyggingsfond – hereinafter “the DUF”). 12. As the Bank considered that the applicants had failed to honour their obligations, it sought to have the applicants' property in Stryn and Vågsøy sold at an auction in order to recover its loans. In 1991 the Bank instituted proceedings for this purpose. On 31 March 1992 the proceedings concerning the property in Stryn were discontinued. In the meantime, on 8 January 1992 the Bank had obtained a decision by the Nordfjord Court of Execution and Enforcement (namsrett), the local district court, confirming an auction bid but that decision was later quashed by Gulating High Court (lagmannsrett) on 17 November 1993. 13. On 5 June 1992 the Bank again brought proceedings to have the Stryn property sold at auction, and on 16 June 1992 the Nordfjord Court of Execution and Enforcement granted the request. 14. In a complaint filed with the District Court on 19 May 1992 the applicants requested inter alia that Mr Justice Steintveit should stand down on account of his past employment with the Bergen Bank. 15. On 25 May 1992 Mr Justice Steintveit confirmed that he had been, for a period from July 1984 to January 1987, an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. He had not deemed it necessary to inform the parties about this as he did not consider that it had any importance for his eligibility to sit in the case. 16. On 3 June 1992 the applicants submitted a complaint to the Nordfjord Court of Execution and Enforcement, asking Mr Justice Steintveit to stand down under Sections 108 and 109 of the Administration of Courts Act 1915 (Domstolloven) on the grounds that he had had close ties with the defendant Bank. On 12 June 1992 the complaint was returned to the applicants with an explanation that, at the time, no execution proceedings were pending before the court. On 2 September 1992 Mr Justice Steintveit informed the applicants that he could not see that his past employment relationship with the Bank was a reason for him to withdraw from the case. 17. On 3 November 1992 the Court of Execution and Enforcement granted a request by the applicants to have the auction proceedings suspended, pending a first instance decision in the proceedings mentioned under Section B below. 18. In April 1992 the applicants brought an action against the Bank, claiming compensation for breach of contract. According to the applicants, the Bank had undertaken to discharge their mortgage debts secured on the properties at Vågsøy which would have enabled them to earn money from their property during the years 1990 to 1992. The Bank brought a counter-action. At the opening of the oral hearing in January 1994, Mr Justice Steintveit asked the parties whether there were any objections to the District Court's composition. No objection was made. On 22 April 1994 the Nordfjord District Court (herredsrett), composed of Mr Justice Steintveit and two lay judges, unanimously found for the Bank, declaring that its mortgage securities were valid. The District Court noted that the Bank had agreed on 3 December 1990 to cancel the NOK 2.6 million mortgage security with respect to the property in Stryn. It further observed that on 28 November 1989 the DUF had requested the cancellation of the NOK 500,000 security with respect to the properties at Vågsøy but had withdrawn its request on 23 May 1991. In connection with the said request, the District Court referred to a letter of 22 April 1991 from the Bank manager to the DUF. The letter read:
“The question of to what extent the Bank has an obligation to remove the lien [on the Vågsøy property] has been considered at several levels within the Bank, including our legal department. We have also obtained a statement from an external Supreme Court Advocate who has been engaged by [the applicants]. No one has found any reason why the Bank should be required to follow the demands of the DUF.”
In its judgment the District Court criticised the Bank for having expressed itself in the way it did, affirming that there was insufficient basis in the contacts between the Bank and the applicants' lawyer at the time to draw such a conclusion. Despite this, the District Court found on the evidence before it that the mortgage securities remained valid.
Before the European Court the applicants have submitted that the letter of 22 April 1991 was kept secret from them “for over one year until 12 May 1992” (see at p. 9 of the 'Summary' attached to their observations of 19 October 2000), and also that they “did not discover the proof until they subpoenaed and received the documents during May 1997” (observations of 31 May 2002).
On appeal by the applicants, the judgment of the District Court was unanimously upheld by the High Court on 4 October 1995. On 7 May 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicants leave to appeal. It does not appear that the applicants challenged the proceedings before the District Court on account of Mr Justice Steintveit's participation. 19. On 25 January 1995 the Court of Execution and Enforcement decided to resume the auction proceedings relating to the applicants' property in Stryn which, as mentioned under Section A above, had been suspended on 3 November 1992. This decision was upheld by the High Court on 16 May 1995 and, on 7 July 1995, the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal. 20. On 15 November 1995 the property in Stryn was sold at an auction. The applicants made the highest bid, between NOK 1.6 and 1.7 million, but since they were not able to offer security in time, the property went to the next highest bidder, the Bank, for approximately NOK 1.5 million, which was later confirmed on 8 March 1996 as stated below. The auction was followed by two sets of proceedings, one concerning Mr Justice Steintveit's refusal to withdraw, the other concerning the Bank's auction bid. 21. On 20 December 1995, in connection with proceedings relating to the confirmation of the Bank's auction bid, Mr Justice Steintveit of the Nordfjord Court of Execution and Enforcement decided to reject a further request made by the applicants that he withdraw from the proceedings. In his decision the judge stated that, from July 1984 to December 1986, he had been an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. During this period he had not been involved with the applicants' loan agreement and both the agreement and the persons concerned had been unknown to him. Nor had he had any dealings with the former director of the local branch in Nordfjordeid who had pursued the case against the applicants. After ceasing to work with the Bank, the judge had maintained an ordinary customer relationship with it but had, beyond that, entertained no special links. On entering office as a judge in January 1987 he had, as a matter of caution, imposed on himself a rule not to deal with cases to which the Bank was a party for the next three years. The applicants' case was brought before the Court of Execution and Enforcement after the expiry of the three-year period. It had never been his opinion that his previous employment relationship with the Bank was a circumstance capable of calling into doubt his impartiality. Until the applicants' complaint of 12 December 1995, he had thought that they were of the same view. He saw no grounds for arriving at a different conclusion as regards his ability to sit. 22. The applicants appealed against this decision to the High Court, which upheld it on 29 March 1996. 23. The applicants subsequently sought to appeal against the High Court's decision but, on 3 June 1996, the Supreme Court's Appeals Selection Committee quashed the decision and gave a new decision to the effect that the appeal from the first instance court was to be dismissed by the High Court. It observed that, following the 8 March 1996 decision mentioned below, the procedure and the merits of that decision ought to have been challenged in the same appeal. 24. On 8 March 1996, the Nordfjord Court of Execution and Enforcement, sitting with a single assistant judge, confirmed the sale to the Bank of the property in Stryn. 25. The applicants appealed to the High Court, which, after holding a hearing on 11 August 1997, upheld the decision by a judgment dated 2 September 1997. The High Court further rejected the applicants' contention that the first instance judge had been disqualified. 26. On 20 March 1998 the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal. 27. In November 1995 the Bank made a fresh application to the Court of Execution and Enforcement for the compulsory sale of the applicants' property in Vågsøy. The applicants objected and again challenged the first instance judge's eligibility to adjudicate their case and requested him to withdraw.
By decision of 25 June 1996, the judge rejected their request and granted the Bank's application. The judgment included the following reasons:
“The plaintiff has sent notice that a claim for enforcement will be made if the claim is not complied with. The said notice is in accordance with the requirements laid down in section 4-18 of the Enforcement Act (tvangsfullbyrdelsesloven). The application has been lawfully served on the defendants.
As explained above, the defendants have had objections to the application for forced sale. The court finds it appropriate to deal firstly with the objection concerning ability to sit.
The said objection is linked to the circumstance that the undersigned judge has been employed by [the Bank].
The employment relationship that has been invoked concerns the fact that the undersigned was employed as a lawyer in the Legal Department of [the Bank], Oslo, for a period from July 1984 to December 1986. During this period I had nothing to do with the loan commitment to Møyfrid and Michael Walston. I had no knowledge of either the matter or the persons until the case was submitted to me in my capacity as judge. Nor did I, as an employee of the Oslo office, have anything to do with the persons in the Bank who processed the loan commitment to Walston. Since my resignation I have maintained my relationship as a client of [the Bank], ...but have otherwise had no special connection with the Bank or its employees.
Several disputes between the parties deriving from the loan commitment have been brought before the courts. The underlying dispute was heard by the undersigned judge on 22 April 1994, and a final and enforceable decision for the Bank was taken by the High Court in its judgment of 4 October 1995.
The Walstons omitted to call the undersigned's impartiality into question during the district court's hearing of the main case, even though they had been explicitly informed of the employment relationship as early as during the preparatory proceedings in 1992. However, their objection was put forward in a written plea dated 12 December 1995 by their counsel, Mr Fjeld, during the hearing of other enforcement proceedings between the same parties, cf. case no. 95-00301 C. On that occasion, the objection was not upheld by the district court, and after a further interlocutory appeal, the Appeals Selection Committee of the Supreme Court decided on 3 June 1996 that the question of disqualification could not be the subject of an interlocutory appeal because it could serve as a ground of appeal in the event of an appeal proper against the affirmation order.
Since, on the previous occasion, the defendants raised the point that the undersigned withdrew from other cases involving [the Bank], I wish to mention briefly that on entering office as a judge in January 1987 I chose to impose a precautionary rule upon myself. This consisted in my refraining, for a period of three years, from hearing cases in which [the Bank] was a party. I chose to take the date on which the case came to court as the starting point for the three-year period, and the application of this rule led to my finding it appropriate to withdraw from a few cases. The case between Møyfrid and Michael Walston and the Bank came to court after the expiry of the self-imposed three-year limit.
On the basis of the above, I the undersigned would conclude that my former employment relationship with [the Bank] cannot be regarded as a special circumstance which might serve to weaken confidence in my impartiality. Until their counsel's, Mr Fjeld's, written plea of 12 December 1995 in case no. 95-00301C, it was my understanding that Møyfrid and Michael Walston also took the same view.
Accordingly, the request that the undersigned judge disqualify himself from the case is rejected.
As regards the objection concerning the ground for enforcement, the court refers to the judgment of 22 April 1994 of the Nordfjord District Court. Point 2 of the conclusion of the judgment on the counter-claim reads as follows:
'2. The mortgage bond from Møyfrid and Michael Walston, in the amount of NOK 500,000, judicially registered on 10 July 1986 and secured on the property gnr. 113, bnr. 91 and 92 in Vågsøy, is binding on Møyfrid and Michael Walston and may be used as a ground for enforcing recovery of the debt they owe to Den norske Bank AS.'
The judgment is now a final and enforceable decision since the High Court has upheld it and the Appeals Selection Committee of the Supreme Court has refused leave to appeal on 7 May 1996 ....
Accordingly, the court finds that the objections raised by Møyfrid and Michael Walston concerning the ground for enforcement have been the subject of a final and enforceable decision and that the ground for enforcement may thus serve as the basis of the application for forced sale. As regards the objections indicated by the defendants regarding the ground for enforcement independently of the outcome in the Supreme Court, the said objections have not been specified and consequently the court has no cause to deal with them.
The court finds that the conditions for forced sale are fulfilled and grants the application. ...
C o n c l u s i o n: 28. On 21 July 1996 the applicants appealed against this decision to the High Court, stating inter alia:
“The appeal is firstly limited to point 1 of the conclusion- the issue of the disqualification of the judge of the Court of Execution and Enforcement (District Court judge). However, were the appellants to succeed on this point, this will necessarily result in the last three items in the conclusion also being quashed, since the case will thus have been dealt with by a disqualified judge.
The appeal is grounded on a misapplication of law.
Since it is a holiday period and the office is almost completely closed, and because the undersigned counsel will be absent from the office in July for work-related reasons, the appeal submitted within the time-limit of 24 July will have to be brief. A supplementary written plea will be prepared, and I take the liberty of requesting that the time-limit for submitting such a plea be set for the end of the court vacation, 15 August 1996.” 29. In the proceedings the High Court received from the applicants' lawyer extensive observations dated 23 August and 5 September 1996, and from the Bank's lawyer observations dated 10 September 1996. The latter led the applicants' lawyer to submit further comments on 23 September 1996, developing further arguments on the issue of disqualification, including on the District Court judge's awareness of the applicants' objection to his participation. It further contained the following observations:
“The legal system does not differentiate between more and less 'serious' cases. Neither on the basis of the amount or the type of case can one say that a judge who is on the 'borderline' as regards qualification should be 'passable' in certain minor cases, but not in major ones.
In this litigation, too, there are various serious questions that may be brought up for consideration. And in any circumstance it is the judge of the Court of Execution and Enforcement who ultimately determines whether a given offer is to be confirmed or not.
As regards the property in Vågsøy, it remains to be resolved whether the mortgage bond concerned is of a subsidiary nature, i.e. whether it is 'only' security for any uncovered debts from the hotel operations in Stryn. In that event, it is necessary to ascertain how much [the Bank] will recover in Stryn – in one way or another – before ascertaining whether there is any residual amount to be covered by selling the property in Måløy.
And before that stage is reached, various preliminary assessments and decisions may have to be made in which the judge's qualification is not a question of secondary importance.
In the second paragraph on page 1 of the reply [of 10 September 1996], it is stated that 'the appellants have a debt to [the Bank] of over NOK 6,000,000' – in other words, over six million kroner!!
I admit that I am new to this litigation and may not have a full overview of absolutely every detail. But amounts of this nature almost knock me flat since they in no way whatsoever resemble the amounts that I have so far been able to note in this litigation.
That is why the adversary party is now being pressed upon to give an account of and to substantiate the manner in which it has computed this claim. Then there is the question whether the adversary party contends that this entire amount has been secured by the mortgage bond, or merely parts of it.
The significance of this question is enormous. When, at some point in the future, the Gulating High Court in all likelihood sets aside the confirmation of the give-away price for the hotel in Stryn (pursuant to the previous Enforcement Act), it will be relevant to realise assets in a business-like manner in order to settle accounts with [the Bank].
Whether or not a general settlement is possible will naturally depend on such questions as
a. what is the debt to the [Bank] in Stryn that is secured by a mortgage bond?
b. what is the amount of the total claim against the Walston family ?
c. can a forced sale be effected at all in the Vågsøy municipality until a further financial settlement has been reached in Stryn ?; cf. evidence: 1. Letter of 14 July 1986 from [the Bank] to the Walstons, affirming that the bond in the present case is merely in the nature of 'formal collateral'; regardless of how many subsequent judgments have been pronounced to the effect that the Walstons are not entitled to have the said bond discharged under the prevailing circumstances.
In considering these questions – and several others that may arise during the further hearing of the case – it is naturally not of secondary importance who the judge is.” 30. On 9 October 1996 the Bank's lawyer filed additional observations, which were not communicated to either the applicants or their lawyer, until they were notified of the High Court's decision of 3 December 1996 mentioned below. The 9 October 1996 document read:
“I refer to the written plea of 23 September 1996 from the appellants. The plea gives rise to a need for some clarification, but most of the content has been commented on previously.
On page 2 the appellants contend that the major grounds given for the decisions in this and another case contain direct errors that have allegedly been revealed. It is not correct, however, that Mr Justice Steintveit has given any inaccurate information in this case.
The District Court Judge has been aware of the objections that have been raised since 1992, but he was not aware that specific objections relating to disqualification had been raised in those cases where it is so contended. Here I refer to page 4, penultimate paragraph, of the plea, from which it appears that their counsel, Mr Howlid, did not raise during the main hearing any objections relating to disqualification, despite the fact that the Walstons allegedly instructed him to do so.
It is completely incomprehensible to me that the Walstons now claim that their counsel, Mr Howlid, acted contrary to his instructions in the District Court when they themselves were present when it happened and did not protest in any way.
As regards consideration of the disqualification issue in the High Court, I abide by what I have said previously about the matter. The High Court was not requested, either in the written plea or in court, to deal with the disqualification issue, as it was contended both by Lise Kvinsland, counsel, in the written plea and by Møyfrid Walston that, since there would be a completely new trial in the High Court, it was not necessary to get a ruling on the merits of this issue. Thus there was no adjudication of any claim that the District Court had made a procedural error due to disqualification and that the District Court's judgment should therefore be quashed and the case referred back to it for fresh examination. It is however correct that Møyfrid Walston stated that she was still of the view that the judge was disqualified.
As regards the question whether or not the mortgage bond is of a secondary nature, I refer to the security agreement according to which all the mortgaged properties are to secure any and all indebtedness between the parties. The amount of the debt was dealt with in the main case. In this context it is not necessary to document whether or not it exceeds NOK 6 million (the figure was the result of an oversight) as it is sufficient to point out that after depreciation and the grant from the Regional Development Fund, the outstanding debt was NOK 2.3 million, and that after depreciation no interest or instalment payments have been made with the exception of an insignificant instalment. Given that the bid established for the property in Stryn is for NOK 1 550 000, it goes without saying that the question whether the bond is of a secondary nature or not is of no importance.
Evidence: 1. Ruling by the Nordfjord Court of Execution and Enforcement of 8 March 1996 in case no. 95-00301 C.
The correct amount of the debt is:
Principal and interest as per 1 October 1996 NOK 4,627,781.80
Costs awarded, etc., with interest NOK 322,796.45
Expenses NOK 11,630.00
Sum NOK 4,962,208.25
I apologise for any inconvenience that my oversight may have caused.
The property in Stryn has been sold for an amount that is considerably less than the principal. Thus it is obvious that the question whether or not the mortgage bond is secondary is of no importance in this case. However, the fact is, as noted above in the security agreement, that all the properties are to secure any and all indebtedness between the parties, so it is permissible to realise any or all of the mortgaged property, cf. section 1-12, first paragraph, of the Mortgages and Pledges Act (panteloven).
If it is probable that the amount realised by selling the properties would exceed the amount necessary to cover the mortgagee's claim, a specific calculation must be made and a proper sequence for such realisation must be drawn up, as provided in section 11-19 of the Enforcement Act. Section 84 of the former Enforcement Act made some provision for a similar procedure.
At any rate it is only in cases where there is a danger of excessive coverage that it is necessary to draw up any sequence in connection with realisation. There is no such danger in the present case.
Written plea in 4 – four – copies.” 31. On 25 October 1996 the applicants' lawyer ceased to represent them. By a letter of 5 November 1996, referring to the Vågsøy case, the applicants informed the High Court of this fact and requested it to provide them with “a copy of all documents in the interlocutory appeal case directly to [them]”. In another letter of the same date they requested “all the documents concerning” the Stryn case.
In a letter of 22 November 1996 to the High Court, they renewed their request for the production of documents in both cases, invoking the approaching time-limit for making supplementary submissions in the Stryn case. They added that their former lawyer had refused to provide them with the documents. 32. On 3 December 1996 the High Court upheld the District Court's decision of 25 June 1996. It had particular regard to the fact that, while employed by the Bank, Mr Justice Steintveit had not been involved with the loan agreement concerned, and that a considerable time had elapsed between the date of his leaving the Bank (1986) and the date when the Bank requested the compulsory sale of the applicants' property (1995). Moreover, the Bank was a large company with branches all over the country, whose employees – one might expect – would have a less personal relationship to their employer than would normally be the case with smaller companies. While Mr Steintveit was assigned to the Oslo branch, the loan agreement had been arranged at the local branch in Sandane. Furthermore, the applicants had not disputed his ability to sit in 1994 when he dealt with the dispute regarding the underlying circumstances. 33. On 4 December 1996, the day after its above-mentioned decision, the High Court transmitted to the applicants a copy of the case-file. On 5 December they complained to the High Court about the procedural error, stating the following:
“We refer to the letter dated 4 December 1996 in which we were finally sent the documents in the interlocutory appeal case. This in fact occurred one day after the ruling on the interlocutory appeal was given.
This is a serious procedural error on the part of the Gulating High Court for which we hold the judges responsible.
The reason why we asked to be sent the documents in the case was because Mr. Trygve Fjeld is no longer our lawyer.
We did not have an overview of the documents that had been submitted to the court and, in order not to suffer legal prejudice, it was imperative for us to obtain the documents from the court. See letters of 5 November 1996 and 25 November 1996.
As I now look through the documents that we received today, I see that several things are missing and we are seeing a written plea by Mr. Eriksen dated 9 October 1996 for the first time.” 34. Subsequent to further exchanges, on 10 December 1996 the High Court sent to the applicants copies of their lawyer's writ of appeal and supporting arguments dated 23 August 1996. As regards the Bank's lawyer's submissions of 9 October 1996, the High Court explained that, since the submissions did not contain any information of importance to the case, they had not been communicated until notification of the High Court's decision. As their lawyer at that time had ceased to represent them, it had not been sent to him. 35. On 22 December 1996 the applicants appealed to the Supreme Court's Appeals Selection Committee, requesting that the High Court's decision be quashed and that the case be referred back to it for a fresh examination. On this occasion the applicants requested to be given until 6 January 1997 to supplement their appeal, which they did on that date, setting out their arguments, notably on alleged procedural errors on account of Mr Justice Steintveit's participation and the High Court's omission to communicate case-documents, and attaching an analysis of procedural errors allegedly committed by the Nordfjord Court of Execution and Enforcement. 36. The applicants complained that, in the proceedings before the High Court, the latter had given a decision on 3 December 1996 without having communicated the case-documents to them, as requested on 5 November 1996 and again on 22 November 1996. The applicants were then not aware of the observations of 9 October 1996 submitted by the Bank's lawyer, on which they had comments of importance for the outcome of the case. The observations had contained an admission to the effect that the District Court judge had since 1992 been aware of the applicants' objections to his dealing with their case. Moreover, whilst the Bank's observations of 10 September 1996 had stated that the applicants' debts had exceeded NOK 6 million, those of 9 October had indicated that they amounted to barely NOK 5 million. 37. On 4 February 1997 the applicants submitted additional observations commenting on a writ filed by the Bank on 29 January 1997 and expressing their wish that the issue of the judge's ability to sit be given careful examination. Moreover, they informed the Supreme Court that because of the shortage of time they had not been able to finalise the attachments to their analysis of 6 January 1997, and that these would be sent by ordinary mail on 5 February 1997. 38. On 6 February 1997 the Supreme Court's Appeals Selection Committee rejected the applicants' appeal. 39. As regards the applicants' complaint about the High Court's omission to communicate the observations of 9 October 1996, the Committee reiterated that the Bank had in a previous case a legally enforceable judgment according to which the mortgage securities invoked were binding on the applicants and could be used as a ground for compulsory sale of the properties for recovery of debts that they had vis-à-vis the Bank. Moreover, the appeal before the High Court had been limited to the question of the first instance judge's impartiality. Thus, the Committee found, the observations of 9 October 1996 contained no information of any importance for the decision to be taken by the High Court. It concluded that the High Court's omission to communicate the observations did not constitute an error of procedure for the purposes of Article 401, second paragraph of the Code of Civil Procedure (tvistemålsloven). Nevertheless, the Committee added, a party's pleadings should as a rule be communicated to the other party or the latter's representative. 40. As regards the High Court's omission to respond to the applicants' request for a copy of all the appeal documents, the Committee recalled that, under Article 135 of the Code of Civil Procedure, the parties may request copies of those documents which concern the case. It observed that in the circumstances at hand, where the case had long since been ready for adjudication by the High Court, the latter was not wrong in deciding the case before transmitting a copy of the bulky case-file to the applicants. In any event, this could not constitute an error of procedure which affected the High Court's decision. 41. According to the applicants, subsequent to the above decision, the Supreme Court returned to them their observations of 4 February 1997, with the enclosures, stating that a decision had already been taken in the case. | [
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9. The applicant was born in 1956 and lives in Istanbul. 10. On 15 September 1981 police officers from the Ankara Security Directorate arrested the applicant at his mother’s house in the Safranbolu district of Zonguldak on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was placed in custody at the Ankara Security Directorate. The applicant stated during his questioning that he had hidden ammunition belonging to the organisation in the chimney of his mother’s house. A search was conducted of the house and a large number of weapons and bullets, including a Kalashnikov automatic rifle and dynamite, were recovered. 11. On 27 October 1981 the applicant was brought before the Military Court judge who ordered his detention on remand. 12. On 26 February 1982 the public prosecutor at the Ankara Martial Law Court, whose jurisdiction covered Ankara, Çankırı and Kastamonu provinces, indicted the applicant together with 723 others. The charges against the defendants included membership of Dev-Yol, an organisation which aimed to replace the constitutional order with a Marxist-Leninist regime contrary to Article 146 of the Turkish Criminal Code. The applicant was further charged with robbery, bombing and armed attacks against persons, and opening fire on three houses. 13. On 11 November 1987, having spent more than six years in prison, the applicant was released pending trial. 14. After martial law was lifted, the Ankara Martial Law Court was subsequently designated as the Martial Law Court attached to the 4th Army Corps. 15. On 19 July 1994 the Martial Law Court found the applicant guilty of the aforementioned offences. It was also established that the ammunition found in the house of the applicant’s mother had been used in various illegal activities. The applicant was convicted of an offence under Article 146 § 3 of the Turkish Criminal Code. The applicant appealed to the Military Court of Cassation (Askeri Yargıtay). 16. On 26 December 1994 following the promulgation of Law no. 3953 of 27 December 1993 which abolished the jurisdiction of the Martial Courts, the case-file was transferred from the Military Court of Cassation to the Criminal Division of the Court of Cassation (Yargıtay Ceza Dairesi). 17. On 27 December 1995 the Court of Cassation quashed the judgment of the first instance court and sent the case-file to the Ankara Assize Court so that the applicant could be sentenced under Article 146 § 1 of the Turkish Criminal Code which prescribed capital punishment for the category of offence of which the applicant was convicted. 18. On 16 July 2002 the Ankara Assize Court found the applicant guilty under Article 146 § 1 of the Turkish Criminal Code and sentenced him to death. This sentence was commuted to a life sentence. The applicant’s appeal against this judgment is at present pending before the Court of Cassation. | [
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7. The applicant was born in 1961. 8. In March 1994 the applicant was suspected by police officers in the Cambridge Constabulary of involvement in robbery. The view was taken by the Cambridgeshire Regional Crime Squad that it was necessary to place a hidden battery-powered listening and recording device in the applicant’s home. An application was therefore made to the Chief Constable for the instalment of such a device, which was authorised on 21 June 1994, pursuant to the non-statutory Home Office Guidelines of 1984. 9. In order to install the device, the police decided to arrest the applicant and his partner in connection with another matter (credit card fraud) and to remove them and their children from their home. Enquiries into the credit card fraud had previously lapsed without any arrest or questioning of the applicant or his partner. However, DC Harrison of the Regional Crime Squad and WDC Fletcher, an officer in the intelligence bureau of the Cambridgeshire County Constabulary, decided to revive the investigation for the purpose of removing the applicant and his partner from their home for long enough to enable the installation of the listening device. 10. WDC Fletcher briefed three officers about purported grounds for arresting the applicant and his partner for credit card fraud, without informing them of the intended installation of the device. 11. At 6.15 a.m. on 8 July 1994 the three officers arrested the applicant’s partner in her home and shortly thereafter arrested the applicant. Both were taken to the police station. The officers seized the keys to the applicant’s home and car. Officers from the Regional Crime Squad then used the house key to enter the applicant’s home and install the listening device. They also had a copy of the key cut to enable them to enter the house at a later date. 12. The applicant and his partner were released from police custody on the evening of 8 July 1994 after being interviewed. Neither was charged, but both were released on police bail and required to report back to the police station on 24 August 1994. The applicant’s keys to his home and car were returned to him. 13. On 24 August 1994 the applicant and his partner attended the police station in accordance with their bail and were interviewed again. Neither was charged at that time or subsequently with credit card fraud. During their interview police officers entered their home using the duplicate key in order to renew the battery in the listening device. 14. During September 1994, police officers again entered the applicant’s home to renew the battery in the listening device. 15. As a result of conversations that were recorded between the applicant and J, his co-defendant in the criminal proceedings, both men were arrested in September 1994. They were charged with conspiracy to commit robbery and burglary between 1 January 1993 and 9 December 1994. 16. The trial was at Peterborough Crown Court in October 1996. An application was made, in a voir dire procedure, on behalf of the defendants for the tape recorded evidence to be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it had been obtained unlawfully and in breach of Article 8 of the European Convention on Human Rights. This application was rejected by the trial judge on 24 October 1996. The judge found that the officers who carried out the arrests on 8 July 1994 did have reasonable grounds for suspecting those whom they arrested and that if further information had arisen at the interviews or from the other enquiries which were carried out it was possible that charges would have been brought for those matters. He did find that the removal of the applicant’s keys was in breach of the search and seizure requirements of PACE, that the taking and use of the house key constituted a civil wrong, that there was a trespass to the applicant’s home and that minor criminal damage had taken place. However, balancing the various factors, including the fact that the tape-recordings amounted to confessions of serious crimes involving the possible use of firearms, that there was no suggestion of improper inducement or incitement to commit the offences and that there was no dispute about the content of the conversations, the judge ruled the evidence admissible. 17. As a result of the ruling on admissibility, the applicant and his co-defendant changed their pleas to guilty. They were each sentenced to ten years’ imprisonment. 18. On 18 December 1997, after being granted leave to appeal, the applicant’s appeal against conviction was dismissed by the Court of Appeal (R. v. Chalkley and Jeffries [1998] 2 All ER 155).
On 15 June 1998 the House of Lords refused the applicant’s petition for leave to appeal.
In early 2001, the applicant was released on licence. | [
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7. The applicant was born in 1931 and is currently serving a prison sentence in HM Prison Highdown, Surrey. 8. On 30 November 1988, the applicant was convicted at the Central Criminal Court in London of robbery, wounding with intent, possessing firearms with intent to endanger life and possessing ammunition with intent to endanger life. 9. The offences arose out of a single robbery which occurred on 23 November 1987 at a shop in Woolwich. One of the applicant’s associates entered the shop, snatched a Securicor bag containing 10,400 pounds sterling and held a loaded revolver to the head of a member of the shop’s staff. The applicant, armed with a loaded revolver, kept watch outside. During a changeover of cars in their flight from the crime, the applicant and his associates were intercepted by the police, who surrounded them and told them to lay down their arms. The applicant fired six shots, wounding one police officer in the leg. The police returned fire and one of the applicant’s associates was killed. The applicant received a superficial wound to his shoulder. He was arrested and immediately detained. 10. The applicant was subsequently tried and was not represented at his trial. He stated that he was informed by his counsel that his defence was “political” in nature and could not be put by a professional advocate. His counsel then withdrew. The applicant was sentenced to life imprisonment. In sentencing him, the judge made reference to his long, violent criminal record and the dangerous nature of his character. 11. In June 1990, the Court of Appeal refused the applicant’s renewed application for leave to appeal against conviction, leave having already been refused by a single judge. The Court of Appeal also rejected the applicant’s appeal against sentence. At this hearing the applicant was again not represented. 12. On 9 December 1992, a certificate was issued on behalf of the Secretary of State, stating that the provisions of the Criminal Justice Act 1991 for certifying the tariffs of discretionary life sentence prisoners would not apply to the applicant. The applicant’s release from prison would therefore be at the Home Secretary’s discretion, following a favourable recommendation from the Parole Board and after consultation with the Lord Chief Justice and trial judge, if available. The certificate stated that it was Home Office policy that no life sentence prisoner should be detained more that 17 years without a review by the Parole Board. The first review of the applicant’s case by the Parole Board would be in November 2004. The applicant stated that he had no record of receiving this document. 13. On 27 July 1995, the Prison Service informed the applicant that, following a judgment of the House of Lords, the Secretary of State would now be setting a specific tariff which would be disclosed to the applicant, along with the judicial recommendations and any reasons for any departure from them. The judicial recommendations - that in the applicant’s case “ ’life’ should mean ‘life’ ” – were disclosed to the applicant and he was invited to make representations. 14. On 5 February 1998, the Home Secretary agreed to certify that the applicant should be subject to the arrangements for the release of discretionary life prisoners, despite having previously qualified the applicant as someone serving a mandatory life sentence. The decision of 5 February 1998 also set the tariff of the applicant’s sentence at 16 years, expiring on 24 November 2003. 15. The applicant’s solicitors made written submissions as to the appropriate length of the tariff and submitted that the applicant should be entitled to an oral hearing before the Lord Chief Justice. The applicant’s solicitors were informed by a letter of 13 August 1998 that the Lord Chief Justice had revised his opinion and that he recommended a tariff of 12-13 years, but that no oral hearing would be allowed. On 27 November 1998, the Prison Service informed the applicant’s solicitor that the Home Secretary had decided on a tariff of 12.5 years, to expire in May 2000. 16. On 8 January 1999, the applicant made an application for judicial review of the Home Secretary’s decision of 27 November 1998. The application was dismissed on 11 February 1999. A renewed application was dismissed on 22 March 1999. 17. After the tariff expired in May 2000, the applicant became eligible for Parole Board review procedures. He has stated however that he has decided not to participate in the procedures due to his continuing belief that the Government have breached his human rights and still refuses to acknowledge those breaches. | [
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4. The applicant was born in 1963 and lives in Krems (Austria). He is a practising lawyer by profession. 5. On 18 June 1993 a colleague, Mr P., laid a disciplinary information against the applicant alleging that he had infringed the profession’s honour and reputation in the context of administrative criminal proceedings relating to traffic offences. He was suspected of having misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. Subsequently, on 10 September 1993 the Disciplinary Council of the Lower Austrian Bar Chamber (Disziplinarrat der Niederösterreichischen Rechtsanwaltskammer), upon request of the Bar Chamber’s Prosecutor (Kammeranwalt), appointed an Investigating Commissioner (Untersuchungskommissär). 6. On 16 September 1993 the Investigating Commissioner informed the applicant that disciplinary proceedings against him were opened and requested him to file observations as regards the charges against him. 7. On 4 October 1993 the applicant complied with this request. 8. On 13 June 1994 the Investigating Commissioner submitted a report to the Disciplinary Council. 9. On 7 October 1994 the Disciplinary Council discontinued the proceedings against the applicant. The Bar Chamber’s Prosecutor filed an appeal against this decision. 10. On 15 December 1994 the applicant submitted his observations on the appeal. 11. On 20 February 1995 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) allowed the Bar Chamber’s Prosecutor’s appeal and remitted the case to the Disciplinary Council. 12. In August 1995, after the case had been taken over by another Investigating Commissioner, the latter agreed with the Vienna Federal Police Directorate (Bundespolizeidirektion) to question the police officers involved in the traffic control at issue by way of letters rogatory. On 3 November 1995 he filed letters rogatory with the Donaustadt District Court (Bezirksgericht) which were subsequently transferred to the Josefstadt District Court. 13. On 13 December 1995 the two police officers were questioned by the Josefstadt District Court. 14. On 8 February 1996 the Investigating Commissioner submitted his report to the Disciplinary Council. 15. On 3 June 1996 the Disciplinary Council, upon the Investigating Commissioner’s report, decided to open the main proceedings. This decision was served on the applicant on 31 July 1996. 16. On 30 August 1996 the applicant filed his observations. 17. On 20 September 1996 the Disciplinary Council fixed a hearing for 14 October 1996 and summoned the applicant, his spouse and the two police officers. As the applicant’s spouse and one police officers submitted that they could not appear at that date, the hearing was cancelled. 18. On 24 February 1997 the Constitutional Court, in proceedings unrelated to the present one’s, issued a decision concerning the composition of the Disciplinary Council. On 15 May 1997, after an internal discussion of the consequences of the Constitutional Court’s decision for the proceedings at issue, Mr F was appointed as new chairman of the Disciplinary Council. 19. On 17 September 1997 the Disciplinary Council fixed a hearing for 6 October 1997. The applicant’s spouse and the two police officers submitted that they could not appear at that date. 20. On 19 September 1997 the applicant filed observations and challenged the chairman and another member of the Disciplinary Council for bias. 21. On 23 September 1997 a new chairman was appointed. 22. On 6 October 1997 the Disciplinary Council held a hearing. The applicant requested to summon his spouse for the next hearing. The Disciplinary Council adjourned the case and decided to obtain the file concerning the administrative criminal proceedings against the applicant. 23. On 9 February 1998 the Disciplinary Council requested the Vienna Federal Police Directorate to submit the file concerning the administrative criminal proceedings against the applicant. 24. On 5 August 1998, since the file at issue had meanwhile been transmitted to an other administrative authority, the Disciplinary Council filed a new request to submit the file. 25. On 6 August 1998 the Disciplinary Council fixed a hearing for 14 September 1998. The applicant again challenged a member of the Disciplinary Council for bias. 26. On 14 September 1998 the Disciplinary Council held a hearing. The only witness heard was one of the two police officers, the other witnesses and the applicant submitted that they were not able to appear. 27. On 14 October 1998 the Disciplinary Council fixed another hearing for 9 November 1998. The applicant again challenged two members of the Disciplinary Council for bias and submitted that he was prevented from appearing. 28. On 9 November 1998 the Disciplinary Council held a hearing and convicted the applicant under section 10 § 2 of the Lawyers Act. It found that he had misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. The applicant had thereby infringed the profession’s honour and reputation. The Disciplinary Council ordered him to pay an additional fine of ATS 10,000 as he had already been ordered to pay ATS 25,000 in four other sets of disciplinary proceedings. 29. On 15 December 1998 the applicant filed an appeal against this decision and on 11 January 1999 the Bar Chamber’s Prosecutor submitted his observations in reply. 30. On 14 June 1999 the Appeals Board dismissed the applicant’s appeal. 31. On 30 September 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, about the length of the proceedings and claimed that the disciplinary authorities had failed to take the excessive length of the proceedings into account as a mitigating circumstance. 32. On 29 February 2000 the Constitutional Court dismissed the applicant’s complaint. This decision was served on the applicant on 6 April 2000. | [
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8. By a penal order of 8 October 1997, the applicant was fined 1,000 French francs (FRF) for an assault on his wife that did not incapacitate her from work. On 8 December 1997 he applied to the Saverne Police Court to have that order set aside. 9. On 3 July 1998 the applicant was served by a court bailiff with a summons requiring him to attend the Police Court on 15 September 1998 to answer a charge of “intentional assault entailing no unfitness for work” on 24 July 1997. The offence was classified as a “Class 4 minor offence” and carried a maximum fine of FRF 5,000 under Article 131-13 of the Criminal Code. 10. On 11 August 1998 the applicant lodged a legal-aid application with the legal-aid office of the Saverne tribunal de grande instance, in accordance with the provisions of the Legal Aid Act of 10 July 1991 and its implementing decree of 19 December 1991. 11. He furnished evidence, which the legal-aid office accepted, that his monthly income was FRF 2,423. In accordance with section 4 of the 1991 Act, he claimed to be entitled to full legal aid. 12. A committee of the legal-aid office presided over by R. (as attested by a letter of November 2000 from the registry of the Saverne tribunal de grande instance) dismissed the application on 27 October 1998 as being “manifestly inadmissible, since it concern[ed] a Class 4 minor offence”. 13. On 13 November 1998 the applicant appealed against that decision to the President of the Saverne tribunal de grande instance.
He said that in a similar case the Strasbourg tribunal de grande instance had construed the decree differently and granted legal aid. In an order of 16 September 1998, the Strasbourg tribunal de grande instance had noted a conflict between the decree and the Act and stated that to resolve it the decree had to be construed in the light of the purpose of the Act. 14. The appeal was heard by R., now sitting in his capacity as the President of the Saverne tribunal de grande instance. He upheld the impugned decision in an order of 27 November 1998, against which French law afforded no right of appeal (section 23, sub-paragraph 2, of the Act of 10 July 1991).
He gave a number of reasons for dismissing the applicant’s appeal:
“... although section 10 of the aforementioned Act [of 10 July 1991] provides that ‘legal aid shall be granted ... before all courts’ ..., it does not require it to be granted in all types of proceedings.
... the table appended to Article 90 of the decree and to which the decree refers for the calculation of counsel’s remuneration only contemplates an accused receiving assistance in the police court for Class 5 minor offences.
... that restriction cannot be due to an oversight on the part of the public authorities.
... it is not for either the legal-aid office or the president of the court concerned unilaterally to extend the scope of rules in respect of which no appeal has been made to the Conseil d’Etat.
... it is perfectly clear that the relevant table is restrictive in scope.” 15. On 15 December 1998 the applicant, assisted by a lawyer, attended the hearing at the Saverne Police Court. In a judgment delivered that same day, the court found him guilty of assault entailing no unfitness for work, but decided not to impose a penalty. | [
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8. The applicant was born in 1948 and lives in Berlin. At birth, she was registered as male, with the forenames Bernhard Friedrich. 9. In 1990 the applicant instituted proceedings before the Schöneberg District Court, asking it to change her forenames to Carola Brenda. 10. On 20 December 1991 the District Court granted the applicant’s request. The court found that the conditions under section 1 of the Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen) were met in the applicant’s case. 11. The District Court, having heard the applicant and having regard to the written opinions of the psychiatric experts Prof. R. and Dr O. of 28 August 1991, and of the psychological expert Prof. D. of 1 September 1991, considered that the applicant was a male-to-female transsexual. It noted that, although Prof. R. and Dr O. had indicated that the applicant was not a typical transsexual, the Transsexuals Act required only that the condition of transsexuality be met, irrespective of the particular form it took. Moreover, the court found that the experts had convincingly shown that the applicant had been for at least the last three years under the constraint of living according to these tendencies and that there was a high probability that the she would not change these tendencies in the future. 12. In 1992 the applicant, represented by counsel, brought an action with the Berlin Regional Court against a German health insurance company. Having been affiliated to this company since 1975, she claimed reimbursement of pharmaceutical expenses for hormone treatment. She further requested a declaratory judgment to the effect that the defendant company was liable to reimburse 50% of the expenses for gender reassignment operations and further hormone treatment. As an employee of the Berlin Land, she was entitled to allowances covering half of her medical expenses; the private health insurance was to cover the other half. 13. On 20 October 1992 the Berlin Regional Court decided to take expert evidence on the questions of whether or not the applicant was a male-to-female transsexual; whether or not her kind of transsexuality was a disease; whether or not the gender reassignment operation was the necessary medical treatment for the transsexuality; and whether or not this treatment was generally recognised by medical science. 14. The psychiatrist Dr H., having examined the applicant in January 1993, delivered his opinion in February 1993. In his conclusions, he confirmed that the applicant was a male-to-female transsexual and that her transsexuality had to be regarded as a disease. He further indicated that gender reassignment surgery was not the only possible medical treatment in cases of transsexuality. In the applicant’s case, he recommended such an operation from a psychiatric-psychotherapeutic point of view, as it would improve her social situation. He noted that gender reassignment surgery was not generally recognised by medical science and that there were several comments in the specialised literature questioning whether the operation was effective; however, it could be assumed that the fact that transsexuals accepted themselves and their bodies contributed to their stabilisation. According to him, many transsexuals reached such stability only after an operation. In his view, this was the case for the applicant and an operation should therefore be approved. The expert concluded that the gender reassignment operation formed part of the curative treatment of a mental disease. 15. On 3 August 1993 the Regional Court, following an oral hearing, dismissed the applicant’s claims. The court considered that under the relevant provisions of the General Insurance Conditions (Allgemeine Versicherungsbedingungen) governing the contractual relations between the applicant and her private health insurance company, the applicant was not entitled to reimbursement of medical treatment regarding her transsexuality. 16. In its reasoning, the court, having regard to the opinion prepared by Dr H. and to the expert opinions prepared in the proceedings before the Schöneberg District Court, considered that the applicant was a male-to-female transsexual and that her condition had to be regarded as a disease. The question whether the treatment in question was recognised by medical science was irrelevant. In the court’s view, hormone treatment and gender reassignment surgery could not reasonably be considered as necessary medical treatments. Having regard to the relevant case-law of the Federal Social Court, the court found that the applicant ought first to have had recourse to less radical means, namely an extensive course of 50 to 100 psychotherapy sessions, as proposed by the psychiatric expert Prof. D. and terminated by the applicant after two sessions (according to the Government, the original manuscript decision referred to twenty-four sessions). The court was not convinced that, on account of the applicant’s resistance to therapy, the intended operation was the only possible treatment. 17. Moreover, the Regional Court found that the evidence did not show conclusively that the gender reassignment measures would relieve the applicant’s physical and mental difficulties, a further criterion for assuming their medical necessity. The expert Dr H. had merely recommended the operation from a psychiatric-psychotherapeutic point of view, as it would improve the applicant’s social situation. His submissions, according to which the effect of gender reassignment surgery was often overrated, did not show that the gender reassignment measures were necessary for medical reasons. The court had not, therefore, been required, of its own motion, to summon the expert to explain his opinion orally. 18. On 11 October 1993 the applicant lodged an appeal with the Berlin Court of Appeal. In the written appeal submissions, the applicant objected to the findings of the Regional Court in so far as they denied the necessity of gender reassignment measures. The applicant also submitted that she had unsuccessfully attended between twenty-four and thirty-five psychotherapy sessions. In this connection, she referred to the written expert opinions and also mentioned the possibility of taking evidence from these experts. 19. In November 1994 the applicant underwent gender reassignment surgery. According to her, having been unfit for work since February 1994, she had agreed with the physician treating her that her suffering would not permit her to await the outcome of the appeal proceedings. 20. On 27 January 1995 the Court of Appeal, following an oral hearing, dismissed the applicant’s appeal. The Court of Appeal valued the claims at stake at 28,455.92 German marks. 21. The Court of Appeal noted that the applicant was a male-to-female transsexual and that, according to the opinion of the expert Dr H., her transsexuality constituted a disease, a matter not in dispute between the parties to the proceedings. 22. Referring to clause 1 of the General Insurance Conditions, the Court of Appeal upheld the Regional Court’s conclusions that the expert Dr H. had not confirmed the necessity of gender reassignment measures. The Court of Appeal had regard to various passages of the expert opinion. Thus, it noted that the expert had considered gender reassignment surgery as one possible medical treatment; however, the question of necessity could not be clearly affirmed given the diverging scientific opinions and results. In his view, consensus existed on the improved psycho-social situation following the change of the sexual role, although the effect of the operation as such was often overrated. In the applicant’s case, the advantages of an operation would, in the expert’s view, prevail, while psychotherapy could not cure the transsexuality on account of the applicant’s chronic narcissistic character structure; even extended psychotherapy was not likely to result in any changes. Turning to the expert’s statement that gender reassignment was not the only possible curative treatment, but recommendable from a psychiatric-psychotherapheutic point of view in order to improve the applicant’s social situation, the Court of Appeal found that, with this cautious formulation, the expert had not clearly affirmed the necessity of an operation. The applicant had therefore failed to prove that the conditions for reimbursement of medical treatment were met in her case. The Court of Appeal added that, while the expert had mentioned that the gender reassignment operation “formed part of the curative treatment of a mental disease”, taking his other statements into account, he had regarded success as rather uncertain. Such a vague hope could not justify the necessity of medical treatment, bearing the aim of health insurance in mind. Thus, the health insurance had to bear only costs of treatment suitable to cure a disease. In the applicant’s case, the expert had explained that gender reassignment measures could not be expected to cure the applicant’s transsexuality, but at best to improve her psycho-social situation. This result was insufficient, as such an improvement did not affect the applicant’s transsexuality as such. With regard to these remaining doubts, the Court of Appeal concluded that the applicant had failed to prove the necessity of her treatment. 23. The Court of Appeal further considered that, in any event, the applicant was not entitled to reimbursement under clause 5.1(b) of the General Insurance Conditions on the ground that she had herself deliberately caused the disease, as argued by the defendant in earlier submissions. 24. Referring to the details of her case history as contained in the expert opinion of Dr O. of August 1991, the Court of Appeal found in particular that the applicant was born as a male child and did not claim that she was a female on account of chromosomal factors. Initially, she had not adopted female behaviour. On account of her male orientation, she had been able to resist feelings that she would have preferred to be a girl and that this would have been more appropriate, and had controlled her emotional life at an early stage. 25. The Court of Appeal considered that the applicant had continued to live as a man. In its view, the applicant’s “fear of bigger boys” at school was not gender-specific. Furthermore, applying to join the armed forces did not indicate female feelings, and she had left the armed forces not because of the feeling that she was a “woman” but because she had experienced degrading treatment. The applicant had married in November 1972, likewise a sign of her male orientation at that time. As from 1981, the spouses had wished to have a child. 26. According to the Court of Appeal, the “turning-point”, as stated by the applicant, had been the moment when, after an unsuccessful operation in 1986, she had realised that she was infertile. The Court of Appeal quoted the following passage from the expert opinion of 1991:
“The recognition that he was infertile is a decisive factor confirming the subsequent transsexual development.” 27. It continued in the following terms:
“Fully aware of this position, the plaintiff concluded for herself: ‘If you cannot have children, you are not a man’, and as a consequence she went one step further and wanted to be a woman from then on. She had never otherwise felt that she was, or that she had to become, a woman, but was merely making a statement that she could do without a penis and still have satisfying relations with his [sic] wife ... Doing without the one is not the same as an irresistible desire for the other. In furtherance of the self-imposed goal of wishing to be a woman, from December 1986 – without medical advice, assistance or instruction – she took female hormones ...
That was deliberate. Having recognised – no doubt painfully – that she could not have children, she decided to distance herself from her past as a man ... It was this deliberate act of self-medication that led the plaintiff ever more to her decision that she wanted to be a woman and to look like one, although it was biologically impossible. This was based on her limited preparedness or ability to reflect critically ... but was wrongfully deliberate because the plaintiff was at all events at that stage in a position to see what the consequences of her ‘self-medication’ would be, and to act accordingly.
...” 28. On 25 October 1996 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. | [
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9. The applicant was born in 1932 and lives in Wels. 10. On 4 April 1984 the Wels Regional Court (Kreisgericht) served an arrest warrant on the applicant for suspicion of continued aggravated fraud (gewerbsmäβiger schwerer Betrug) committed since 1 January 1979. The same day the applicant was arrested. 11. On 5 April 1984 the Wels Regional Court ordered the applicant’s detention on remand. 12. On 13 and 17 April 1984 and 7 June 1984 supplementary charges led to the extension of the preliminary investigations against the applicant. 13. On 4 May 1984 the appointed accountancy expert was sworn in. 14. On 28 September 1984 the applicant was released from detention. 15. During the pre-trial phase in 1985 and 1986 more than 60 witnesses were heard, some of them under letters rogatory. On 14 February 1986 the expert submitted a comprehensive opinion, as a result of which further witnesses were heard. 16. On 22 April 1987 the preliminary investigations were closed and the file, which comprised 15 volumes consisting of more than 500 documents, was transferred to the Wels Public Prosecutor’s Office (Staatsanwaltschaft). 17. On 6 July 1987 the Public Prosecutor’s Office preferred the indictment charging the applicant and three co-accused with continued aggravated fraud, and with negligent and fraudulent bankruptcy (fahrlässige und betrügerische Krida). The bill of indictment, which arrived at the Regional Court on 29 July 1987, comprised 143 pages and consisted of 29 counts of aggravated fraud, out of which 10 concerned the applicant; 5 counts of fraudulent bankruptcy, out of which one concerned the applicant; and 4 counts of negligent bankruptcy all concerning the applicant.
The major part of the charges as well as further charges relating to various other offences concerned one co-accused, Mr H., a former judge at the Wels Regional Court. The applicant’s and Mr H.’s objections against the indictment were dismissed by the Linz Court of Appeal (Oberlandesgericht). 18. On 30 May 1988 the Public Prosecutor’s Office requested the Supreme Court (Oberster Gerichtshof) that jurisdiction over the case be transferred to the Vienna Regional Criminal Court (Landesgericht für Strafsachen) on the ground that H. had moved to Vienna and that numerous witnesses were residing there. On 9 August 1988 the Supreme Court allowed the transfer. The file arrived at the Vienna Regional Court on 16 September 1988, which set trial hearings for the period between September and November 1989. 19. On 25 September 1989 the Vienna Public Prosecutor’s Office filed a request for transfer of jurisdiction to the Linz Regional Court since it had turned out that H. had not moved to Vienna. The Linz Regional Court was proposed by the Public Prosecutor’s Office on the ground that it was feared that all the judges of the Wels Regional Court could declare themselves biased as the case concerned their former colleague H. In his statement of 13 October 1989 the applicant indicated that he had no objections against this transfer. On 18 December 1989 the Supreme Court allowed the transfer. On 29 December 1989 the Linz Public Prosecutor’s Office requested that a trial hearing be fixed. 20. Subsequently the Linz Regional Court, sitting with two professional and two lay judges, suggested ex officio the re-transfer of the case to the Wels Regional Court, which was refused by the Linz Court of Appeal on 13 June 1990. On 22 June 1990 a first trial hearing was set for 18 December 1990. 21. Between 18 December 1990 and 5 September 1991, the Linz Regional Court, sitting with two professional and two lay judges, held 55 trial hearings involving the applicant and the co-accused, Mr H. Numerous witnesses as well as the appointed expert were heard. On the latter date the Regional Court convicted the applicant of continued aggravated fraud and negligent bankruptcy and sentenced him to 18 months’ imprisonment, 14 of which were suspended on probation. The written version of the judgment, comprising 692 pages, was served on 11 December 1991. The applicant did not appeal. 22. On 7 January 1992 the Public Prosecutor’s Office filed a plea of nullity and an appeal against the sentence with the Supreme Court. The co-accused H. also filed a plea of nullity and an appeal. 23. On 26 November 1992 the Supreme Court, upon H.’s plea of nullity, found that there were legitimate doubts as to the expert’s impartiality and partly set aside the Linz Regional Court’s judgment. Due to the principle of “beneficium cohaesionis”, pursuant to Section 290 § 1 of the Code of Criminal Procedure (Strafprozessordnung), the applicant’s conviction was also set aside. The case was referred back to the Regional Court. This judgment was served on the applicant’s counsel on 3 December 1992. 24. On 14 April 1993 the Supreme Court allowed the co-accused H.’s request for transfer of jurisdiction to the Wels Regional Court because the concerns about possible bias did no longer exist. On 16 September 1993 the Regional Court remitted the file to the investigating judge for obtaining a new opinion by an expert in accountancy and for further investigations, including the seizure of further accounting documents. On 14 December 1994 the expert requested the submission of these documents, which he inspected on 6 March 1995. On 7 July 1995 the applicant’s bankruptcy and tax records were submitted to the expert. On 7 November 1996 the first part of the expert opinion arrived at the court and the remainder on 16 April 1997. 25. On 9 August 1997 the file was transferred to the trial court, which, on 1 December 1997, fixed a hearing for 20 January 1998. 26. The Wels Regional Court held hearings on 20, 27 and 29 January 1998 and on 3, 5 and 10 February 1998, following which it decided to separate from the rest of the case the proceedings against the applicant. At the close of the hearing on 10 February 1998 the Regional Court convicted the applicant of negligent bankruptcy and sentenced him to one year’s imprisonment suspended on probation. Both, the applicant and the Public Prosecutor waived their right to appeal. Thus, the judgment became final on 10 February 1998. On 8 March 2001 the written version of the judgment was served on the applicant’s counsel, contrary to Section 270 § 1 of the Code of Criminal Procedure, which provides for the service of the written version within four weeks after the oral judgment. | [
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4. On 8 February 1977 affiliation proceedings were brought in respect of the applicant before the then Košice City Court. 5. On 30 November 1988 the Košice Regional Court quashed the first instance judgment delivered on 15 September 1987. 6. The Košice II District Court, to which the case fell to be examined, experienced difficulties in obtaining the evidence. This was mainly due to the fact that the person who was supposed to be the applicant’s father was a Belgian national and that he had refused to co-operate with the court. 7. On 22 September 1995 the Constitutional Court found, in proceedings under Article 130 (3) of the Constitution, that the Košice II District Court had violated the applicant’s constitutional right to have the case examined without undue delays. 8. On 16 January 1996 the Košice II District Court dismissed the action. On 6 May 1997 the Košice Regional Court quashed the judgment and sent the case back to the first instance court. 9. On 16 June 2000 the Košice II District Court delivered a new judgment by which it dismissed the action. On 17 July 2000 the applicant appealed. 10. On 16 August 2002 the Košice Regional Court overturned the first instance judgment in that it found that the defendant was the applicant’s father. As to the remainder of the action including the maintenance and the court fee, the Regional Court quashed the District Court’s judgment and sent the case back to the latter. 11. On 5 November 2002 the defendant filed an appeal on points of law.
The proceedings are pending. | [
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8. The applicant is a Spanish national who was born in 1941 and lives in Albacete. He is a law graduate and is employed by the University of Castilla-La Mancha (UCLM). 9. By a decision of 11 July 1996, the rector of UCLM ordered that the applicant be dismissed as director of administrative and service personnel (gerente) of the university campus at Albacete, a post to which he had been appointed by the rector himself in 1985. On 30 July 1996 the applicant applied to the Higher Court of Justice of Castilla-La Mancha for special judicial review of that decision, relying on the right to judicial protection of his fundamental rights in accordance with the Protection of Fundamental Human Rights Act (Law no. 62/1978 of 26 December 1978). By a decision of 18 November 1996, the court dismissed the application as unfounded. 10. In parallel, on 17 September 1996, the applicant had lodged an ordinary application for judicial review of the 11 July 1996 decision with the Higher Court of Justice of Castilla-La Mancha. The case was referred to the First Section of the court, whose President was J.B.L. During the hearing of the application, the Section, presided over by J.B.L., issued several orders. 11. On 14 May 1998 the applicant lodged an application with the Administrative Division of the Higher Court of Justice. Explaining that he had discovered that Judge J.B.L. was associate professor of law at UCLM and was receiving emoluments in that capacity, he applied for his removal in accordance with sections 219 and 223(1) of the Judicature Act (Ley Orgánica del Poder Judicial – “the LOPJ”) and requested the court to take evidence on the point in accordance with section 225(4) of the LOPJ. By a decision of 21 May 1998, the plenary Administrative Division of the Higher Court of Justice rejected the application for the judge’s removal for the following reasons:
“Section 223(1) of the LOPJ lays down the condition that the removal must be applied for as soon as the grounds for removal are known. If the grounds are known prior to the dispute, the application for removal must be lodged at the start of the proceedings, failing which the application will be inadmissible.
It is this last legal effect which applies in the present case, namely the inadmissibility of the application for removal of the judge of this Division, Mr J.B.L., since he has been for several years, and in any event had been long before the disputed decisions were taken, associate professor at the University of Castilla-La Mancha (which is essentially the ground for his removal). This fact cannot have escaped the attention of someone who was, until July 1996, the manager of the university campus at Albacete .
Moreover, given that the application was drafted, in [the applicant’s] own words, ‘as soon as he became aware of the ground [for removal]”, he should have adduced evidence to that effect, namely that he had become aware only very recently and not prior to the dispute that J.B.L. was associate professor at the University of Castilla-La Mancha. However he provided no such evidence.
Accordingly, an application for removal should have been lodged as soon as the applicant had been advised of the composition of the Division whose President was the person being challenged. As that was not done, the application is inadmissible.” 12. By a judgment on the merits of 10 May 1999, the First Section of the Administrative Division of the Higher Court of Justice, composed of three judges and presided over by Judge J.B.L., dismissed his application for judicial review and ruled that the decision of UCLM of 11 July 1996 to dismiss the applicant as manager of the university campus was lawful. 13. Relying in particular on Article 24 § 1 of the Constitution (right to a fair trial), the applicant lodged an amparo appeal with the Constitutional Court. The applicant pleaded the right to have his case heard by an independent and impartial tribunal and complained of the rejection of his application for the removal of Judge J.B.L., which he had sought as soon as he had become aware of the professional relations between that judge and UCLM. He submitted that he had not known the judge in his capacity as professor, and that he had had no reason to come across him in the course of his administrative duties at the university. In that connection, he observed that questions concerning the university teaching staff were the responsibility of the rector and were dealt with centrally at Ciudad Real, whereas he worked in Albacete. As manager of the Albacete campus, his duties were limited to the university’s administrative and service personnel. He concluded that to require him to prove a negative, namely that he had not previously known J.B.L., was to ask him to “prove the impossible”. Accordingly, the applicant considered that the Higher Court of Justice had not given him a fair hearing. 14. By a decision of 10 April 2000, the Constitutional Court dismissed the amparo appeal as ill-founded for the following reasons:
“... Article 24 § 1 of the Spanish Constitution is infringed only if the court concerned reaches an unreasonable, manifestly wrong or arbitrary conclusion concerning a legal ground of inadmissibility ... In the present case, such defects cannot be inferred from the fact that [the applicant] was presumed to have known that one of the judges was an associate professor.
Ordinary procedural defects do not in themselves infringe Article 24 § 1 of the Spanish Constitution. That Article is breached only when the procedural irregularity is decisive for the rights of the defence ... It is then for the applicant to prove the significance of the alleged irregularity for the final decision ... In this case, the alleged irregularities concerning the taking of evidence cannot serve as a basis for challenging the reasons adopted by the Division [of the Higher Court of Justice] in arriving at its judgment.” | [
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7. The applicant was born in 1930 and lives in Marl-Haim, Germany. 8. In 1974 the applicant, after having worked for ten years as a labourer in Germany, bought land in the Değirmen hamlet of the Çayağzı village, in the Yayladere district of Bingöl and built a house on it. The applicant and his family went to the house each summer. The land was cultivated by Ş.T., who gave half of the annual revenue from the land to the applicant. Ş.T. also lived in the house when the applicant was not there. 9. In 1994 security forces carried out operations in the region. Gunfire discharged by security forces from helicopters destroyed the roof of the applicant’s house. Thereafter, security forces forcibly evicted Ş.T. from the applicant’s house. 10. On 8 December 1995 an inhabitant of the hamlet, H.D., informed a relative of the applicant living in İstanbul, S.G., that the applicant’s house had been burned down. S.G. subsequently informed the applicant about the destruction of his property. 11. On 14 December 1995 the applicant went to the hamlet and saw that his house and its contents had been burned. He took photographs and made a video recording of his house. He was informed by the mayor of the village (muhtar), H.T., and by other villagers that there had been clashes between security forces and terrorists near the hamlet and that two days after the clashes his house had been burned down because it had been used by terrorists. 12. On 10 January 1996 the applicant filed a petition with the Public Prosecutor’s office in Istanbul for submission to the Public Prosecutor’s office in Bingöl. He requested an investigation into the destruction of his house and its contents by security forces. 13. The applicant did not pursue any further domestic remedy. 14. Subsequent to the receipt of the applicant’s petition concerning his request for an investigation, the Bingöl Chief Public Prosecutor declined jurisdiction ratione loci and sent the applicant’s petition to the Yayladere Public Prosecutor’s office. 15. On 31 December 1996 the Yayladere Chief Public Prosecutor issued a decision of non‑jurisdiction stating that the impugned incident should be investigated by the Chief Public Prosecutor at the Diyarbakır State Security Court since it concerned a terrorist act. The Public Prosecutor noted that the applicant’s house had been destroyed during clashes between terrorists and security forces. He noted however that the perpetrators could not be identified. 16. The local authorities carried out an investigation into the destruction of the applicant’s house. In this respect, on 25 February 1998 gendarmes from the Yayladere Central Gendarme Command went to the applicant’s hamlet to carry out a survey of the scene of the incident. After having viewed the state of the applicant’s house, the gendarmes drew up a scene of incident report. They noted that the roof of the applicant’s house had been destroyed, wooden parts of the house had been burned, the walls were in good condition and the house was empty. They further noted that the house had been destroyed during clashes between the security forces and terrorists in the region. 17. On 25 February 1998 the Yayladere Central Gendarme Station Commander took statements from the inhabitants of the applicant’s village. The mayor of the village, (muhtar), Mr Mehmet Dilek, stated that in 1994 security forces had carried out an operation against terrorists in the region and that there had been clashes between security forces and terrorists one kilometre away from the village over a 24-hour period. He stated that he was sure that the house had been destroyed as a result of these clashes but he did not know by whom. Mr Şükrü Taylan stated that the house had been destroyed as a result of the clashes between security forces and terrorists. Mr Yusuf Yıldız stated that the applicant’s house had been destroyed because terrorists used to stay there. Mr Ali Gür stated that the house had been burned down on the ground that there might have been terrorists inside. 18. The investigation into the destruction of the applicant’s house is pending before the Chief Public Prosecutor’s office at the Diyarbakır State Security Court since the perpetrators are still unknown. | [
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4. The applicant was born in in 1947 and lives in Bratislava. 5. On 3 May 1991 the applicant filed an action for damages with the Bratislava I District Court. She claimed compensation for a work-related accident. 6. On 9 September 1993 the District Court dismissed the action. The applicant appealed on 1 October 1993. 7. On 31 August 1994 the Bratislava City Court quashed the first instance judgment. 8. On 31 October 1996 the applicant extended her action in that she also claimed the protection of her right to protection of her reputation. 9. On 31 July 1998 the Bratislava I District Court ordered an expert opinion to be submitted. 10. The applicant filed a petition pursuant to Article 130 (3) of the Constitution in which she complained about the length of the proceedings. On 22 September 1999 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s constitutional right to have her case examined without undue delays. 11. On 18 December 2000 the Bratislava I District Court ordered an expert opinion. Subsequently the applicant unsuccessfully challenged the District Court judge. 12. On 12 August 2002 the District Court decided on the expert’s fees. The applicant appealed against this decision. On 6 September 2002 she submitted to the court her comments on the expert’s conclusions. 13. On 4 March 2003 the District Court invited the parties to submit further information. The proceedings are pending. | [
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4. On 29 November 1996 the applicant filed for divorce from his wife and for custody of their children before the Košice I District Court. 5. On 29 April 1998 the Košice I District Court requested the applicant to submit a certificate about his and his wife’s residence. The applicant complied with the request on 15 May 1998. On 9 November 1998 the applicant’s wife asked the court to proceed with the case as the situation in their family affected the children born out of the wedlock. 6. On 25 November 1999 the Košice I District Court transferred the case to the Košice II District Court for reasons of jurisdiction. On 14 February 2000 the Košice Regional Court found that the case fell within the jurisdiction of the Košice I District Court. 7. On 5 September 2000 the Košice I District Court appointed a guardian to the applicant’s children in the context of the divorce proceedings. On 26 September 2000 both the applicant and his wife stated their position on the subject-matter of the case in reply to the court’s request. On 4 October 2000 the District Court asked the applicant’s employer to submit information about the applicant’s income. 8. On 2 November 2000 the Košice I District Court heard the parties and delivered a judgment by which it granted a divorce to the applicant and his wife. The court further granted the custody of the children to the mother, decided on the maintenance and on the applicant’s right to have contact with the children. The judgment became final on 31 January 2001. | [
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4. The applicant was born in 1972 and lives in Pesaro (Italy). 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. By a writ filed on 11 March 1993 C.R., a bank, brought proceedings against Mrs Tierce before the Commissario della legge (“the Commissario”) seeking termination of her lease and an eviction order against her for non-payment of her rent. On 26 March 1993 the Commissario authorised the commencement of the action against the applicant and summoned the parties to appear on 7 April 1993. As the applicant did not attend the hearing the case was listed for 7 May 1993. On 29 April 1993 the applicant deposited with the registry a bankbook (libretto al portatore), mentioning a sum to be handed over to the claimant bank if it were to accept a settlement out of court. 7. On 13 May 1993 C.R. claimed the sum in question, the Commissario ordered notification of the claim to the applicant and gave her five days to file her submissions. On 3 June 1993, as Mrs Tierce had not filed any observations, C.R. repeated its claim of 13 May. 8. On 17 June 1993 C.R. declared that it did not wish to withdraw its action, even if it obtained the sum concerned. On the following day the Commissario gave the applicant five days to file submissions. 9. At a hearing on 9 September 1993 the applicant confirmed her offer of 29 April 1993 and asked for the money to be attached to guarantee payment. C.R. objected, seeking the applicant’s eviction. On the same day the Commissario scheduled a hearing for 7 October 1993, which was later put back by one week because he had another engagement, for the attempt to reach a friendly settlement prescribed by law in eviction cases (section 21 of Law no. 26 of 20 February 1991); when that attempt came to nothing the Commissario opened the first of two time-limited stages for adducing evidence, each waivable by the claimant (primo termine probatorio – see paragraph 22 below). On 30 October 1993 he opened the second such stage (secondo termine probatorio). 10. On 9 December 1993 the applicant asked the Commissario to open the first of two further time-limited stages waivable by the defendant (primo termine reprobatorio), and he did so on 10 December 1993. On 23 December 1993 the applicant asked for evidence to be taken from a witness. The Commissario listed a hearing for that purpose to take place on 17 February 1994, but on that date the witness failed to appear. On 3 March 1994 the applicant filed documents, and on 21 March 1994 the Commissario asked her to inform him whether she wished to maintain her request for witness evidence to be taken. On 25 March 1994, at the applicant’s request, the Commissario listed a new hearing for that purpose to take place on 28 April 1994, later adjourned to 20 May 1994 on account of another engagement. As the witness failed to appear, the Commissario fixed a new hearing for 14 June 1994, that being the last opportunity to hear the witness. On 8 September 1994 C.R. asked the Commissario to declare that the witness could no longer be called, having failed to appear within the time allowed; on 13 September 1994 the Commissario allowed that application. 11. On 22 September 1994 Mrs Tierce requested the opening of the next time-limited stage (secondo termine reprobatorio); the Commissario complied with that request on the following day. On 6 October 1994 Mrs Tierce asked for evidence to be taken from another witness, who was examined on 1 December 1994.
On 15 December 1994 the applicant asked the Commissario to open the fifth and last time-limited stage for the completion of the evidence-taking (termine di controprova), which he did the next day. On 3 February 1995 the Commissario observed that the time allowed for the last stage of the presentation of evidence had expired. On 16 February 1995 the applicant asked for the return of a cheque that she had previously deposited with the registry. On the next day the Commissario gave C.R. five days to make its final submissions. On 2 March 1995 C.R. asked Mrs Tierce to vacate the premises, as her lease had expired on 31 December 1994. On 13 March 1995 the Commissario gave the applicant five days to submit her observations. 12. On 9 March 1995 C.R. had again applied to the Commissario for an eviction order against the applicant, as it needed the building in order to carry on its own business there. On the next day the Commissario scheduled a hearing for 6 April 1995 for the attempt to reach a friendly settlement prescribed by Law no. 26 of 20 February 1991.
On 24 March 1995, at the request of C.R., with no objection on the applicant’s part, the two cases were joined on account of the connection between them as regards their subject matter and the identity of the parties. 13. On 6 April 1995 Mrs Tierce declared that she was prepared to vacate the premises in exchange for compensation. The case was adjourned for thirty days to give the parties time to reach an agreement on that point.
On 22 June 1995 the applicant requested the opening of the statutory five-week period for the submission of objections (termine statutario per rispondere ed eccepire), and the Commissario allowed that application on the following day. On 5 October 1995, as the applicant had not raised any objection, C.R. requested the opening of the first termine probatorio. On the following day the Commissario observed that the time allowed for the applicant to lodge objections had not yet expired. On 19 October 1995 the applicant asserted that her lease had not yet run out.
On 20 October 1995 the Commissario gave C.R. five days to submit observations. On 26 October C.R. contested Mrs Tierce’s assertion. On the next day the Commissario gave Mrs Tierce five days to submit observations. 14. On 8 February 1996 C.R. again sought an order for the applicant’s eviction, and the Commissario gave her five days to submit observations. On 22 February 1996 the applicant confirmed what she had asserted on 19 October 1995, and on the following day the Commissario gave C.R. five days to submit observations.
On 7 March 1996 C.R. requested the opening of the second termine probatorio (thus waiving the right to the time allowed for the first stage). On the following day the Commissario gave Mrs Tierce five days to submit observations and opened the second stage. On 14 March 1996 C.R. filed documents. On 21 March 1996 the applicant submitted that C.R.’s assertions were ill-founded in fact and in law, and on the following day the Commissario gave C.R. five days to submit observations.
On 11 April 1996 C.R. requested the opening of the first termine reprobatorio, and on 15 April 1996 the Commissario decided to close the proceedings on account of the parties’ inaction. On 18 April 1996 C.R. again requested the opening of the first termine reprobatorio. The next day the Commissario rescinded his decision of 15 April 1996 as having been taken on the basis of a mistake as to the facts and opened the first termine reprobatorio. On 25 April 1996 C.R. asked for a date to be fixed for oral argument and the examination of one witness; on the following day the Commissario arranged a hearing for that purpose, to be held on 20 June 1996. On 15 May 1996 the witness indicated that he could not attend the hearing on the date chosen. On 13 September 1996, at C.R.’s request, the Commissario decided to hold a new hearing on 26 September 1996, on which date evidence was taken from the witness. On 3 October 1996 C.R. asked for a date to be fixed for the presentation of oral argument; on the following day the Commissario set the case down for hearing on 17 October 1996.
On that day C.R. withdrew its request for an adversarial hearing and requested the opening of the second termine reprobatorio. On the following day the Commissario gave the applicant five days to submit observations. On 7 November 1996 C.R. again asked the Commissario to open the second termine reprobatorio, and he did so on 8 November 1996. On 28 November 1996 C.R. asked for evidence to be taken from a witness; on the following day the Commissario arranged a hearing for that purpose to be held on 13 February 1997, at which the witness gave evidence. 15. On 27 February 1997 Mrs Tierce requested the opening of the termine di controprova, and the Commissario allowed that application on the following day. On 13 March 1997 the applicant filed documents and asked for an expert report and the convening of an arbitration board. On the following day the Commissario gave C.R. five days to file observations. On 20 March 1997 C.R. requested Mrs Tierce’s immediate eviction and asked for a witness to be called; on the following day the Commissario arranged a hearing for that purpose to be held on 8 May 1997, when a witness gave evidence. On 15 May 1997 C.R. asserted that it had not received instructions from the judge about the appointment of an expert, and the applicant repeated her request for the convening of an arbitration board and confirmed the appointment of her expert. On 26 May 1997 the Commissario asked C.R. to appoint its expert and on 19 June 1997 the applicant asked the Commissario to repeat his request of 26 May 1997. On 30 June 1997 the Commissario gave C.R. five days to file observations. On 18 September 1997 the applicant again asked for an arbitration board to be convened and an expert appointed. On the following day the Commissario asked C.R. to specify how much the applicant owed it. On 23 October 1997 the applicant repeated her request of 18 September 1997. On the following day the Commissario observed that C.R. had not expressed an opinion on either the convening of an arbitration board or the expert report. On 6 November 1997 C.R. indicated the amount of the applicant’s debt and on the following day the Commissario gave her five days to file observations. 16. On 11 December 1997, noting that all five time-limited stages for the presentation of evidence had expired, C.R. requested the opening of the time-limited stage for the filing of final submissions (termine ad allegare); the Commissario allowed that application on 15 December 1997.
On 19 February and 12 March 1998 C.R. and Mrs Tierce filed their final submissions.
The Commissario reserved judgment (irrotulazione) at a hearing on 26 March 1998. 17. In a judgment of 28 August 1998 the Commissario ordered the applicant to vacate the premises with immediate effect. 18. On 22 October 1998 Mrs Tierce appealed to the judge of civil appeals (Giudice delle appellazioni civili) and on 30 October 1998 she summoned C.R. On 3 November 1998 the Commissario authorised the summons and a hearing was set down for 10 December 1998 so that the parties’ lawyers could enter an appearance.
On 3 December 1998, as the first-instance judgment was enforceable with immediate effect, C.R. asked for the applicant to be evicted, which was done on 22 February 1999.
On 29 April 1999 the applicant asked the Commissario to open the first termine probatorio, which he did the next day. On 20 May 1999 she asked for C.R. to be served with the decision to open the previous stage.
On 23 September 1999 C.R. asked the Commissario to open the second termine probatorio, which he did on 27 September 1999. On 7 October 1999 C.R. asked for that decision to be served on the applicant.
On 18 November 1999 the applicant requested the opening of the first termine reprobatorio; the Commissario allowed her application on the following day. On 25 November 1999 the applicant asked for that decision to be served on C.R. On 13 January 2000 she filed documents. 19. On 27 January 2000 C.R. asked the Commissario to open the second termine reprobatorio, and he did so on 2 February 2000. On 24 February 2000 C.R. asked for the sum recorded in the bankbook (deposited by the applicant on 29 April 1993) to be checked and the accrued interest added; this was done by the registrar on 8 March 2000.
On the following day C.R. requested the opening of the termine di controprova, and the Commissario complied in a decision of 13 March 2000. On 16 March 2000 C.R. asked for that decision to be rescinded, as the decision of 2 February 2000 had not yet been served. The Commissario allowed the above application on 17 March 2000. On 23 March 2000 C.R. again asked for the decision of 2 February 2000 to be served. On 6 April 2000, C.R. indicated that it wished to have evidence taken from two witnesses and the Commissario set down a hearing for that purpose on 25 May 2000, but the witnesses failed to appear. On 29 June 2000, at C.R.’s request, the Commissario arranged for a new and final hearing to be held on 12 October 2000 for the witnesses to be examined; only one witness gave evidence on that occasion.
On 19 October 2000 Mrs Tierce asked the Commissario to fix the termine di controprova, which he did on 20 October. On 6 November 2000 the Commissario corrected a clerical error. On 23 November 2000 the applicant deposited a cheque with the registry.
On 18 January 2001 she asked for the opening of the time allowed for the filing of final submissions; the Commissario complied on the following day. On 29 March and 5 April 2001 the parties filed their final submissions. 20. On 6 April 2001 the Commissario set down for 10 May 2001 the hearing for the appearance of the parties and transmission of the file to the judge of civil appeals for judgment to be reserved.
In a judgment of 24 October 2001, published on 21 December 2001, the judge of civil appeals upheld the applicant’s appeal in part by reducing the arrears of rent to be paid. | [
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4. The applicant was born in 1944 and lives in Bratislava. 5. On 5 January 1994 the applicant challenged the lawfulness of his dismissal from a job before the Bratislava III District Court. 6. On 2 September 1999 the Constitutional Court found that the Bratislava III District Court had violated the applicant’s constitutional right to have his case examined without undue delays. In its finding the Constitutional Court noted, in particular, that the case had to be adjourned on twelve occasions as the chamber dealing with it was incomplete. 7. On 6 October 1999 the District Court declared the applicant’s dismissal unlawful. The judgment was served on the applicant on 14 March 2000 and the defendant company appealed on 17 March 2000. 8. On 4 October 2000 the Bratislava Regional Court quashed the first instance judgment to the extent that it concerned the compensation awarded to the applicant and the decision on court fee. The Regional Court upheld the remainder of the District Court’s judgment. 9. In the proceedings concerning the outstanding part of the applicant’s claims the Bratislava III District Court scheduled hearings for 23 November 2001 and 15 February 2002. The proceedings are pending. | [
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9. The applicant is living in Mittersill/Austria, where he is a farmer and owner of the Rossweg alp. According to a regulatory deed (Regulierungsurkunde) of 1868 concerning the alp, the owner of this alp is entitled to obtain timber from the Austrian Federal Forestry Administration to the extent necessary for the maintenance of the alp's cabins. 10. On 30 October 1987 the applicant requested the Office of the Salzburg Regional Government as the agricultural authority of first instance (Landesregierung als Agrarbehörde erster Instanz - “the Agricultural Authority”) to grant him the necessary quantity of timber for the maintenance of existing and the edification of new alpine cabins. 11. On 14 July 1988 the Agricultural Authority held a hearing and on 20 June 1989 a forestry expert delivered his opinion. 12. On 4 September 1989 the Agricultural Authority gave its decision, ordering the Federal Forestry Administration to provide the applicant with a certain quantity of timber within four weeks. 13. On 25 September 1989 the applicant appealed against this decision. 14. On 2 February 1990 the Salzburg Regional Land Reform Board (Landesagrarsenat - “the Regional Board”) dismissed the appeal and ordered the Federal Forestry Administration to provide the applicant with a smaller quantity of timber within four weeks. 15. On 27 June 1990 the applicant filed a complaint against this decision with the Administrative Court (Verwaltungsgerichtshof). 16. On 12 October 1993 the Administrative Court quashed the Regional Board's decision. 17. On 28 January 1994 the Regional Board granted the applicant's appeal of 25 September 1989 and referred the case back to the Agricultural Authority. 18. By a decision of 6 June 1994 the Agricultural Authority opened supplementary proceedings with a view to amending the regulatory deed of 1868 concerning the alp. On 25 August 1994 and 25 January 1995 hearings were held. On 12 December 1994 an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins. 19. On 6 February 1995 the Agricultural Authority issued a decision, by which it amended the regulatory deed of 1868 and determined the provision of timber for the owner of the Rossweg alp. The applicant appealed against this decision, claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins. 20. On 23 June 1995 the Regional Board partly granted the appeal and amended the Agricultural Authority's decision. 21. On 17 November 1995 the Regional Board granted the applicant's request for leave to appeal out of time (Wiedereinsetzung in den vorigen Stand) to the Supreme Land Reform Board (Oberster Agrarsenat - “the Supreme Board”) against the Regional Board's decision. 22. On 6 March 1996 the Supreme Board, after having held a hearing, dismissed the applicant's further appeal. It found that the legal instrument of 1868 only conferred a right to obtain timber for the maintenance of cabins, not a right to a fixed annual quantity of timber. 23. On 30 May 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). 24. On 24 September 1996 the Constitutional Court refused to deal with the complaint for lack of sufficient prospects of success and remitted the case to the Administrative Court. 25. On 11 December 1997 the Administrative Court dismissed the applicant's complaint. It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp's cabins, but not to obtain a fixed annual quantity. The decision was served on the applicant's counsel on 28 January 1998. | [
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9. The applicant, a Turkish citizen born in 1964, is currently serving a life sentence in Diyarbakır Prison. 10. On 19 June 1992 the applicant was arrested by the security forces in the village of Çayçatı, in the district of Varto (province of Muş). A handwritten and partly illegible report drawn up on the same day includes the following passage:
“Following an investigation, Mr Güneş, [suspected of having] taken part in an armed clash with gendarmes in the district of Varto on 14 June 1992, ... was arrested, unarmed, while hiding in the house of one N.Ö., in the course of a gendarmerie operation on 19 June 1992.” 11. On the same day, the gendarmes who had arrested the applicant drew up a further report in which they identified him as one of the terrorists who had taken part in an armed attack on 14 June 1992 in which one soldier had died and two others had been injured.
... 13. According to a report drawn up on 29 June 1992, a confrontation was held between the applicant and the gendarmes who had taken part in the armed clash of 14 June 1992. Three of them identified the applicant. The report was not signed by him. 14. On an unspecified date the applicant was transferred to the Muş provincial gendarmerie headquarters for questioning. However, the circumstances in which he was questioned cannot be established from the evidence adduced by the parties.
... 18. On the same day the applicant was brought before the Police Court, composed of a single judge, who ordered his detention pending trial. Before the judge, the applicant denied all the accusations against him. He stated that he had not taken part in any armed attack. He also denied that a confrontation had been held on 29 June 1992 (see paragraph 13 above) and asserted that on the day of his arrest he had been shown to a soldier, who had been unable to identify him. Lastly, he stated that he had been ill-treated while being detained at the Muş provincial gendarmerie headquarters.
... 42. In an indictment preferred on 20 July 1992 the public prosecutor at the Diyarbakır National Security Court instituted proceedings against the applicant, charging him with separatism and with undermining the integrity of the State, capital offences under Article 125 of the Criminal Code. He accused him of having taken part in two armed attacks on 12 October 1991 and 14 June 1992 and, in particular, of having fired, together with other terrorists, at the security forces, causing the death of one soldier and injuring two others. 43. In connection with the criminal proceedings against the applicant, a Mr Erdal was also accused of having taken part in the armed attack of 14 June 1992. He was therefore tried in the same proceedings. 44. At a hearing on 28 August 1992 the National Security Court read out statements by the gendarmes (Z.K., Z.Ko. and T.E.) who had identified the applicant during the investigation (see paragraph 11 above). The applicant disputed the statements and denied all the charges. The court decided to summon the three gendarmes as witnesses. 45. At a hearing on 2 October 1992 counsel for the applicant contested the record of the confrontation of 19 June 1992 (see paragraph 13 above) and argued that the statements by the gendarmes alleged to have identified his client were contradictory. 46. At a hearing on 30 October 1992 the court, as requested by the public prosecutor, decided, on “road-safety grounds”, to have evidence from the three gendarmes taken on commission. Accordingly, two photographs of the applicant, one from the side and the other from the front, were sent together with the reports concerning the case to the court delegated to examine the witnesses. The applicant challenged the court's decision and asked it to hold a confrontation itself. 47. At a hearing on 15 January 1993 Mr Erdal, the applicant's co-defendant, gave evidence, as requested by counsel for the applicant. He stated that he had never seen the applicant. He also maintained that the applicant had not been present during the armed attack on 14 June 1992, in which he himself had taken part. 48. At a hearing on 12 February 1993 counsel for the applicant again criticised the method by which the court had decided to take evidence from the witnesses in question, arguing that it could not be considered compatible with the rules of procedure. 49. At a hearing on 19 March 1993 it was noted that the depositions of the witnesses who had been examined on commission, with the exception of that of Z.K., had been added to the case file. 50. At a hearing on 18 June 1993 the applicant pleaded not guilty. He again challenged the manner in which the depositions of the witnesses in question had been taken and argued that they could not be admitted in evidence against him, since he had been identified from photographs and hence without a confrontation. He also rejected the statements he had given under duress at the investigation stage. 51. At a hearing on 3 September 1993 it was noted that the deposition of Z.K., likewise taken on commission, had been added to the case file. Counsel for the applicant contested it, arguing that, like the other depositions, it could not be admitted as evidence for the prosecution.
At the same hearing the public prosecutor made submissions in which he sought the applicant's acquittal. He stated, in particular:
“Criminal proceedings were instituted against the defendant Hulki Güneş, who was suspected of having taken part in an armed clash with soldiers on 14 June 1992... The witnesses Z.K. and Z.Ko. stated that they had seen the defendant with his face uncovered during the clash, whereas the other members of the organisation had their faces covered. [However, firstly,] it was not mentioned in the incident report of 14 June 1992 that a member of the organisation had been observed with his face uncovered. [Secondly,] in the statements they gave after the incident, the soldiers did not say that they had seen one of the members of the organisation with his face uncovered. [In addition,] Mr Güneş was not arrested during the incident in question [and] Mr Erdal, the co-defendant, a 'confessor' [former member of an illegal organisation turned informer] who admitted having taken part in the shooting, stated that Mr Güneş had not been present at the time and that he did not know him. [Lastly,] there are also contradictions, indeed a blatant discrepancy, regarding the names of those who took part in the shooting, between Mr Güneş's statements [obtained while he was in police custody] and those of his co-defendant. [Accordingly], it should be concluded that there is insufficient evidence for Mr Güneş to be found guilty...” 52. At hearings on 1 October and 5 and 26 November 1993 the public prosecutor reiterated his submissions of 3 September and sought the release of the applicant, but his recommendations were not followed. 53. At a hearing on 24 December 1993 statements by the applicant's brother, who had been arrested for being a member of the PKK, and by his sister were added to the case file. Both attested that the applicant was a member of the organisation in question. The applicant was given additional time to file his observations on this new evidence against him. 54. At a hearing on 30 December 1993 the public prosecutor made further submissions in which he sought the applicant's conviction under Article 125 of the Criminal Code. 55. At a hearing on 11 March 1994 the applicant submitted his defence. Referring to the pleadings he had lodged during the trial and to the public prosecutor's initial submissions, he asked to be acquitted. 56. In a judgment of 11 March 1994 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty as charged and sentenced him to death, commuted to life imprisonment, under Article 125 of the Criminal Code. In support of its decision, the court took into account the depositions of the gendarmes concerned, the statement which the applicant had given to the security forces and the reports in the investigation file. It held, inter alia:
“With regard to the defendant Hulki Güneş:
In the record of his statement, the defendant asserted that in 1989, while staying illegally in France, he had begun to support the organisation's ideas. On returning to Turkey, he had contacted the organisation. He stated that, on its behalf, he had
(i) set up a committee, collected funds and disseminated propaganda;
(ii) taken part on 12 October 1991 in an armed attack in the district of Varto; and
(iii) taken part on 14 June 1992 in an ambush against a patrol from the security forces, in which a member of the patrol had been killed and two others injured.
He stated that after that incident he had gone to hide in the village of Çayçatı, where he was arrested by the security forces. He also stated that his code name as a member of the organisation had been Ceymiş.
Before the public prosecutor and the Police Court he denied all the offences of which he was accused. He stated that he had gone to the village of Çayçatı to do building work in N.Ö's house. He maintained that he had hidden under the bed when the soldiers had arrived purely because he did not have any identity papers. He denied all the charges against him.
In his defence submissions before the court he again denied the charges.
In his submissions the public prosecutor sought the defendant's conviction under Article 125 of the Criminal Code.
It appears from the reports and documents in the file that on 14 June 1992, at about 12.30 p.m., members of the security forces attached to the Omcali gendarmerie command were attacked by a group of armed terrorists while on patrol in the province of Muş, in the district of Varto, near Omcali, on Sarimsa Hill. In the course of the shooting, the gendarme M. Aslan was killed and the gendarmes Ş. Demircan and H. Akkurtlu were injured. After additional security forces had arrived as reinforcements, the clash went on until 8 p.m. Statements by the gendarmes T.E., Z.K. and Z.Ko., who were involved in the skirmish, were added to the case file.
The members of the security forces present at the scene after the shooting were informed that there was a terrorist hiding in N.Ö.'s house in the village of Çayçatı, which is part of the district of Varto. After taking the necessary security measures, the security forces went to the house and rang the doorbell. About 15 to 20 minutes later, after several rings, someone opened the door. With the owner's agreement, they were able to go in. Inside, they asked N.Ö. if a Hulki Güneş was staying with him. N.Ö. replied 'no'. All the family were together in the same room. They were asked if anyone else was in the house. They replied 'no'. However, the soldiers discovered a person in pyjamas hiding under a bed. When the person was shown to the members of the household, they said that they did not know him or what he was doing there. It was established that the person was Hulki Güneş and that he was related to the members of the household. On his arrest, T.E., Z.K. and Z.Ko., members of the security forces who had been present at the shooting on 14 June 1992, immediately recognised him as having been involved in the shooting. That much is apparent from the relevant report.
A confrontation was held between these members of the security forces and the defendant. All three members of the security forces recognised the defendant as having taken part in the shooting.
The court sent a photograph of the defendant for identification by the gendarmes claiming to recognise him.
In the deposition taken from him on commission, the witness Z.K. said that he could not be certain whether the person in the photograph had been among those taking part in the shooting, as the terrorists who had attacked them had had their faces covered. However, he stated that the defendant had been one of the terrorists who had organised the ambush and that his face had not been covered. During the shooting there had been a distance of only 15-20 metres between them, so he had had a clear view of the person's face. He accordingly maintained that the person in the photograph was the same person he had seen during the shooting. He added that he had recognised him as soon as he had arrested him. He attested that the arrest report was consistent with his statements and that the defendant was the person who had taken part in the shooting.
The statement by T.E. was also taken on commission. He stated that the person in the photograph was the same person he had seen at the scene of the shooting and that the reports read out to him were consistent with what had happened.
The witness Z.Ko., who also gave evidence on commission, confirmed the content of the reports. He stated that on 14 June 1992 there had been an outbreak of shooting with an armed terrorist group. He added that the shooting had carried on for a long time, with the result that at nightfall he and his colleagues had hidden in the bushes to escape the terrorists' shots. As the terrorists had left the scene, he had had a clear view of one of them 15-20 metres away. He added that shortly after the defendant's arrest, he had been able to identify him as the person he had seen. He maintained that that person was the one in the photograph.
It is apparent from the arrest report that the defendant was immediately identified by the witnesses. They identified him without hesitation on being shown his photograph. Furthermore, the defendant's sister stated that he was a member of the PKK terrorist organisation. It follows from these witness statements and declarations that the confessions made by the defendant in the statement he gave reflect the truth.
The arrest report appears consistent with the evidence given by the defendant in his statement as to the circumstances of his arrest. That factual element tends to corroborate the confessions made by the defendant in his initial statement.
Although the indictment states that the defendant took part in the shooting on 12 October 1991 in the capital of the district of Varto, his confessions on the subject are not corroborated by any documents in the file or any other related item of evidence. It has therefore not been established that the defendant took part in that operation.
...
On 20 July 1992 the public prosecutor at the National Security Court instituted proceedings against the defendant. He accused him of having begun to support the organisation's ideas in 1989, while staying illegally in France, and, on returning to Turkey, having participated in the organisation's activities, then taken part in an armed attack in the capital of the district of Varto on 12 October 1991 and, lastly, having taken part in an ambush against a patrol from the security forces on 14 June 1992, in which a member of the patrol had been killed and two others injured...”
Having regard to the foregoing and to the fact that the public prosecutor had sought the application of Article 125 of the Criminal Code, the National Security Court found it established that the defendant, a member of the PKK, had taken part in the shooting on 14 June 1992 but not in the shooting on 12 October 1991. Holding that the armed attack of 14 June 1992 had occurred in the context of the PKK's terrorist activities aimed at removing part of the national territory from the State's control, the court held that the defendant should be convicted under Article 125 of the Criminal Code. 58. Following a hearing on 10 November 1994 the Court of Cassation upheld the judgment appealed against. Its judgment was delivered on 16 November 1994 with neither the applicant nor his counsel present.
On 8 December 1994 the full text of the Court of Cassation's judgment was added to the case file kept at the registry of the National Security Court and thus made available to the parties. | [
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8. The applicant was born in 1944 and lives in Moosburg, Germany. 9. On 18 June 1990 the applicant filed a civil action against I.R. for disturbance of peaceful possession of leased premises before the Rijeka Municipal Court (Općinski sud u Rijeci). He claimed that I.R. disturbed the peaceful possession of his business premises - a tailor's workshop in Rijeka - in that she had forcefully evicted the applicant and his son from the premises. 10. On 29 September 1994 I.R. died and the proceedings were continued against her legal successors. 11. In the ensuing proceedings, several hearings were held and several adjourned until 5 November 1997 when the Convention entered into force in respect of Croatia. 12. The hearing scheduled for 5 October 1999 was adjourned on the applicant counsel's request. 13. At the hearing on 22 November 1999 the proceedings were concluded and the court rejected the applicant's request. The applicant did not appeal against that decision and it became final on 10 February 2000. | [
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6. The applicants were born in 1964, 1968 and 1968 respectively and live in Adana. 7. According to intelligence gathered by Adana Police Headquarters, members of an illegal organisation called Ekim (October) were going to distribute posters and put up banners in protest against redundancies and price rises. The police felt that these activities were intended to provoke the public and informed its anti-terrorist department. This department planned an operation to apprehend members of Ekim and also to seize organisational documents. According to official documents in the file, the operation started at 12.30 a.m. on 12 May 1996. 8. According to the applicants, however, they were all arrested at 11.00 p.m. on 11 May 1996. Ülkü Doğan, the first applicant, was arrested by members of the anti-terrorist department when he was on his way home, Celal Yalçıtas, the second applicant, was arrested at a house in Adana and the third applicant, Servet Çolak, was arrested at a friend's house. A large number of documents, containing articles protesting against issues such as torture in police custody, disappearances and unequal division of income, were also seized during these arrests. 9. According to the official reports of the apprehension and seizure, drawn up and signed by the police officers who conducted this operation, these arrests were effected on 12 May 1996. Also according to these reports, neither the second nor the third applicant put up any resistance at their arrests. 10. On 13 May 1996, the chief of the anti-terrorist department of Adana police asked the Adana public prosecutor to authorise the applicants' detention in police custody for a period of 15 days. On the same day, the prosecutor, pursuant to Article 9 of Law No. 2845 and Article 30 of Law No. 3842, acceded to this request. 11. The applicants submit that in the course of their police custody they were subjected to various types of torture. In particular, they were hung from their arms, given electric shocks to various parts of their bodies, kept naked under or on big slabs of ice, beaten up, hosed with cold water, insulted, prevented from sleeping and threatened with death. 12. On 23 May 1996 the applicants were taken to the Adana branch of the Forensic Medicine Institute, where they were examined and medical reports were drawn up. In the medical report relating to the first applicant, cuts which had formed scabs were observed on both wrists and on the right ankle. The medical report drawn up in relation to the second applicant states that there were cuts on both arms as well as a cut below the left knee all of which had healed. The third applicant's medical report states that there was a cut below the right knee and two cuts in the vertebral region, all of which had healed. 13. On the same day, 23 May 1996, the applicants were brought before the Adana public prosecutor, who sent them to the Fourth Chamber of the Criminal Court of Peace in Adana. Before the Justice of the Peace of that Chamber, the applicants denied the accusations against them and complained that they had made their statements under torture. They were detained on remand, under Article 104 of the Code of Criminal Procedure, on the grounds of the state of the evidence and the nature of the offence of which they stood accused, which could be classified as a serious crime. The applicants were not represented by a lawyer before the Justice of the Peace. 14. On 3 June 1996 the Chief Prosecutor of the National Security Court in Konya prepared an indictment submitting that the applicants and five other persons were guilty of membership of the armed terrorist organisation Ekim pursuant to Article 168 § 2 of the Turkish Criminal Code and also Article 5 of Law No. 3713. 15. During the proceedings before the Konya National Security Court the applicants informed the Court that they had been tortured in custody. 16. On 26 November 1996 the National Security Court in Konya held that the applicants had aided Ekim by making propaganda and it sentenced them to ten months' imprisonment and a fine of 41,666,666 Turkish Liras. Taking into account the time they had already spent in detention, they were immediately released. 17. The applicants appealed against this judgment. The Ninth Chamber of the Criminal Division of the Court of Cassation upheld the decision of the Konya National Security Court on 4 March 1999. 18. The public prosecutor has not taken any action with regard to the applicants' claims brought forward in the proceedings before the Justice of the Peace, that they were tortured during custody. | [
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10. The applicant was born in 1934 and lived in Wareham. 11. By a lease dated 27 November 1969 the applicant was granted a building lease of industrial land by Dorchester Borough Council (“Dorchester”) for twenty-two years from 29 September 1969. The lease required him to erect up to six buildings at his own expense for light industrial use and included an option to renew for a further twenty-one years in the following terms (at sub-clause 5(1)):
“If the Lessee shall be desirous of taking a lease of the said demised premises for a further term of 21 years from the expiration of the terms hereby granted and shall, not more than 12 months nor less than six months before the expiration of the said terms, give the Corporation notice in writing of his desire and if he shall have paid the rents hereby reserved and shall have reasonably performed and observed the covenants, provisions and stipulations herein contained (...), then the Corporation will let the demised premises to the Lessee for the said further term of 21 years (...)”. 12. The applicant states that he had requested a 43 year term in the course of negotiations but that this request was refused by Dorchester. The applicant was represented by solicitors when negotiating and entering into the lease. 13. In accordance with sub-clause 5(1) of the lease the applicant gave notice to exercise the option on 4 October 1990. At this date, he was paying a ground rent of 1,045 pounds sterling (GBP) per annum. He had paid GBP 20,020 in total rent over the 22 year period and his income from his sub-leases of the six units was GBP 58,599 for the year ending March 1991. 14. By this time West Dorset County Council (“West Dorset”) had become the statutory successor to Dorchester. On 2 November 1990, West Dorset acknowledged the applicant’s notice and indicated that it would be instructing surveyors to negotiate a new rent for the first seven years of the term. Negotiations commenced between the parties as to renewal of the lease and a draft lease was drawn up on the basis of an increased ground rent, which the applicant states was agreed at GBP 14,000 per annum. The applicant signed his copy of the draft and meanwhile commenced discussions with various of his tenants concerning increases of rent under their subleases. In August 1991 however, West Dorset notified the applicant that it considered that the option could not be exercised. In the subsequent proceedings, it took three points: that the applicant was in breach of the repairing covenants in the 1969 lease; that the option was not capable of being exercised by the applicant because by granting five subleases for terms greater than the term of the 1969 lease he had assigned his interest in the units under sublease; and that the option was ultra vires Dorchester. 15. On 26 September 1991 the applicant applied to the Chancery Division of the High Court for a declaration that he was entitled to the grant of the further term and for an order of specific performance to enforce his right. His application was dismissed on 25 April 1996. The judge rejected West Dorset’s claim as to breach of covenant but found in favour of West Dorset on their two other objections. He noted that the ultra vires point had not been raised until relatively late in the proceedings, namely, in an affidavit lodged by West Dorset dated 5 October 1995. 16. On 10 November 1997 the Court of Appeal upheld the judge’s decision, on the ground that the grant of the option had been beyond Dorchester’s powers. 17. In the course of the proceedings before the Court of Appeal, the applicant sought to rely upon two separate statutory provisions, each of which he said gave Dorchester power to grant the option. The first was section 172(3) of the Local Government Act 1933 (“the 1933 Act”). This provides (as relevant):
“Where the council of a borough desire to dispose of corporate land otherwise than as aforesaid, they may, with the consent of the Minister, dispose of the land either by way of sale, exchange, mortgage, charge, demise, lease or otherwise, in such manner and on such terms and subject to such conditions ... as the Minister may approve.” 18. The term “corporate land” is defined in section 305 of the 1933 Act as:
“... [L]and belonging to, or held in trust for, or to be acquired by or held in trust for, a municipal corporation otherwise than for an express statutory purpose” 19. Following an examination of the history surrounding Dorchester’s appropriation of the land in question, the Court of Appeal concluded that it had been held by Dorchester for an “express statutory purpose” at the time of the lease and was thus not “corporate land”, with the result that section 172(3) did not apply. 20. The second statutory provision upon which the applicant sought to rely was section 164 of the 1933 Act, which provides:
“A local authority may let any land which they may possess –
(a) with the consent of the Minister, for any term;
(b) without the consent of the Minister, for a term not exceeding seven years.” 21. The crucial question on this provision was whether the power to let included the grant of an option to renew. The Court of Appeal had answered this in the negative, albeit obiter dicta, in the case of Trustees of the Chippenham Golf Club v. North Wiltshire District Council (1991) 64 P & CR 527. A deputy High Court judge reached the same conclusion when it was directly in issue before him in 1993. The Court of Appeal in the applicant’s case referred to both of these decisions in finding that a grant of an option to renew was not the same as the exercise of a power to let. As a result, section 164 did not apply so as to give Dorchester the power to grant the option. 22. Lord Justice Peter Gibson, in summing up his judgment in the Court of Appeal, observed:
“... I would dismiss this appeal. I do so with little satisfaction. It seems to me unjust that when public bodies misconstrue their own powers to enter into commercial transactions with unsuspecting members of the public, those bodies should be allowed to take advantage of their own errors to escape from the unlawful bargains which they have made. For a local authority to assert the illegality of its own action is an unattractive stance for it to adopt. It is the more striking when, as in this case, the transaction in question is as mundane as a building lease; and the local authority, by taking the point against the member of the public with whom it or its predecessor contracted, thereby robs that member of the public of part of the consideration for entering into the lease. ...” 23. On 7 May 1998 the House of Lords dismissed the applicant’s petition for leave to appeal. | [
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4. The applicant was born in 1937 and lives in Trnava. 5. On 15 October 1993 the applicant claimed compensation from a limited liability company on the ground that the latter had failed to comply with a contract. On 12 November 1993 the Zvolen District court delivered a payment order by which it allowed the applicant’s claim. On 29 November 1993 the defendant company challenged the payment order. On 3 December 1993 the applicant challenged the court’s conclusion concerning the costs of the proceedings. 6. On 8 and 31 March 1994 the applicant and the defendant respectively submitted comments on the other party’s observations. 7. On 12 May 1994 the applicant extended his action in that he increased the sum claimed. On 8 August 1994 the District Court admitted that the action be extended. As the applicant had failed to pay additional court fees concerning the extended part of his action, the District Court discontinued the proceedings in respect of the additional claims on 27 September 1994. Subsequently the judge left the judiciary and his cases had to be distributed among the other District Court judges. 8. Following the applicant’s complaint, a hearing was scheduled for 23 June 1995. On that date the case was adjourned as the defendant failed to appear. On 3 and 6 July 1995 the applicant and the defendant submitted further information. 9. On 24 July 1995 the court heard the defendant. The applicant excused his absence and the case was adjourned. In the course of August 1995 the parties informed the District Court of their position regarding the possibility of settling the case. 10. On 21 December 1995 the applicant requested that a judgment be delivered. A hearing was scheduled for 4 March 1996. On 1 February 1996 the applicant informed the court that he would not be able to attend and proposed that he be heard, if need be, by the Trnava District Court. 11. On 4 March 1996 the Zvolen District Court allowed the applicant’s action. On 3 April 1996 the judge dealing with the case asked for an extension of the time-limit for drafting the judgment with reasons. The judgment was sent to the parties on 10 May 1996. 12. On 28 May 1996 the defendant appealed. On 10 June 1996 the applicant submitted his comments and the case file was transferred to the Banská Bystrica Regional Court on 19 June 1996. 13. On 9 August 1996, on 27 December 1996 and on 14 May 1997 the applicant requested that the case be proceeded with. On 11 June 1997 the applicant was informed that the judges had a heavy workload. 14. On 9 September 1998 the Banská Bystrica Regional Court quashed the Zvolen District Court’s judgment of 4 March 1996 and instructed the first instance court to take further evidence. The case-file was returned to the District Court on 9 November 1999. 15. On 23 November 1998 the applicant informed the District Court, at the latter’s request, which further evidence he proposed to be taken. The applicant also increased the sum claimed by him. The District Court accepted this amendment of the action on 3 May 1999. On 5 May 1999 the District Court decided on court fees in respect of the applicant’s additional claim. The applicant appealed against this decision on 19 May 1999. At the same time he requested that he should be exempted from the obligation to pay court fees as he was indigent. 16. On 24 May 1999 the District Court adjourned the case as the parties failed to appear. On 2 June 1999 the applicant was requested to substantiate his request for waiver of court fees. 17. The next hearing was scheduled for 20 October 1999. On 15 October 1999 the applicant excused his absence and asked the court to proceed with the case in his absence. 18. On 20 October 1999 the case was adjourned until 6 December 1999 as neither the applicant nor the defendant appeared. On the latter date the case was again adjourned. The applicant was requested to complement his request for waiver of court fees. He replied on 17 December and subsequently the court exempted him from the obligation to pay the court fees. 19. On 9 March 2000 the applicant urged the District Court to proceed with the case. On 27 March 2000 the applicant informed the court that he would not attend the hearing scheduled for 5 April 2000 and asked the District Court to proceed with the case in his absence. On 3 April 2000 the defendant’s lawyer informed the District Court that he no longer represented the defendant. The hearing scheduled for 5 April 2000 was adjourned. 20. On 10 May 2000 the Zvolen District Court dismissed the applicant’s action. It held that the contract in question was void as it neither specified the sum to be paid for the services offered by the applicant, nor did it stipulate that the parties had agreed to its conclusion without specifying the price, as required by Article 536 of the Commercial Code. The judgment with reason was typed on 17 July 2000 after the President of the District Court had allowed an extension of the statutory time-limit set for this purpose. 21. On 7 August 2000 the applicant appealed. On 27 September 2000 the President of the District Court assigned the case to a different judge as the judge originally dealing with it had been temporarily transferred to a different court. On 17 October 2000 the applicant was requested to pay the fees in respect of the appellate proceedings. On 20 October 2000 the applicant appealed. The case-file was transferred to the Banská Bystrica Regional Court on 24 November 2000. 22. On 19 December 2000 the Banská Bystrica Regional Court upheld the first instance judgment of 10 May 2000. By a separate decision delivered on 21 December 2000 it quashed the District Court’s decision on the court fees in respect of the appellate proceedings. 23. On 20 February 2001 the president of the Zvolen District Court admitted that the overall length of the proceedings had been partly due to inactivity of the court and that the applicant’s complaint in that respect was justified. | [
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9. The applicant was born in 1947 and lives in Spånga. 10. In 1935 the applicant’s mother and her four siblings jointly inherited two estates – Marum 1:6 and Marum 1:8 – from their father. The ownership of the estates, consisting of several islands in the archipelago of Stockholm, was over the years partly transferred to other members of the family. Disagreements arose between the family members. Some of them wished to divide the property (klyvning) and thus dissolve the joint ownership, but the applicant’s mother opposed this idea. 11. On the land managed by the applicant’s mother – which formed part of Marum 1:8 – the mother owned a number of houses. Two of the houses were used by the applicant’s two sisters. A third house situated on the property was considered too small for the applicant’s needs and it was therefore decided to enlarge it. The applicant applied for a building permit to the Österåker Building Committee (byggnadsnämnden). On 9 September 1987, finding that the enlargement could not be approved as the house in question was situated too close to the shore, the committee nevertheless granted a permit for the building of a new house further away from the shore. The new house was built in 1988. 12. On 4 August 1989 the applicant’s mother died, leaving four children, namely the applicant, her brother and her two sisters. However, no distribution of the mother’s estate was made before 1991. By a partial division on 29 June 1991, the new house was transferred to the applicant. 13. On 21 December 1989 practically all the other joint owners of the two estates brought proceedings against the applicant in the District Court (tingsrätten) of Södra Roslag, requesting that she be ordered to remove the new house on Marum 1:8 as it had been built without their consent, contrary to the requirements of the Joint Ownership Act (Lagen om samäganderätt, 1904:48 – “the 1904 Act”). The applicant disputed this and argued, inter alia, that it was her mother who had built the house and that accordingly it belonged to her mother’s estate. Thus, she was not the proper defendant in the case. 14. By a judgment of 10 May 1990 (“the removal judgment”) the District Court declared that the applicant was to remove the house, or risk having it demolished at her expense. The court stated, inter alia, that it was the applicant who owned the house and that she had built it without the necessary consent of all the other joint owners. 15. In 1991 one of the joint owners applied for the sale of Marum 1:6 and Marum 1:8 at a public auction. On 22 May 1992 the District Court decided to stay those proceedings. 16. On 22 February 1994 the District Court’s removal judgment was upheld on appeal by the Svea Court of Appeal (Svea hovrätt). 17. The applicant appealed to the Supreme Court (Högsta domstolen). She later requested, inter alia, that no further action be taken on the case pending the outcome of division proceedings which she had begun in October 1990. In these proceedings, the applicant claimed that the joint ownership of the two estates should be dissolved and individual plots be assigned to the family members. Following several decisions taken by the Real Estate Formation Authority (Fastighetsbildningsmyndigheten – “the REFA”) and the courts, the case had to be referred back by the Court of Appeal to the REFA for re-examination as the latter had made procedural errors. Subsequently, by a decision of 1 December 1995, the REFA allowed the creation of four individual plots on Marum 1:8 but rejected the applicant’s request for the creation of an individual plot around the new house on account of the Court of Appeal’s ruling that that house be removed. The applicant appealed against the REFA’s decision to the Real Estate Court (fastighetsdomstolen) in Stockholm. As an alternative ground for staying the proceedings before the Supreme Court, the applicant pleaded that, in March 1995, she had requested that the District Court give a declaratory judgment on the question of ownership of the new house. 18. By a decision of 4 March 1996 the Supreme Court rejected the applicant’s request to have the removal proceedings stayed and refused her leave to appeal against the Court of Appeal’s ruling. 19. Following the Supreme Court’s decision, several family members requested that the Enforcement Office (kronofogdemyndigheten – “the Office”) enforce the removal judgment. On 7 March 1996 the Office ordered the applicant to remove the house before 3 April 1996 or risk having it demolished by the Office at her own expense. By a later decision the time-limit was extended until 19 April 1996. 20. On 14 March 1996, at the Real Estate Court’s request, the Central Office of the National Land Survey (Lantmäteriverket – “the Central Office”) gave its opinion in the division proceedings. It considered that the removal judgment did not prevent the creation of an individual plot around the house in issue. On the contrary, this could preserve the house and reduce the risk of adverse consequences for the applicant. Thus, the Central Office recommended that the applicant be assigned an individual plot. 21. However, on 3 April 1996 the Enforcement Office refused the applicant a further postponement of the enforcement of the removal judgment. On 15 May 1996 the District Court upheld the Enforcement Office’s decisions and rejected the applicant’s request for a stay of the enforcement. Subsequently, the Enforcement Office, on 20 May 1996, decided that the house was to be demolished by a construction firm on 3 June 1996. 22. The applicant appealed to the Court of Appeal, requesting an immediate stay of the demolition order. She submitted that enforcement of the removal judgment should be stayed until the division proceedings or, in the alternative, until the ownership proceedings had been concluded. She also claimed that she had not been given the opportunity to remove the house herself in accordance with the District Court’s judgment of 10 May 1990. She stated that she had started to dismantle the house but was not able to complete the work before 3 June 1996. Furthermore, the applicant requested a three-week respite in order to substantiate her appeal. 23. By a decision of 31 May 1996 the Court of Appeal ordered the applicant to complete her appeal by 12 midnight on 5 June 1996. On the same day, that is on 31 May, the Court of Appeal received a letter from the applicant in which she requested an immediate stay of the demolition order. She submitted, inter alia, that enforcement of the removal judgment should be stayed until the division proceedings had been concluded or, in the alternative, until the Real Estate Court had decided the question. She also requested a three-week respite to substantiate her appeal. 24. The appellate court’s order for the completion of the appeal – which was sent to the applicant’s address at the time in Spånga – was allegedly not received by the applicant until the evening of 5 June, as she had been at the site of the house in issue. On the morning of 6 June she sent a fax to the appellate court, asking for a ten-day respite for the completion of her appeal. 25. However, at a session held on 3 June 1996 the Court of Appeal had already examined the case and, by a decision delivered the following day, refused the applicant leave to appeal against the District Court’s decision of 15 May 1996. Thus, no further stay of the enforcement proceedings was granted. It appears from the court files that the applicant called the Court of Appeal on 6 June and was told that the case had already been examined and that regard had been had to the contents of her letter of 31 May. On 5 July 1996 the Supreme Court refused leave to appeal against the appellate court’s decision. 26. The house in issue was therefore demolished by a construction firm. The applicant had claimed that her appeal against the District Court’s decision of 15 May 1996 prevented the enforcement of the removal judgment. However, this claim was rejected by the Enforcement Office on 31 May 1996, referring to Chapter 3, section 21, of the Enforcement Code (Utsökningsbalken). The demolition of the house began on 3 June 1996 and was concluded ten days later. On 25 June 1996 the Enforcement Office declared that the house had been demolished and that accordingly the removal judgment had been duly enforced. However, this decision was appealed against by the other joint owners on the ground that the building material had not been removed from the property. On 13 September 1996 the District Court, finding in favour of the appellants, quashed the Enforcement Office’s decision that the enforcement had been finalised and referred the matter back to the Office. Leave to appeal against the District Court’s decision was refused by the Court of Appeal and the Supreme Court on 30 September and 25 October 1996 respectively. On 27 September 1996 the Enforcement Office ordered the applicant to remove the building material from the property before 29 October 1996. 27. On 6 August 1996 the Enforcement Office ordered the applicant to pay the enforcement costs of 114,796 kronor. The applicant appealed and applied for legal aid in the matter. By a decision of 9 September 1996 the District Court rejected the applicant’s application for legal aid on the ground that she did not have a legitimate interest in having the case heard as the enforcement had been concluded. The applicant’s further appeal was rejected by the Court of Appeal on 13 December 1996. On 28 April 1997 the Supreme Court refused leave to appeal. 28. On 22 November 1996 the Real Estate Court gave judgment in the division proceedings. It decided that Marum 1:8 should be divided into six individual plots and one common plot. The applicant was assigned a plot where the now demolished house had been situated. In this respect, the Real Estate Court thus agreed with the opinion given by the Central Office of the National Land Survey on 14 March 1996. The Real Estate Court’s judgment was upheld on appeal by the Court of Appeal on 2 November 1998. On 14 April 2000 the Supreme Court refused leave to appeal. 29. By a judgment of 26 November 1996 the District Court decided another removal case which had been brought by the applicant and her sister in 1994. Apparently in response to the removal proceedings brought against the applicant, they had claimed that several other joint owners of Marum 1:6 and 1:8 should remove buildings they had erected on the estates. However, the District Court rejected the claims, finding that the buildings had been erected before 1991 – when the applicant and her sister, through the partial division of their mother’s estate, had become joint owners of the two properties – and that the other joint owners at the time had expressly or impliedly consented to the various building projects. Furthermore, considering that the claimants did not have a legitimate interest in having their cases heard, the court also decided that further litigation in this respect should not be paid for through public legal aid. Thus, with effect from the date of the judgment, the legal aid previously awarded was withdrawn. The applicant and her sister appealed against the judgment, submitting, inter alia, that the District Court’s decision on legal aid should be quashed. However, on 3 October 1997 the Court of Appeal upheld the legal-aid decision. On 16 January 1998 the Supreme Court refused leave to appeal. Stating that they were unable to plead their case properly without legal aid, the applicant and her sister, by a letter to the Court of Appeal of 1 November 1999, withdrew most of their claims in the removal case. 30. By a declaratory judgment of 10 July 1997 in proceedings concerning the ownership of the house in issue, the District Court agreed with the applicant’s argument, submitted to the court in March 1995, that the house had been erected on her mother’s behalf and thus formed part of the latter’s estate. Accordingly, at the time of the District Court’s removal judgment of 10 May 1990, the house had not belonged to the applicant. Thus, in this respect, the court came to a different conclusion from the one reached in the removal judgment. Following an appeal, the declaratory judgment was upheld by the Court of Appeal on 26 February 1998. No further appeal was lodged and the appellate court’s judgment consequently acquired legal force. 31. By decisions of 4 February 1997 and 29 February 2000, the Building Committee granted the applicant building permits for the reconstruction of the demolished house and the construction of two smaller outbuildings. | [
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6. The applicant was born in 1928 and lives in Namysłów, Poland. 7. In 1979 the applicant’s sister and her husband filed with the Kluczbork District Court (sąd rejonowy) an action in which they requested that the co-ownership of the house shared by them with the applicant be dissolved. They sought to be granted the sole ownership of the house on payment of a compensation to the applicant. 8. In 1981 the District Court dismissed the action. 9. In 1982 the Opole Regional Court (sąd wojewódzki) quashed that judgment and remitted the case for re-examination. 10. In 1983, having re-examined the case, the District Court granted the plaintiffs’ claim. In 1984 the Regional Court amended that judgment. 11. Subsequently, the General Prosecutor filed an extraordinary appeal against the judgments of both courts. 12. In 1985 the Supreme Court quashed them and remitted the case for re-examination. 13. In 1988 the District Court after the re-examination again granted the plaintiffs’ claim. 14. In October 1988 the Regional Court dismissed the applicant’s appeal against that judgment. The First President of the Supreme Court filed an extraordinary appeal. 15. In 1991 the Supreme Court again quashed the judgments of both courts and remitted the case for re-examination. 16. On 27 October 1997 the Kluczbork District Court gave judgment. It dissolved the co-ownership and awarded the ownership of separate parts of the house to the parties. The applicant and the plaintiffs appealed. 17. On 5 August 1998 the Opole Regional Court dismissed both appeals. The applicant filed a cassation appeal with the Supreme Court. 18. On 12 June 2001 the Supreme Court refused to entertain that appeal. | [
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9. The applicant was born in 1946 and is currently detained in HM Prison Kingston, Portsmouth. 10. On 22 March 1989 at Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment. 11. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham. 12. Runham and Gray were arrested in January 1988 and the applicant was arrested in February 1988. He was charged with murder jointly with Runham, Gray and two other men who had allegedly provided money to pay for the killing of Christopher Nugent. 13. The Crown’s case was that the applicant had paid Runham and Gray 20,000 pounds sterling (GBP) to kill Nugent, because Nugent knew too much about the applicant’s involvement in mortgage fraud. 14. The applicant’s defence was that he had hired Runham and Gray to break one of Nugent’s limbs in order to put him out of action for a few weeks while the applicant effected his own transfer to another branch of the firm. He alleged that he had paid Runham and Gray GBP 7,500 for the assault, but that after Gray had killed Nugent, Gray blackmailed the applicant into paying him more money. The applicant claimed that he would have had no motive for killing Nugent, since the latter was himself involved in the fraudulent activities being perpetrated through the business. The applicant submitted, however, that his representatives felt unable to pursue this line of argument satisfactorily because of lack of evidence of Nugent’s dishonesty; the jury were asked to accept the applicant’s word alone on this issue. 15. Runham and Gray pleaded guilty to murder. Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy. The two alleged co-conspirators, who according to the prosecution had, together with the applicant, paid for Nugent to be murdered, were acquitted. 16. Following his conviction, the applicant complained to the Police Complaints Authority (PCA) about Suffolk Constabulary’s refusal to disclose material evidence. After investigation, in a letter of 30 October 1992 to the applicant, the PCA reported that it could not support any allegation of perversion of the course of justice but had found various instances of negligence. 17. According to the applicant, in July 1993 he was informed that there were seventeen boxes of hitherto undisclosed material. The applicant contended that some of this evidence would have supported his defence that he had had no need to murder Nugent to ensure his silence since it showed that the latter was also deeply involved in the fraudulent activities perpetrated through the business. The applicant claimed that some of the material from the seventeen boxes was disclosed to him in the week prior to his appeal hearing, while other material from the boxes remained undisclosed. 18. According to the Government, the evidence which was not disclosed at first instance, but which was disclosed prior to the applicant’s appeal, fell into two categories. The first type of evidence derived from the Holmes computer system used by the police officers conducting the murder inquiry to store and cross-reference all the information obtained in the course of the inquiry. The computer data included documents known as “messages” which recorded information when first received by an officer, and documents known as “actions” which recorded the steps to be taken by an officer in response to a message and the result of any such further inquiry. At the time of the trial, the prosecution took the view that the computer system was being used as a tool for the police investigation and that the data contained in it was not subject to disclosure under the Attorney-General’s Guidelines (see “Relevant domestic law and practice” below), although any witness statements or exhibits obtained in response to a message or action should be, and were, disclosed as “unused material”. 19. The Government submitted that, following the applicant’s conviction, and in the light of developments in the common-law duty of disclosure (see below), the prosecution reviewed their position and decided that the data stored on the computer system did amount to disclosable material. Prior to the applicant’s appeal, therefore, the prosecution disclosed the messages and actions held by the police. Some 4,000 actions had been disclosed, one of which was referred to by the applicant in support of his appeal. 20. In the Government’s submission, the second category of evidence undisclosed at first instance related to the parallel investigation into mortgage fraud by a number of people, including the applicant and Nugent. At an early stage, the prosecution decided to keep the murder and fraud investigations separate and that there was no duty under the Attorney-General’s Guidelines to disclose the material gathered in the fraud inquiry to the defendant charged with murder. Following the applicant’s conviction and the development of the common law, the prosecution reconsidered their decision and, prior to the applicant’s appeal, made full disclosure of the material obtained in the fraud inquiry. 21. Prior to the hearing before the Court of Appeal, the prosecution served on the applicant a schedule indicating what material was still being withheld following the review of the prosecution’s duty of disclosure. In respect of some of the items in the schedule, the reason given for non-disclosure was “legal and professional privilege”; in respect of other items it was “public interest immunity”; and in respect of certain other items, for example document no. 580, no reason was given to explain the decision to include the document in the list of withheld evidence. Counsel for the defence was in contact with the prosecution concerning possible further disclosure. A letter dated 23 March 1994 from the Branch Crown Prosecutor indicated that a number of documents, including document no. 580, were on the list of withheld material. 22. Document no. 580 subsequently came into the applicant’s possession. It is a letter, dated 12 April 1988, from a firm of solicitors acting for Gray addressed to Detective Chief Inspector Baldry of the Suffolk Constabulary, and reads as follows:
“...
Further to our several discussions concerning Mr Gray, you will of course be aware that I did visit him in Leicester Prison on 26 March.
He has requested a transfer either to Brixton Prison or Wormwood Scrubs if this is at all possible and I should be grateful if you would let me know whether there is any possibility of Mr Gray receiving a transfer.
Secondly I now understand that apparently Mr Gray understands that you would be willing to support him receiving a straight term of life imprisonment and an application for early parole.
Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters.
Thirdly I understand that Mr Gray’s wife is to be produced at fortnightly intervals to Leicester Prison for visits and perhaps again you could clarify the position.
I look forward to hearing from you ...” 23. The hearing of the applicant’s appeal took place on 28 and 29 March 1994. Non-disclosure of evidence at trial, particularly evidence discovered in the parallel mortgage fraud investigation, was one of the applicant’s grounds of appeal to the Court of Appeal, but no mention was made of document no. 580 or of the other documents which continued to be withheld by the prosecution. The applicant also relied on the fact that the trial judge had omitted to direct the jury that a person may lie for reasons unconnected with his guilt in relation to the offence with which he is charged (a “Lucas” direction), and that the fact that, during interviews with the police the applicant had denied all knowledge of any plot to harm Nugent, did not mean that he had been involved in his murder. 24. Dismissing his appeal on 29 March 1994, the Court of Appeal remarked that in the course of his summing-up the judge had not suggested that the applicant’s lies could amount to corroboration of the other evidence, and had reminded the jury of defence counsel’s submissions in relation to the applicant’s lies. Although the summing-up should have included a “Lucas” direction, no miscarriage of justice had occurred. On the question of non-disclosure the court observed:
“... As the trial was conducted, Nugent’s dishonesty was made perfectly plain to the jury. The appellant himself had admitted being dishonest, and had said in the course of his evidence that Nugent was party to all the dishonest resorts to which he had lent himself in making false representations and forging documents. Accordingly it was fully before the jury that Mr Nugent was dishonest. ...
We have been taken through various parts of the evidence ... and we are quite satisfied that ... Mr Nugent’s involvement in the deep dishonesty of this business was fully canvassed before the jury. ... Accordingly, although ... the stricter regime of prosecution disclosure which now prevails might well have required further disclosure than was actually made, we do not consider that this ground is one which has any substance in regard to the outcome of the case. ...”
The Court of Appeal concluded:
“There was overwhelming evidence that the appellant initiated a plot against the victim Nugent. There was likewise strong evidence that he had indicated what he wanted was to get rid of Nugent. The money actually paid, and indeed even the sum mentioned by the appellant was in our view out of proportion to a plot simply to ‘duff up’ the victim. Moreover, on analysis such a plot made no sense. Each member of this Court is of the clear opinion, despite the blemishes in an otherwise impeccable summing-up, that no miscarriage of justice has actually occurred. ...” 25. The applicant believed that an inducement was promised to Gray by the prosecuting authorities in exchange for his testifying against him. In addition to the above letter, which the applicant claimed supported his hypothesis, he referred to the fact that his tariff of imprisonment (that is, the period to be served before review by the Parole Board) under the life sentence had been set at twenty-five years, but was subsequently reduced to twenty-one years. Runham, who had provided the murder weapon and drove the get-away car, received a tariff of sixteen years. Gray, who had shot and killed Nugent, had his tariff set at eleven years and was released in 1999. In April 1999 the Home Office wrote to Runham, refusing to reduce his tariff:
“The Secretary of State holds Stephen Gray to be as culpable as you are, even though he fired the murder weapon and you did not. When the tariff was set for Stephen Gray, the then Secretary of State took into account that he had, like you, pleaded guilty to murder but had in addition been ‘... a very important witness for the prosecution’. ...” 26. The Government denied that any inducement was offered to Gray. Under cover of a letter dated 27 June 2001, they sent to the Court undated statements from three senior officers in the Suffolk Constabulary who had been involved in the murder investigation.
(a) The statement of Chief Superintendent Green reads:
“I have seen a copy of the letter dated 12 April 1988 from Ennions, Solicitors ... to my then colleague, Mr Baldry. I can confirm that this letter is genuine and was recorded as Document D-580 during the course of the investigation into the murder of Mr Nugent.
I have no recollection of this letter after thirteen years and I cannot remember ever discussing it with Mr Baldry. At no time was I ever involved in any debate regarding the issue of Mr Gray receiving a ‘straight term of life imprisonment and an application for early parole’.
I can confirm that I did not offer Mr Gray any form of inducement to give evidence against Mr Dowsett or other defendants. To the best of my recollection, Gray’s motives were that he was simply attempting to ‘clear his plate’ by telling the whole truth about the circumstances of the case, whilst at the same time ensuring that Dowsett and others faced their share of the responsibility for the crime. I do recall that Mr Gray hoped that his honesty at the trial would one day assist him to make a successful application for parole.
I would like to emphasise that I spent six days with Mr Gray at Winchester Prison during the preparation of his statement and can categorically state that all one hundred and one pages of the document were written with Mr Gray’s consent and without any form of inducement.”
(b) The statement of Detective Chief Inspector Baldry, now retired, reads:
“This murder happened in 1987 and is not now fresh in my memory.
However I do remember clearly that I gave no indications to interviewing officers or to Gray himself that in return for his support we would aid an application for a shorter sentence. Gray was a very dangerous murderer who I considered enjoyed carrying out his ‘murder’ contract with Mr Dowsett. This matter was so grave that no such undertaking could honestly have been given.
I do remember that Gray at one time was on hunger strike in prison and that we helped his wife to visit him in prison. How this help was given I do not remember - it may have been in the role of carrying messages to and from.”
(c) Detective Chief Inspector Abrahams, also now retired, said in his statement:
“Concerning the letter Document D-580 I can categorically state that I did not personally offer Gray any inducement or arrangement relating to his sentence. Nor did I have any discussions with his legal representative with regard to his sentence. Equally, I did not instruct any of my subordinate officers including the interview team questioning Gray so to do.
As far as I am aware Gray throughout his detention and taped questioning was dealt with in accord with the Police and Criminal Evidence Act.
I have been unaware of this letter until now but I am sure Chief Inspector Mike Baldry (now retired) may be of some help to you.
I would point out that Gray was arrested at Mildenhall Police Station on 23 January 1988 after which the murder management team was joined by Mr Christopher Yule of the Crown Prosecution Service, Ipswich, who advised on all legal aspects of the case. He was later joined by Mr (now Sir and a High Court Judge) David Penry-Davey QC and Mr David Lamming of Counsel, who advised on what was to be a complex case not only involving murder, conspiracy to murder but also large scale mortgage fraud.
I am not aware that any representations were made to the trial judge concerning any reduction in Gray’s tariff. If this had been the case then the application would have had to be made through prosecuting counsel.
For your information I include below some relevant dates and points that you may already be aware of in relation to the murder, but I think they are worth emphasising:
15 December 1987: Christopher Nugent found murdered at his business premises that he owned with his partner Dowsett.
23 January 1988: Gray gave himself up at Mildenhall Police Station and admits the offence naming Dowsett, Runham and others as part of a murder conspiracy.
26 January 1988: Gary Runham arrested for the murder. He admits the offence naming Dowsett, Gray and others. Runham did the groundwork in planning Nugent’s murder and propositioned Gray at a later stage to do the actual killing.
1 February 1988: Dowsett and others arrested for the murder.
17 February 1988: I was withdrawn from the everyday management of the inquiry and returned to Force Headquarters. DCI Baldry took over this role.
December 1988: Gray and Runham appear at Crown Court, plead guilty to the murder and are sentenced to life imprisonment.
January 1989: Gray agrees to become a witness for the prosecution and Detective Inspector Green (now Chief Superintendent) obtains a witness statement.
30 January 1989: Trial of Dowsett and others commences. ...
Gray appeared as a prosecution witness. Runham did not. The jury unanimously found Dowsett guilty of murder and he was sentenced to life imprisonment.
Prosecution witness O’Dowd gave evidence to the fact that Dowsett admitted the murder to him and stated that Dowsett had said that ‘if Abrahams gets too close then he’ll get the same’ (or words to that effect).
16 December 1990 Dowsett made a formal complaint against me, other officers and Mr Yule [Crown Prosecution Service] that we perverted the course of justice in relation to his trial. The matter was investigated by an outside Police Force and was found by the DPP [Director of Public Prosecutions] and the PCA to be totally unsubstantiated.
Dowsett latter appealed against his conviction to the Court of Appeal but the Judges were unanimous in their judgment to disallow his application.
The above is to the best of my recollection. I do not know what tariffs were set by the Judge in his sentencing of all three defendants but I assume credit was given for Gray and Runham’s guilty pleas.” | [
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10. The applicant was born in 1967 and lives in Larnod (France). 11. On 4 September 1993 the applicant married S.C., a Portuguese national. The couple had a child, Julien, born in 1995. 12. By a judgment of 19 February 1998, the Besançon tribunal de grande instance granted the couple a divorce based on S.C.’s fault and ordered that the child reside at the applicant’s home, with the mother to have rights of access. Earlier, on 6 August 1996, the applicant had already been granted interim custody of Julien by a decision of the same court. 13. On 3 June 1997 S.C. abducted Julien from his paternal grandmother’s home and took him with her to Portugal. The applicant filed a complaint against S.C. for child abduction and assault. By a judgment of the Besançon tribunal de grande instance of 12 June 1998, S.C. was found guilty and sentenced in absentia to one year’s imprisonment. A warrant was issued for her arrest. 14. On 5 June 1997, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and on the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983, the applicant lodged an application for the child’s return with the French Ministry of Justice, which was the French “Central Authority” within the meaning of both instruments. On the same day, the French Central Authority requested the Institute for Social Reinsertion (“the IRS”), which forms part of the Portuguese Ministry of Justice and is the Portuguese Central Authority, to secure the child’s return pursuant to the provisions of the Franco-Portuguese convention. 15. On 18 June 1997 the IRS referred the application to the prosecution service of the Oeiras judicial district, where the applicant had indicated that S.C. was living. On 16 July 1997 the prosecution service applied to that court for the judicial return (entrega judicial) of the child pursuant to section 191 et seq. of the Minors Act (Organização Tutelar de Menores) and relying on the above-mentioned Franco-Portuguese cooperation convention. 16. On 17 July 1997 the judge of the Third Civil Division of the Oeiras District Court, to which the case had been allocated, summoned the child’s mother to appear before the court to make submissions concerning the prosecution’s application. Registered letters with acknowledgment of receipt were sent on 17 and 22 July 1997 to the address given by the applicant. However, both letters were returned to the court with the acknowledgments of receipt unsigned and unclaimed. On 27 August 1997 the judge, at the prosecution’s request, asked the police to find out where Julien’s mother was living. On 10 September and 6 October 1997 respectively the security police and the republican national guard informed the court that S.C. was not living at the stated address. 17. On 23 September 1997 the IRS asked the Oeiras District Court for information about the progress of the proceedings. The judge replied on 6 October 1997 to the effect that the child’s mother had not yet been found. 18. On 21 October 1997 the prosecution service asked the judge to write to the Lisbon social security office to request information concerning S.C.’s address and workplace. On 27 October 1997 the judge ordered the registry to send the letter in question, which was sent on 7 November 1997. On 27 November 1997 the social security office replied that it had no record of S.C. on file. 19. On 5 December 1997 the judge asked the IRS to find out S.C.’s current address. When it was reported that she might be in the Oporto area, the relevant social security office was contacted but indicated in a letter of 12 January 1998 that it had no record of her. 20. On 10 March 1998 the Second Civil Division sent the Third Civil Division a copy of the decision taken on that day as part of proceedings for the award of parental responsibility (see paragraph 47 below). On 26 March 1998 the judge sent a copy of the decision to the prosecution service, pointing out that the address from which S.C. had been summoned to appear in those proceedings was the same as that originally given by the applicant. 21. On 27 March 1998 the prosecution service asked the judge to seek information from Portugal Electricity and Portugal Telecom. On 13 and 20 May 1998 those companies replied that they did not have any contracts in S.C.’s name. 22. On 25 May 1998 the judge insisted that S.C. be summoned from the address in question. The registered letter sent for that purpose was however returned to sender. 23. On 2 July 1998 S.C. informed the court that she had applied to the Oeiras District Court (First Civil Division) for a transfer of parental responsibility for Julien. 24. On 6 July 1998 the judge ordered a court bailiff to compel S.C. to appear. The bailiff went to the address in question on 1 September 1998 to be told, by one of S.C.’s aunts, that S.C. did not live there. S.C.’s aunt also said that she did not know her niece’s current address. 25. On 2 September 1998 the judge asked the civil identification services of the Ministry of Justice for information about S.C.’s whereabouts. 26. By a letter of 2 September 1998 the IRS informed the court that they had asked the police to discover S.C.’s whereabouts. They observed that the police had since told them that the child’s mother had brought proceedings for a transfer of parental responsibility for Julien and pointed out that it was now possible to locate S.C. by the address she had given when she brought those proceedings. 27. By an order of 28 September 1998 the judge decided to ask the police again for S.C.’s current address. He also asked the registry to inform the First Civil Division of the existence of the application for the child’s return with a view to securing a stay of the proceedings for the transfer of parental responsibility then pending before that division. 28. On 11 November 1998 the applicant, through his representative, filed an ad litem power of attorney and a request to be kept informed of the steps in the proceedings. He also indicated that he had lodged a criminal complaint against S.C. By a decision of 16 November 1998, the judge rejected the applicant’s request on the ground that he was not a party to the proceedings. 29. On 27 November 1998 the security police indicated that the address in question was that of S.C.’s parents, who claimed that they did not know her current address. On 11 December 1998 the judge again decided to seek information from Portugal Electricity and Portugal Telecom and from the social security offices of Lisbon, Oporto, Coimbra and Faro. Between January and March 1999 all these organisations replied that they had no record of S.C. on their files. On 18 March 1999 the judge again asked the police for information about S.C.’s current address. On 9 April 1999 the security police indicated that the address was unknown. 30. On 19 April 1999 the IRS sent the court a copy of a police report according to which Julien might be found in a flat recently purchased by one of S.C.’s sisters in Algueirão (Sintra district). 31. Acting on information supplied by the IRS the applicant travelled to Portugal, where he claimed to have seen his son and a third party in the apartment in question on 25 April 1999. He informed the French consulate general in Lisbon, which asked the Portuguese Ministry of Justice to contact the police and the Oeiras District Court as a matter of urgency in order to secure the child’s return. On 26 April 1999 the IRS informed the court and asked it to take all necessary steps to secure the child’s return. On 27 April 1999 the judge ordered that Julien be immediately handed over to the IRS and issued a warrant to that effect. On 30 April 1999 the IRS advised the court that the republican national guard had been to the address in question on the previous day. However, the warrant did not give it the power to force entry into the flat and, since Julien’s mother had refused to open the door, it had not been possible to return the child. 32. The judge subsequently asked the republican national guard why the warrant had not been executed. On 1 June 1999 the national guard stated that officers had been to the address in question several times but no one had answered the door. 33. In the meantime, on 17 May 1999, S.C. applied for the proceedings to be discontinued, relying on Article 20 of the Franco-Portuguese cooperation convention and submitting that Julien was fully integrated in his new environment. 34. The judge delivered his judgment on 15 June 1999. First he found that S.C. should be regarded as having been properly summoned to appear because she had already intervened in the proceedings. He then rejected her application for a discontinuation and ruled that Julien should be handed over immediately to the IRS. Lastly, he ruled that if she failed to comply with the decision S.C. was liable to be prosecuted under section 191(4) of the Minors Act for non-compliance with a legal order (desobediência). 35. On 25 June 1999 S.C. appealed against that judgment to the Lisbon Court of Appeal (Tribunal da Relação). On 29 June 1999 the judge found the appeal admissible and ordered that it should be referred, without suspensive effect, to the Court of Appeal. The Court of Appeal dismissed the appeal by a ruling of 20 January 2000. 36. On 7 February 2000 S.C. appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça), but on 7 April 2000 her appeal was ruled to have lapsed (deserto) for want of pleadings having been filed. 37. On 29 May 2000 the Oeiras District Court judge asked a bailiff to warn S.C. that if she failed to hand Julien over to the IRS she would be prosecuted for non-compliance. On 9 June 2000 the bailiff reported that no one seemed to be living at the address indicated. On 20 June 2000 the judge again asked the police for information about S.C.’s current address. 38. On 14 December 2001 the police found Julien and S.C. On the same day the judge ordered Julien to be placed in a children’s home under the IRS’s supervision. S.C. was permitted to remain with Julien in the children’s home. The principal of the children’s home then refused to hand Julien over to the applicant, without a “court order to that effect”. On that day S.C. lodged a summary application with the Oeiras District Court seeking to prevent Julien being handed over to the applicant. The applicant claimed that he was not told of the outcome of that application. On 21 December 2001 Julien was handed over to S.C. in accordance with the decision of the Cascais Family Court on the same day (see paragraph 50 below). 39. On 19 December 2001 the prosecution service asked the judge to suspend the 15 June 1999 judgment, on the ground that, after so much time had elapsed, Julien ought to be examined by child psychiatrists before being handed over to the applicant. 40. By a decision of the same day the judge dismissed that request, on the ground that the disputed judgment had already become res judicata. 41. On 21 December 2001 the prosecution service appealed to the Lisbon Court of Appeal. By a judgment of 9 April 2002, the Court of Appeal quashed the disputed decision. It considered, among other things, that Julien already seemed well settled in his new environment and that the examinations in question were entirely appropriate. 42. On 11 July 2002 the Oeiras District Court judge asked the Lisbon Institute of Forensic Medicine to proceed with the examinations. 43. On 4 December 2002 the applicant was advised that Julien would be undergoing a medical examination on 14 February 2003. The applicant has not been informed of the results of those examinations. The proceedings are still pending. 44. In April 1997 the prosecution service applied to the Oeiras District Court for the terms of parental responsibility for Julien to be fixed. The case was allocated to the Second Civil Division of that court. 45. S.C. was summoned to appear from the address given by the applicant when he lodged his application for the child’s return, which was pending before the Third Civil Division of the Oeiras District Court. 46. On an unspecified date the prosecution service asked the judge to stay the proceedings in view of the fact that the application for the child’s return had not yet been decided. 47. By an order of 10 March 1998 the judge stayed the proceedings. 48. Further to the 15 June 1999 ruling by the Oeiras District Court, the judge issued a decision on 5 November 2000 to discontinue the proceedings.
(b) In the Cascais Family Court 49. On 21 December 2001 the prosecution service lodged a further application for determination of the terms of parental responsibility for Julien at the Cascais Family Court. It sought a variation of the Besançon tribunal de grande instance’s judgment of 19 February 1998 on the ground that the child had settled in his new environment. It also asked the court to grant interim custody of Julien to S.C. 50. By a decision of the same day the court granted S.C. interim custody of Julien. 51. On 15 May 2002 a meeting (conferência) was arranged between the parents. Following that meeting, the court decided that the applicant could be granted rights of access. The applicant was thus able to visit Julien at S.C.’s home on 17, 18 and 19 May 2002 for a few hours. 52. The proceedings are still pending. 53. The French Central Authority had remained in contact with the IRS throughout all the above-mentioned proceedings. The French embassy in Lisbon and the French consulate general in Lisbon sent several requests to the Portuguese authorities for information on the progress of the case. 54. Thus, on 28 March 2000 the French embassy in Lisbon asked the Portuguese Foreign Ministry to intervene in order to “expedite enforcement of the Oeiras District Court’s decision of 15 June 1999 requiring Mrs [S.C.] to hand over the child Julien Maire to his father immediately ... pursuant to the Convention on Judicial Cooperation between Portugal and France ... The police must ... now be formally required actively to search for the child ... whose mother’s family in Oeiras seem to know where he is because last year he was located in a flat belonging to his aunt in Algueirão”. 55. By a letter of 11 June 2001 the consul general informed the applicant as follows:
“... the Ambassador discussed your case with the director of the [Portuguese] Minister of Justice’s private office and with the public prosecutor. What emerged from those discussions is that recognition by the Portuguese courts of the French court decision to convict your former wife of a criminal offence is a complex issue and may not be satisfactorily resolved. However, ... the decision of the Portuguese civil courts that the child should be returned to you is final. The Oeiras prosecutor has asked the IRS and the security [police] to carry out a search. This search ... has not so far been successful, which is why the Portuguese authorities fear that mother and child may have left Portugal. Our Ambassador was nonetheless advised that the search would continue for as long as there was no proof that they had left the country ...” 56. Article 11 of the Convention on the Rights of the Child of 20 November 1989, which was ratified by France on 7 August 1990 and by Portugal on 21 September 1990, requires States Parties to “take measures to combat the illicit transfer and non-return of children abroad”. For that purpose, States “shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements”. 57. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which was ratified by Portugal on 29 September 1983 and by France on 16 September 1982, provide:
Article 1
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 2
“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”
Article 3
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 6
“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities .
...”
Article 7
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) to discover the whereabouts of a child who has been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social background of the child;
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
Article 12
“Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
...”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” 58. The relevant provisions of the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983 provide:
Article 18 – Right of action
“1. Where the voluntary return of the child is refused, Central Authorities shall refer the case without delay, through the intermediary of the court prosecution service, to the appropriate judicial authorities to secure either the enforcement in the requested State of the enforceable decisions taken in the requesting State, or a ruling on the application for the child’s return. 3. Enforcement of decisions shall be sought from the court within whose jurisdiction the minor is located or presumed to be located.”
Article 19 – Protective procedure for restoring the status quo
“1. The court of the State to or in which the child has been removed or wrongfully retained shall order, as a protective measure, the child’s immediate return unless the person who removed or retained the child establishes that:
(a) more than one year has elapsed between the removal or retention and the making of an application to the judicial authorities of the State where the child is located; or
(b) at the time of the alleged violation the person to whom custody had been awarded before such removal was not exercising his right of custody of the child either effectively or in good faith; or
(c) the child’s return would seriously jeopardise its health or safety owing to the occurrence of an exceptional event since the award of custody. 2. In assessing the circumstances listed above, the judicial authorities of the requested State shall take direct account of the law and judicial decisions of the State where the child is habitually resident. They shall take into consideration the information provided by the Central Authority of the State where the child is habitually resident concerning the legislation on custody in that State and concerning the child’s social background. 3. A decision on the child’s return shall not affect the merits of the custody issue.
...”
Article 20 – Variation of custody rights
“Where a court in the State to or in which the child has been removed or wrongfully retained finds that one of the exceptions listed in paragraphs 1 (b) or (c) of the preceding Article applies, it may rule on the merits of custody on the expiry of a period of one year after the child’s removal or retention provided that the child has settled in its new environment.” 59. Section 191 of the Minors Act adopted by Legislative Decree no. 314/78 of 27 October 1978 provides, inter alia:
“(1) If the minor has left his parents’ house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded, an application for his return shall be made to the court with jurisdiction over the area where the minor is located.
(2) If proceedings are brought, the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of five days.
...
(4) If there are no submissions in reply, or if such submissions are manifestly ill-founded, the court shall order the child’s return and indicate where it is to take place; the court shall order such return only where it considers it necessary; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms, on penalty of being prosecuted for non-compliance with a legal order.
...” 60. Under Article 348 of the Criminal Code, non-compliance with a legal order is punishable by a term of imprisonment of up to one year or by a fine not exceeding 120 day-fines. | [
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5. The applicant was born in 1929 and lives in Warsaw. 6. On 2 April 1992 the applicant filed with the Warsaw Regional Court (sąd wojewódzki) a petition in which he requested the annulment of a judgment delivered in 1947 in criminal proceedings against him, submitting that they had been of a political nature. He also claimed compensation. 7. On 10 February 1993 the court annulled that judgment. However, its decision did not relate to the compensation claim. 8. On 19 February 1993 the applicant filed another compensation claim. 9. Subsequently, he lodged several complaints concerning the inactivity of the court, but to no avail. 10. In her letters of 15 December 1993 and 29 June 1994, in reply to the applicant's complaints, a judge of the Regional Court informed the applicant that the delay in the examination of his compensation claim was caused by a large number of similar requests lodged with that court and the dearth of judges. 11. On 22 February 1995 the court held a hearing. A public prosecutor requested that the proceedings be stayed, submitting that a part of the Regional Court's decision of 10 February 1993 was invalid and required supplementation. Subsequently, the court stayed the proceedings. 12. The hearing scheduled for 22 March 1995 was adjourned at the applicant's request. 13. On 4 April 1995 the Regional Court asked the Office for the State Protection (Urząd Ochrony Państwa) to submit certain documents. The documents were submitted to the court on 27 March 1996. 14. On 4 July 1996 the proceedings were resumed. 15. The court adjourned the hearing scheduled for 23 January 1997, as the proceedings concerning the annulment of the criminal judgment against the applicant given in 1947 had not been completed. 16. On 19 June 2000 the Warsaw Regional Court gave judgment. It awarded the applicant PLN 7,500 in compensation. He did not lodge an appeal against that judgment. | [
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6. The applicant was born in 1951 and lives in Gdynia. 7. On 26 October 1993 the applicant lodged a civil claim against the Public Health Care Centre No. 1 in Gdynia, claiming compensation for health loss she had suffered as a result of a shock caused by the injection of a product to which she had been allergic. 8. By a letter of 7 January 1994 the Health Care Centre No. 1 in Gdynia submitted that, as a result of organisational changes, it was the Gdynia‑Śródmieście Specialised Clinic which had standing to be a defendant in the case. 9. On 1 March 1994 the court summoned the Gdynia-Śródmieście Specialised Clinic to become a party to the proceedings. 10. On 29 April 1996 the court ordered that expert opinions of a neurologist and urologist be prepared. 11. On 19 September 1996 the Gdańsk Medical Academy refused to give an opinion as in principle they refused to prepare expert reports in cases in which civil liability was potentially involved of physicians working in institutions of the public medical service, supervised by that Academy. 12. The court ordered that the Bydgoszcz Medical Academy be requested to prepare the opinion, apparently without success. It appears that they indicated that the preparation of such opinion would require that the applicant be hospitalised for observation. 13. On 9 May 1998 the Poznań Medical Academy refused to prepare a report, relying on their workload. 14. On 6 August 1998 the Kraków Medical Academy likewise refused to prepare the opinion, invoking an impossibility to find available specialists required by the court. 15. On 1 September 1999 the Wrocław Medical Academy refused to prepare the opinion, also invoking an impossibility to find available specialists required by the court, and also indicating that it would be necessary that the applicant undergo a hospital observation. 16. On 13 January 1999 the Gdynia-Śródmieście Specialised Clinic submitted that as a result of further organisational changes in the public health care system, the State Treasury should be represented by the Gdańsk Governor, and that the Gdynia Municipality should not be a party to the proceedings. By a decision of 28 January 1999 the court summoned the Governor as a party to the proceedings and discontinued the proceedings in respect of the Gdynia Municipality. 17. On 3 February 2000 the court transmitted the case to the Gdańsk Regional Court, which had become competent to deal with the case following the change of the defendant. 18. By a letter of 17 February 1999 the Gdańsk Governor submitted that he had no standing in the proceedings as since 1 January 1999 the Gdynia Municipality had become competent in matters of public health services. 19. On 11 April 2000 the Gdańsk Regional Court held a hearing and decided that eventually the Gdynia-Śródmieście Specialised Clinic should be the defendant. 20. The next hearing was scheduled for 6 June 2000. On an unspecified date two expert opinions were submitted to the court. 21. On 16 June 2000 the Gdynia District Court gave its judgment and dismissed the applicant's claim. 22. On 31 January 2001 a hearing was held before the Gdańsk Court of Appeal. The court decided to call further experts. 23. On 23 October 2001 the Court gave its judgment, partly changed the first-instance judgment and awarded the applicant compensation of PLN 5,000 and costs. | [
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9. The applicant was born in 1950 and lives in Belfast, Northern Ireland. 10. Around 7.25 p.m. on 12 February 1989 the applicant's husband, solicitor Patrick Finucane, was killed in front of her and their three children by two masked men who broke into their home. She herself was injured, probably by a ricochet bullet. Patrick Finucane was shot in the head, neck and chest. Six bullets had struck the head and there was evidence that one or more of these had been fired within a range of 15 inches when he was lying on the floor. The day after the murder, 13 February 1989, a man telephoned the press and stated that the illegal loyalist paramilitary group the Ulster Freedom Fighters (UFF) claimed responsibility for killing Patrick Finucane – the Provisional Irish Republican Army (Provisional IRA) officer – not the solicitor. 11. Patrick Finucane represented clients from both sides of the conflict in Northern Ireland and was involved in a number of high-profile cases arising from that conflict. The applicant believed that it was because of his work on these cases that prior to his murder he had received death threats, via his clients, from officers of the Royal Ulster Constabulary (RUC) and was targeted for murder. Patrick Finucane had been threatened occasionally since the late 1970s. After acting for Brian Gillen in a case concerning maltreatment in RUC custody, the threats apparently escalated, and clients reported that police officers often abused and threatened to kill him during interrogations at holding centres such as Castlereagh. On 5 January 1989, five weeks before his death, one of Patrick Finucane's clients reported that an RUC officer had said that the solicitor would meet his end. On 7 January 1989 another client claimed that he was told that Patrick Finucane was “getting took out” (murdered). His death came less than four weeks after Douglas Hogg MP, then Parliamentary Under-Secretary of State for the Home Department, had said in a committee stage debate on the Prevention of Terrorism (Temporary Provisions) Bill on 17 January 1989:
“I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.” 12. After the shooting, the applicant's house was cordoned off by the RUC and a forensic examination of the scene conducted by experts. Photographs were taken and maps prepared. A scene of crimes officer examined the car believed to have been used by those responsible for the shooting and which had been found abandoned. 13. On 13 February 1989 a consultant in pathology conducted a post-mortem examination. 14. A “major incident room” was set up at the Antrim Road police station. Many suspected members of the UFF were detained and interviewed about the murder. 15. On 4 July 1989 the RUC found one of the weapons believed to have been used in the murder. On 5 April 1990 three members of the UFF were convicted of possessing this and another weapon and of membership of the UFF. The weapon had been stolen from the barracks of the Ulster Defence Regiment (UDR – a locally recruited regiment of the British army) in August 1987, and in 1988 a member of the UDR was convicted of this theft. 16. In or around September 1990 the police found firearms in the attic of William Stobie's flat. The latter was arrested. He was, according to the applicant, questioned about the Finucane murder from 13 to 20 September 1990. A journalist had allegedly interviewed William Stobie and had told the police about the interview but declined to make a statement. The applicant alleged that William Stobie denied to the police any direct involvement in the shooting but admitted that he was the quartermaster for the Ulster Defence Association (UDA), supplying weapons and recovering them after use. He is also reported as having told the police that he had been acting as an informer for Special Branch for the past three years. A decision was taken on 16 January 1991 not to prosecute William Stobie in connection with the Finucane case, apparently on the ground that there was insufficient evidence. On 23 January 1991 it was decided not to proceed with two arms charges against William Stobie. The prosecution adduced no evidence and he was acquitted. 17. The inquest into Patrick Finucane's death opened on 6 September 1990 and ended the same day. Evidence was heard from RUC officers involved in investigating the death, as well as from the applicant, two neighbours and a taxi driver whose car had been hijacked and used by those responsible for the shooting. The applicant was represented by counsel, who was able to question witnesses on her behalf. After giving evidence, the applicant wanted to make a statement concerning the threats made against her husband by the RUC but was refused permission to do so by the coroner on the ground that it was not relevant to the proceedings. 18. Forensic evidence showed that the victim had been hit at least eleven times by a 9 mm Browning automatic pistol and twice by a .38 Special revolver. Detective Superintendent (D/S) Simpson of the RUC, who was in charge of the murder investigation, gave evidence that the Browning pistol was one of thirteen weapons stolen from Palace army barracks in August 1987 by a member of the UDR who was subsequently jailed for theft. These weapons found their way into the hands of three members of the UFF who were convicted of possession of the weapons and of membership of the UFF. However, the police were satisfied that those individuals had not been in possession of the weapons at the time of Patrick Finucane's murder. 19. According to the evidence given by D/S Simpson at the inquest, the police had interviewed fourteen people in connection with the murder, but had found that, although their suspicions were not assuaged, and they remained reasonably certain that the main perpetrators of the murder were among the suspects, there was insufficient evidence to sustain a charge of murder. None of the fourteen persons had any connection with the security forces. D/S Simpson further stated that none of the suspects had any connection with the security services. He rejected the claim made by the UFF that Patrick Finucane was a member of the Provisional IRA. 20. The inquest heard evidence that the murderers had used a red Ford Sierra car with the registration no. VIA 2985, which had been hijacked by three men from a taxi driver, W.R., shortly before the murder. D/S Simpson stated that he did not think that the hijackers had carried out the murder and that the precision of the killing indicated that the murderers had killed before. He had heard that a death threat had been made in front of a prisoner who was a client of the deceased. He had also seen parts of a report by a group of international lawyers. This had been investigated by the Stevens inquiry team (see below), with whom he liaised closely. Although he did not know who had been interviewed, as the Stevens inquiry was separate from the murder investigation, he said that no evidence had been found substantiating the allegation. On further questioning, he said that he had only read the report by the international lawyers that lunchtime and was unaware of the existence of material linking the security forces to Patrick Finucane's death. 21. On 14 September 1989 the Chief Constable of the RUC appointed John Stevens, then Deputy Chief Constable of the Cambridgeshire Constabulary, to investigate allegations of collusion between members of the security forces and loyalist paramilitaries (the Stevens 1 inquiry). 22. While, according to the applicant, it was claimed by the RUC at the inquest that John Stevens had also investigated her husband's death, the Government state that the inquiry was prompted by events other than the shooting of Patrick Finucane. 23. On 5 April 1990 John Stevens submitted his report to the Chief Constable of the RUC. While the full report was not made public, the Secretary of State for Northern Ireland made a statement to the House of Commons on 17 May 1990 in which he declared, inter alia, that as a result of the inquiry ninety-four persons had been arrested, fifty-nine of whom had been reported or charged with criminal offences. He stated that while the passing of information to paramilitaries by the security forces had taken place, it was restricted to a small number of individuals and was neither widespread nor institutionalised. Any evidence or allegation of criminal conduct had been rigorously followed up. No charges had been laid against members of the RUC, but John Stevens had concluded that there had been misbehaviour by a few members of the UDR. He had made detailed recommendations aimed at improving the arrangements for the dissemination and control of sensitive information. 24. As a result of the Stevens inquiry, Brian Nelson, who had worked as an undercover agent providing information to British military intelligence and who had become the chief intelligence officer of the UDA, an illegal loyalist paramilitary group which directed the activities of the UFF, was arrested. At his trial, the British authorities claimed that he had got out of hand and had become personally involved in loyalist murder plots. Originally, he faced thirty-five charges, but thirteen were dropped and he was eventually convicted on five charges of conspiracy to murder, for which he was sentenced to ten years' imprisonment. During the Stevens inquiry, members of the team had interviewed him. According to the Government, he had denied any complicity in the murder. 25. In prison, Brian Nelson allegedly admitted that, in his capacity as a UDA intelligence officer, he had himself targeted Patrick Finucane and, in his capacity as a double agent, had told his British army handlers about the approach at the time. It was also alleged that he had passed a photograph of Patrick Finucane to the UDA before he was killed. Loyalist sources further alleged that Brian Nelson had himself pointed out Patrick Finucane's house to the killers. These allegations were transmitted in a BBC Panorama programme on 8 June 1992 and the transcript of the programme was sent to the Director of Public Prosecutions (DPP). 26. Following the Panorama programme, the DPP asked the Chief Constable of the RUC to conduct further inquiries into the issues raised in the programme. In April 1993 John Stevens, then Chief Constable of the Northumbria Police, was appointed to conduct a second inquiry (the Stevens 2 inquiry). According to the Government, he investigated the alleged involvement of Brian Nelson and members of the army in the death of Patrick Finucane (see, however, John Steven's press statement, paragraph 33 below). The applicant stated that no member of the inquiry team contacted her or her legal representative, or any former clients of Patrick Finucane, about the death threats made prior to the murder. 27. On 21 January 1995 John Stevens submitted his final report to the DPP, having submitted earlier reports on 25 April 1994 and 18 October 1994. On 17 February 1995 the DPP issued a direction of “no prosecution” to the Chief Constable of the RUC. 28. In answer to a parliamentary question published on 15 May 1995, Sir John Wheeler MP said that the DPP had concluded that there was insufficient evidence to warrant the prosecution of any person, despite Brian Nelson's alleged confession. He refused to place copies of Mr Stevens' three reports in the House of Commons library, claiming that police reports were confidential. 29. On 11 February 1992 the applicant issued a writ of summons against the Ministry of Defence and Brian Nelson, claiming damages on behalf of the estate of the deceased, herself and other dependants of the deceased. It was alleged that the deceased's murder had been committed by or at the instigation of or with the connivance, knowledge, encouragement and assistance of the first defendant and by the second defendant, who was at all material times a servant or agent of the first defendant. It was also alleged that the first defendant had been negligent in the gathering, recording, retention, safe-keeping and dissemination of material concerning the deceased, and in the warning, protection and safeguarding of the deceased. 30. The applicant's statement of claim was served on 8 December 1993 and the defence of the Ministry of Defence on 29 December 1993. In its amended defence of 11 October 1995, it was admitted that Brian Nelson had acted as agent for and on behalf of the Ministry of Defence but it was claimed that if he had had any information about the proposed attack on Patrick Finucane he had not communicated it to the ministry as he was required to do. 31. On 22 January 1998 the applicant served further and better particulars of her case and a request for further and better particulars of the Ministry of Defence's case. She served a list of documents on 8 April 1998. On 20 May 1999 a supplemental list of documents, certified by an affidavit sworn by the Permanent Under Secretary of the Ministry of Defence, was served on the applicant. The applicant requested copies of those documents, which were provided on 20 July 1999. The applicant then asked to inspect the originals but was informed on 21 October 1999 that the Ministry of Defence did not have them. 32. On 12 February 1999 the Government stated that at a meeting between the applicant and Dr Mowlem, the Secretary of State for Northern Ireland, a paper was handed over to Dr Mowlem which, it was claimed, contained new material relating to the murder of Patrick Finucane. This paper was passed on to John Stevens, now Deputy Commissioner of the Metropolitan Police, who had been appointed by the Chief Constable of the RUC to conduct an independent investigation into the murder of the applicant's husband (the Stevens 3 inquiry). 33. On 28 April 1999, at a press conference, John Stevens stated:
“... in September 1989 ... I was appointed ... to conduct the so-called 'Stevens inquiry' into breaches of security by the security forces in Northern Ireland.
This commenced after the theft of montages from Dunmurry Police Station.
This inquiry resulted in 43 convictions and over 800 years of imprisonment for those convicted.
My subsequent report contained over 100 recommendations for the handling of security documents and information.
All of those recommendations were accepted and have been implemented.
This 'Stevens 1' inquiry was followed by a 'Stevens 2' inquiry in April 1993 ...
At the request of the DPP I was asked to investigate further matters which solely related to the previous inquiry and prosecutions. [The then RUC Chief Constable] referred to our return as 'tying up some loose ends'.
At no time, either in Stevens 2 or in the original Stevens 1 inquiry did I investigate the murder of Patrick Finucane ... However, those inquiries through the so-called double agent, Brian Nelson, were linked into the murder of Patrick Finucane.
[The] Chief Constable of the [RUC] has now asked me to conduct an independent investigation into the murder of Patrick Finucane. I am also investigating the associated matters raised by the British Irish Rights Watch document 'Deadly Intelligence' and the UN Commissioner's Report. ...” 34. On or around 23 June 1999 charges were brought against William Stobie for the murder of Patrick Finucane and against Mark Barr, Paul Givens and William Hutchinson for offences of possession of documents containing information useful to terrorists. 35. It was reported by the Committee for the Administration of Justice that on being charged William Stobie made the following statement:
“Not guilty of the charge that you have put to me tonight. At the time I was police informer for Special Branch. On the night of the death of Patrick Finucane I informed Special Branch on two occasions by telephone of a person who was to be shot. I did not know at the time of the person who was to be shot.” 36. William Stobie's solicitor told the court that his client was a paid police informer from 1987 to 1990 and that he had given information to the police on two occasions before the Finucane murder which was not acted upon. He also stated that, at his client's trial on 23 January 1991 on firearms charges, the prosecution had adduced no evidence and his client was acquitted. The bulk of the evidence against his client had, he alleged, been known to the authorities for almost ten years. 37. On 26 November 2001 it was reported in the press that William Stobie's trial had collapsed when the Lord Chief Justice returned a verdict of not guilty in the absence of evidence. The prosecution had informed the court that the key witness, a journalist, was not able to give evidence due to serious mental illness. 38. On 12 December 2001 William Stobie was shot dead by gunmen, shortly after receiving threats from loyalist paramilitaries. 39. Further arrests were reported as having been made by officers in the Stevens inquiry in March 2002, with persons being questioned in relation to the Finucane murder. 40. On 24 October 2001 the government announced in Parliament that, amongst the measures proposed to the Irish government in the context of the Good Friday Agreement, was the proposal for the United Kingdom and Irish governments to appoint a judge of international standing from outside both jurisdictions to undertake an investigation into allegations of security force collusion in loyalist paramilitary killings, including that of Patrick Finucane. In the light of the investigation, the judge would decide whether to recommend a public inquiry into any of the killings. 41. On 17 April 2003 John Stevens submitted his report to the DPP. A nineteen-page overview with recommendations was made public. It included the following:
“4.6. I have uncovered enough evidence to lead me to believe that the murders of Patrick Finucane and Brian Adam Lambert could have been prevented. I also believe that the RUC investigation of Patrick Finucane's murder should have resulted in the early arrest and detection of his killers. 4.7. I concluded that there was collusion in both murders and the circumstances surrounding them. Collusion is evidenced in many ways. This ranges from the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder ...”
He stated that his inquiries with regard to satisfying the test for prosecution in relation to possible offences arising out of these matters were continuing. | [
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6. The applicants live in Rome. 7. A.M.C. was the owner of a flat in Rome, which she had let to A.N. 8. In a registered letter of 12 July 1990, the owner informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1991 and asked her to vacate the premises by that date. The tenant told the owner that she would not leave the premises by that date. 9. In a writ served on the tenant on 18 December 1990, the owner reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 10. By a decision of 3 May 1991, which was made enforceable on 8 July 1991, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 11. On an unspecified date F.B, the applicants' father, became the owner of the flat by transfer of property. 12. On 25 January 1993, the new owner served notice on the tenant requiring her to vacate the premises. 13. On 12 May 1993, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 21 May 1993. 14. On 21 May 1993, the bailiff made one attempt to recover possession which proved unsuccessful as the owner was not entitled to police assistance in enforcing the order for possession. 15. On 1 July 1993, the owner served a second notice on the tenant requiring her to vacate the premises. 16. On 23 September 1993, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 29 September 1993. 17. Between 29 September 1993 and 15 June 1995, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful as the owner was not entitled to police assistance in enforcing the order for possession. 18. On 16 March 1995, the owner made a statutory declaration that he urgently required the premises as accommodation for himself. 19. On 16 July 1997, the owner served a new notice on the tenant requiring her to vacate the premises. 20. On 5 September 1997, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 23 July 1997. 21. Between 23 July 1997 and 21 November 1997, the bailiff made two attempts to recover possession.
Each attempt proved unsuccessful as the owner was not granted the assistance of the police in enforcing the order for possession. 22. On 20 September 1997, the owner died and his children – the applicants – inherited the flat. 23. On 21 May 1998, the applicants served notice on the tenant requiring her to vacate the premises. 24. On 5 June 1998, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 1 July 1998. 25. Between 1 July 1998 and 15 July 1999, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession. 26. On 14 September 1999, the applicants recovered possession of the flat. | [
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6. The applicant is an Italian national, born in 1944 and living in Florence. 7. She is the owner of a flat in Florence, which she had let to M.C. 8. In a registered letter of 26 October 1992, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 May 1995 and asked her to vacate the premises by that date. 9. In a writ served on the tenant on 20 November 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 10. By a decision of 14 December 1992, which was made enforceable on 12 January 1993, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1995. 11. On 28 November 1994, the applicant made a statutory declaration that she urgently required the premises as accommodation for her son. 12. On 5 June 1995, the applicant served notice on the tenant requiring her to vacate the premises. 13. On 21 June 1995, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 5 September 1995. 14. Between 5 September 1995 and 2 May 1999, the bailiff made eleven attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 15. Pursuant to Law no. 431/98, on 23 July 1999, the tenant asked the Florence Magistrate to suspend the enforcement proceedings. 16. On 12 March 2001, the enforcement proceedings were suspended until 2 October 2002. 17. On 6 April 2001, the applicant served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 2 October 2002. 18. On an unspecified date, the applicant recovered possession of the flat. | [
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11. The applicant, born in 1950, was a Turkish national at the time of the events complained of. He subsequently obtained German nationality. 12. The applicant is the father of G., born out of wedlock on 29 June 1988. In a document dated 15 June 1988, he acknowledged paternity of the unborn child, and in a further document, dated 15 August 1988, he acknowledged paternity and undertook to pay maintenance. 13. The applicant met the child's mother, Ms D., in 1985 and in December 1987 he moved into her flat, where they lived together until at least July 1989 or, as stated by the applicant, until February 1990. In any event, the applicant continued to visit the child and her mother until February 1990, and between the end of July and October 1990 he regularly fetched G. for visits. From November 1990 onwards, Ms D. prohibited any contact between the applicant and the child. 14. On 5 December 1990 the applicant applied to the Wiesbaden District Court for a decision granting him a right of access to his daughter on every Sunday from 10 a.m. until 6 p.m. as well as on Boxing Day and Easter Monday. 15. On 5 September 1991 the District Court, having regard to the statements made by the parties and the Wiesbaden Youth Office and having considered evidence obtained from several witnesses, dismissed the applicant's request. 16. The court, referring to Article 1711 of the Civil Code, observed that the mother, as the person having custody, determined the father's right of access to the child and that the guardianship court could only grant the father a right of access if this was in the child's best interests. The court found as follows:
“The Court is convinced that the petitioner's wish for [G.] to visit him is motivated by attachment to his child and genuine affection for her. It nonetheless takes the view that personal contact with her father is not in the child's best interests, since her mother dislikes her father so deeply and opposes all contact so fiercely that any visits ordered by the court would take place in a tense, emotionally charged atmosphere which would probably be extremely harmful to the child.
The Court can discern no special circumstances which, given the strong differences between the parents, might make personal contact with her father appear beneficial for [G.] ... The relationship which developed between [G.] and her father in the period from her birth to her father's moving out – that is, approximately one year and nine months – is probably not of such fundamental importance that the risk of seriously upsetting the child by resuming contact opposed by her mother is worth taking. The staff who looked after [G.] at the day nursery, and who were questioned as witnesses, stated that she displayed no – or at least no serious and lasting – behavioural abnormalities when she was parted from her father and contact between them ceased, and that she is a balanced, cheerful and outgoing child. The evidence does not therefore confirm her father's claim that she missed him and frequently asked about him after their contact at the day nursery ceased.
It has not therefore been shown that the conditions laid down in Article 1711 § 2 have been met, and the Court is accordingly obliged to dismiss the father's request.” 17. On 12 March 1992 the applicant appealed to the Wiesbaden Regional Court. 18. On 12 May 1992 the Regional Court ordered a psychological expert opinion on the question whether contact with the applicant was in G.'s interests. On 8 July 1992, following a first conversation with the expert, the applicant challenged her for bias. He also requested that another expert be appointed on the ground that the scientific approach adopted did not reflect the latest state of research. On 9 September 1992 the Regional Court refused the applicant's request, finding that, taking into account the expert's explanations of 8 August 1992, there were no reasons to doubt her impartiality or her capabilities. 19. On 17 December 1992 the applicant requested the Regional Court to progress with the proceedings. He also applied for a provisional order granting him a right of access to G. during one afternoon every week and prohibiting her mother from obstructing such contact. 20. On 23 December 1992 the Regional Court dismissed the applicant's request for a provisional order granting access. The Regional Court found that there was no urgency and that the applicant could be expected to await the outcome of the main proceedings. Furthermore, such an order would anticipate the possible terms of a final decision. Should a provisional order be issued and the request be eventually dismissed in the main proceedings, the disadvantages for the child would be more serious than those for the applicant in continuing with the prevailing situation. 21. In her opinion dated 25 February 1993, the expert noted that she had visited the applicant's family in June 1992 and again heard the applicant, the child's mother and the child on several occasions between November 1992 and February 1993. As regards her meetings with G., the expert explained that in the course of various games she had explored her feelings concerning persons and situations and concerning the applicant. They had also looked at a family photo album and G. had avoided looking at the more recent photographs. This reaction showed that G. had repressed the memories of her father. The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child's interests. 22. By a letter of 8 March 1993, the Regional Court, noting that the District Court had omitted to hear the child, enquired of the expert whether hearing the child in court on the issue of her relationship with her father would place a psychological strain on her. 23. In her reply of 13 March 1993, the expert indicated that she had not directly asked the child about her father. She had expected that G. would react spontaneously in the course of the meetings and express her feelings towards him. In the expert's view, the fact that G. had not mentioned her father was certainly relevant. The expert further referred to the last meeting, when they had glanced through a family photo album and she had asked G. about whether she still knew her father. On both occasions, she had appeared to repress her memories concerning him. The risk inherent in questioning her about whether she wished to see her father was that, in this conflict between the parents, the child might have the impression that her statements were decisive. Such a situation could provoke serious feelings of guilt. 24. At a court hearing on 30 April 1993, the applicant and the child's mother entered into an agreement. Under the terms of this agreement, the applicant declared that he would refrain from instituting any court proceedings, making any enquiries about the mother's personal circumstances and exercising his right of custody obtained under Turkish law on condition that they underwent parental therapy. The proceedings were suspended until the termination of this therapy. 25. On 1 June 1993 the applicant requested that the proceedings be resumed as the child's mother had not approved the two institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal. 26. On 25 August 1993 the Wiesbaden Regional Court dismissed the applicant's appeal, finding as follows:
“Personal contact with a child born out of wedlock is intended to allow a father to satisfy himself as to the child's welfare and development and preserve the natural ties existing between them. It is not therefore the purpose of granting access, but the legal conditions for doing so, which differ: while a parent who does not have custody of a child born in wedlock is entitled to access under Article 1634 [of the Civil Code], Article 1711 [of the Code] does not grant a right of access to the father of a child born out of wedlock. Rather, the law leaves it up to the person having custody, as a rule the mother, to determine whether, and to what extent, the father should be able to spend time with his child. However, the guardianship court may decide that the father is entitled to access if this is in the child's best interests. The main reason for the weaker legal position of the father of a child born out of wedlock is his different social position. After the Federal Constitutional Court's decisions of 1971 and 1981, the constitutionality of Article 1711 can no longer be seriously doubted. For considerations of legal policy, a reform of the law on children born out of wedlock is even more urgently necessary. In the meantime, the courts are bound by Article 1711.
Under that provision, the guardianship court decides to grant a father access to a child born out of wedlock if this is beneficial for the child's welfare. It is not enough for such contact to be consistent with, or not contrary to, the child's interests, it must serve those interests and promote them. This interpretation justifies the assumption that fathers should generally be granted access to their children because this enables the latter to develop as normally as possible and helps them to form a clear image of themselves and their origin. It is in fact important for children not simply to have a fantasy picture of their fathers, but to be able to form a personal, realistic picture.
Whether contact with the father is conducive to the child's well-being depends initially on the father's motives for seeking it. The Regional Court is convinced that the father in this case is motivated by attachment to [G.] and genuine affection for her. Even when a father acts from responsible motives, however, the court is not necessarily obliged to grant him access if there are serious tensions between the parents, these are communicated to the child, and there is reason to fear that every meeting with the father will interfere with the child's further undisturbed development in the residual family provided by the mother ...
In view of the findings in the [psychological expert] report referred to above, it must be assumed that this would happen in the instant case. If the father were granted access to [G.] in present circumstances, she would have to shuttle between hostile camps, which should not be asked of her.
If – as in this case – there is a danger that differences between parents may affect a child, then special circumstances are needed to justify the assumption that contact with the father will nevertheless have permanently beneficial effects on the child's development or well-being ... However, no such circumstances can be discerned here. It is true that, for the first two years of her life, [G.] grew up with both father and mother, but this period was not conflict-free. The disagreements and sometimes open aggression between her parents – in other words, the family violence she witnessed – have certainly left their mark on her, even if she can no longer recall them spontaneously. As the psychological report indicates, she has also repressed her old ties with her father – a fact reflected in the care she takes to avoid talking about him. In view of all this, the report finds that she does not suffer as a result of the present situation.
The Court can rely fully on the report, which has no apparent defects and is not invalidated by the fact that the father sees the situation differently.
In finding that therapy had not enabled the parents to put their former conflicts behind them, thus making it possible for [G.] to have access to both of them, the Court did not have to decide who was to blame for this ... The decisive factor is always the child's point of view. As already pointed out, however, the situation in this case is such that the parents must first initiate dialogue with each other.” 27. The Regional Court finally considered that exceptionally it had not been required to hear the child, since questioning her about her relationship with her father would have placed a psychological strain on her. In this connection, the court referred to the expert's supplementary report of 13 March 1993 (see paragraph 23 above). 28. On 21 September 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, and alleging that the taking of expert evidence had been unfair. The Federal Constitutional Court acknowledged receipt on 29 September 1993.
By a letter of 26 April 1994, the applicant asked the Constitutional Court about the state of the proceedings and urged a speedy decision. On 16 May 1994 the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for the first half of 1995.
On 26 November 1995 the applicant sent a letter to the President of the Federal Constitutional Court complaining that the examination of his constitutional complaint had been postponed until the first half of 1996. In her reply of 15 February 1996 the judge dealing with the applicant's case informed him that, owing to the heavy workload of the Federal Constitutional Court in 1995, it had not been possible to take a decision. A decision was envisaged in 1996. Having regard to the importance of the subject matter, such a decision required careful preparation. 29. On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint. | [
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11. Ruth Hatton was born in 1963. Between 1991 and 1997 she lived in East Sheen with her husband and two children. According to information supplied by the Government, her house was 11.7 km from the end of the nearest runway at Heathrow and fell within a daytime noise contour where the level of disturbance from aircraft noise was between 57 and 60 dBa Leq. According to the Government, dBA Leq measure the average degree of community annoyance from aircraft noise over a sixteen-hour daytime period and studies have shown that in areas where the daytime noise exposure is below 57 dBA Leq there is no significant community annoyance. The Government state that a daytime noise contour of 57 dBA Leq represents a low level of annoyance; 63 dBA Leq represent a moderate level of annoyance; 69 dBA Leq correspond to a high level of annoyance; and 72 dBA Leq represent a very high level of annoyance. 12. According to Ms Hatton, in 1993 the level of night noise increased and she began to find noise levels to be “intolerable” at night. She believed that the noise was greater when aircraft were landing at Heathrow from the east. When this happened, Ms Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Ms Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Ms Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Ms Hatton's children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Ms Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, she moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night. 13. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated 4.4 km from Heathrow Airport and slightly to the north of the southern flight path, within a daytime noise contour of between 63 and 66 dBA Leq, according to the Government. 14. Mr Thake claims that in about 1993 the level of disturbance at night from aircraft noise increased notably and he began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep, and he found it hard to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on nineteen occasions. He remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area, but moved to Winchester, in Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”. 15. John Hartley was born in 1948 and has lived with his wife at his present address in Richmond since 1989. According to the information provided by the Government, Mr Hartley's house is 9.4 km from the end of the nearest Heathrow runway and, situated almost directly under the southern approach to the airport, within a daytime noise contour area of between 60 and 63 dBA Leq. The windows of the house are double-glazed. 16. From 1993, Mr Hartley claims to have noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). He states that the British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than then. He would find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep. 17. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. According to information supplied by the Government, Ms Edmund's house is 8.5 km from the end of the nearest Heathrow runway and approximately 1 km from the flight path, within a daytime noise contour area of under 57 dBA Leq. 18. The applicant claims that before 1993 she was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. She suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night and, although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds's children both suffered from disturbance by aircraft noise. 19. John Cavalla was born in 1925. From 1970 to 1996 he lived with his wife in Isleworth, directly under the flight path of the northern runway at Heathrow Airport. According to information supplied by the Government, the applicant's house was 6.3 km from the end of the nearest Heathrow runway, within a daytime noise contour of between 63 and 66 dBA Leq. 20. The applicant claims that in the early 1990s the noise climate deteriorated markedly, partly because of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla considers that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. He found that, once woken by an aircraft arriving at Heathrow Airport in the early morning, he was unable to go back to sleep. 21. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. According to the Government, the new house is 9.5 km from Heathrow, within a daytime noise contour area of under 57 dBA Leq. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, he was only very rarely exposed to any night-time aircraft noise following his move. 22. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. The family have lived at their present address since 1975, in a house lying between the north and south Heathrow flight paths. According to the Government, it is 10.7 km from Heathrow, within a noise contour area of 57 to 60 dBA Leq. Aircraft pass overhead on seven or eight days out of every ten when the prevailing wind is from the west. 23. Mr Thomas claims to have noticed a sudden increase in night disturbance in 1993. He complains of being woken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m. 24. Richard Bird was born in 1933 and lived in Windsor for thirty years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow Airport. According to the Government, it was 11.5 km from Heathrow, within a daytime noise contour area of 57 to 60 dBA Leq. 25. The applicant claims that in recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. or 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998 and moved with his wife to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”. 26. Tony Anderson was born in 1932 and has lived since 1963 in Touchen End, under the approach to runway 09L at Heathrow Airport and, according to the Government, 17.3 km from the end of the nearest runway, within a daytime noise contour area of under 57 dBA Leq.
According to the applicant, by 1994 he began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow Airport. 27. The dBA Leq noise contour figures supplied by the Government and referred to above measure levels of annoyance caused by noise during the course of an average summer day. The Government state that it is not possible to map equivalent contours for night noise disturbance, because there is no widely accepted scale or standard with which to measure night-time annoyance caused by aircraft noise. However, the Government claim that the maximum “average sound exposure” levels, in decibels (dBA), suffered by each applicant as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning is as follows: Ms Hatton – 88 dBA; Mr Thake – 88.8 dBA; Mr Hartley – 89.9 dBA; Ms Edmunds – 83.4 dBA; Mr Cavalla (at his previous address) – 94.4 dBA; Mr Thomas – 88.7 dBA; Mr Bird – 87.8 dBA; and Mr Anderson – 84.1 dBA.
The Government further claim that the average “peak noise event” levels, that is the maximum noise caused by a single aircraft movement, suffered by each applicant at night are as follows: Mrs Hatton – 76.3 dBA; Mr Thake – 77.1 dBA; Mr Hartley – 78.9 dBA; Ms Edmunds – 70 dBA; Mr Cavalla (at his previous address) – 85 dBA; Mr Thomas – 77.2 dBA; Mr Bird – 76 dBA; Mr Anderson – 71.1 dBA.
The Government claim that research commissioned before the 1993 review of night restrictions indicated that average outdoor sound exposure levels of below 90 dBA, equivalent to peak noise event levels of approximately 80 dBA, were unlikely to cause any measurable increase in overall rates of sleep disturbance experienced during normal sleep. The applicants, however, refer to World Health Organisation “Guidelines for Community Noise”, which gave a guideline value for avoiding sleep disturbance at night of a single noise event of 60 dBA[1]. 28. Heathrow Airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom's leading port in terms of visible trade. 29. Restrictions on night flights at Heathrow Airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998. 30. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority. 31. A Consultation Paper was published by the United Kingdom government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided levels of dBA Leq were not increased. 32. It indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow Airport as a twenty-four-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports. 33. From 1988 to 1993, night flying was regulated solely by means of a limitation on the number of take-offs and landings permitted at night. The hours of restriction were as follows:
Summer 11.30 p.m. to 6 a.m. weekdays,11.30 p.m. to 6 a.m. Sunday landings,11.30 p.m. to 8 a.m. Sunday take-offs;
Winter11.30 p.m. to 6.30 a.m. weekdays,11.30 p.m. to 8 a.m. Sunday take-offs and landings. 34. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. The objectives of the review included “to continue to protect local communities from excessive aircraft noise at night” and “to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account”. 35. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester Airports. The findings were published in December 1992 as the “Report of a field study of aircraft noise and sleep disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about eighteen nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft movements would cause very little increase in the average person's nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after-effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average. 36. In January 1993, the government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. The Consultation Paper set up four objectives of the review being undertaken (so far as Heathrow was concerned): to revise and update the existing arrangements; to introduce a common night flights regime for the three airports; to continue to protect local communities from excessive aircraft noise levels at night; and to ensure that competitive influences and the wider employment and economic implications were taken into account. In a section entitled “Concerns of local people”, the Consultation Paper referred to arguments that night flights should be further restricted or banned altogether. In the authors' view, the proposals struck a fair balance between the different interests and did “protect local people from excessive aircraft noise at night”. In considering the demand for night flights, the Consultation Paper made reference to the fact that, if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than those that competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements. 37. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price-sensitive market. 38. Further, the Consultation Paper stated that both regular and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings.
It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price-sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended on high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and this could only be fitted in by using movements at night. 39. Finally, as regards night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and pointed to the fact that all-cargo movements were banned, whether arriving or departing, for much of the day at Heathrow Airport. 40. The Consultation Paper referred to the 1992 sleep study, noting that it had found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people's health or well-being. 41. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to reduce it, it was proposed that the quota for the next five years based on the new system should be set at a level such as to keep overall noise levels below those in 1988. 42. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association (IATA), the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses. 43. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”). 44. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Each airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement. 45. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (aircraft with a quota count of 8 QC or 16 QC) or to land (aircraft with a quota count of 16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter). 46. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper. 47. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 80-83 below). As a result of the various judgments delivered by the High Court and Court of Appeal, the government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions (DETR) formerly the Department of Transport) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted Airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995 and issued a supplement to the March 1995 Consultation Paper in June 1995. 48. The June 1995 supplement stated that the Secretary of State's policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted Airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 midnight and 5.30 a.m. 49. On 16 August 1995 the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal confirmed the lawfulness of the 1993 Scheme, as it had been amended (see paragraphs 82-83 below). 50. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks changed from Greenwich Mean Time (GMT) to British Summer Time (BST)). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period. 51. In September 1995, a trial was initiated at Heathrow Airport of modified procedures for early morning landings (those between 4 a.m. and 6 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of revised Heathrow early mornings approach procedures trial”, was published in November 1998. 52. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published the same month. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”. 53. In 1998, the government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted Airports. In February 1998, a Preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper. 54. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom's most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success. 55. The government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation. 56. The British Air Transport Association (BATA) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about 850 million pounds sterling (GBP). BATA submitted the report to the government when it responded to the Preliminary Consultation Paper. 57. On 10 September 1998 the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998. 58. In November 1998, the government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that “interference with sleep” was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full-scale study of either sleep prevention or total sleep loss. 59. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss. 60. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they were of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; and to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and update the arrangements as appropriate. 61. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m. 62. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region. 63. The Consultation Paper indicated that the government had not attempted to quantify the aviation and economic benefits of night flights in financial terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which were commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long-haul scheduled night flight at Heathrow to be GBP 20 million to GBP 30 million per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA's figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts. 64. The Consultation Paper stated that, in formulating its proposals, the government had taken into account both BATA's figures and the fact that it was not possible for the government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in financial terms, but it was possible, drawing on the 1992 sleep study, to estimate the number of people likely to be awakened. The Consultation Paper concluded that, in forming its proposals, the government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night, that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the government's view, would protect local people from excessive aircraft noise at night. 65. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant re-classifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of “Chapter 2” civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (that is, after completion of the compulsory Chapter 2 phase-out). 66. The Consultation Paper stated that since the introduction of the 1993 Scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 Scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review. 67. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow's runways at night. 68. On 10 June 1999 the government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99. 69. The 1999 Scheme came into effect on 31 October 1999. 70. On 10 November 1999, a report was published on “The contribution of the aviation industry to the UK economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the government. 71. On 23 November 1999 the government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further Consultation Paper concerning proposals for changes to the preferential use of Heathrow's runways at night. 72. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR. 73. In March 2000, the Department of Operational Research and Analysis (DORA) published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers. 74. A series of noise mitigation and abatement measures is in place at Heathrow Airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise-related airport charges; noise insulation grant schemes; and compensation for noise nuisance under the Land Compensation Act 1973. 75. The DETR and the management of Heathrow Airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas in the vicinity of Heathrow Airport and local residents' associations are represented. | [
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6. The applicant was born in 1948 and lives in Legionowo, Poland. 7. On 7 August 1948 the Warsaw District Military Court convicted the applicant’s father of an unspecified offence related to his political activity. 8. On 20 April 1994 the applicant filed an application with the Ostrołęka Regional Court (Sąd Wojewódzki) for the annulment of his father’s conviction under the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego). 9. On 20 June 1994 the Regional Court declared the conviction null and void. 10. On an unknown later date in 1994 the applicant filed an application for compensation for his father’s wrongful conviction with the Ostrołęka Regional Court. 11. Subsequently, the case was referred to the Warsaw Regional Court. 12. On 11 July 2000 the Regional Court granted the applicant’s claim. That judgment became final on 19 July 2000. 13. On 14 November 2000 the applicant complained to the Minister of Justice about the fact that he had not received the awarded compensation. 14. The compensation was paid on 2 April 2001. | [
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8. The applicant was born in 1927 and lives in Skarżysko-Kamienna, Poland. 9. In 1984 the applicant’s father died. On 4 October 1985 W.S. (“the petitioner”) filed an application for distribution of the estate of the deceased with the Starachowice District Court (Sąd Rejonowy). The applicant was a party to the proceedings. 10. From 23 November 1987 to 15 March 1988 the proceedings were stayed due to the death of one of the parties. Later, the petitioner instituted administrative proceedings and requested that title to the applicant’s father real property be declared null and void. As a result, on 27 November 1991 the court stayed the proceedings. On 12 February 1992 they were resumed. 11. In the course of the proceedings the court held a number of hearings and obtained thirteen expert reports. On 24 October 1994 it gave a decision. The petitioner appealed. 12. On 14 June 1995 the Kielce Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case to the District Court. 13. Subsequently, the trial court held hearings on the following dates: 16 January, 2 and 30 April 1996. On 31 October 1996 the court stayed the proceedings. The applicant appealed. On 21 December 1996 the court quashed the contested decision. 14. The court held hearings on the following dates: 27 May, 16 September, 1 December 1997 and 16 January 1998. 15. On 17 February 1998 the court stayed the proceedings, considering that the determination of the case depended on the outcome of the other civil proceedings. The applicant appealed. On 29 May 1998 the Kielce Regional Court upheld the decision of the District Court. 16. On 4 August 1998 the applicant requested that the proceedings be resumed. On 20 October 2000 the court refused the applicant’s request as the petitioner had failed to secure an advance payment for an expert report. 17. It appears that the proceedings are still stayed and, therefore, pending. | [
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11. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant acknowledged paternity of M. 12. The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contact between the applicant and the child. The applicant still met M. several times at school until such contact was no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name. 13. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access to his daughter. Having heard the persons concerned, the Rostock Youth Office, in comments dated 11 April 1991, advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W., which would be adversely affected by contact between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access. 14. On 27 June 1991 M., then ten years old, was heard by a judge of the District Court. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court. 15. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office. On 30 September 1991 the Youth Office informed the District Court that no agreement had been achieved and that M. had stated that she did not wish to see the applicant. 16. On 12 December 1991 the court ordered that a psychological expert opinion be prepared. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services stated that, as contact between the applicant and M. had been disrupted for six years, no diagnosis of their current relationship appeared possible. The psychologist considered that the views which the applicant and M. had expressed on the question of future contact were very different. M. was growing up in a family unit and, unlike the applicant, was not suffering from any deficits in that respect, and did not wish to have any personal contact with the applicant. He should give her the necessary time to take up contact of her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather. 17. On 24 June 1992 the District Court judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contact with the applicant, the latter affirmed that he would withdraw his request for a right of access. 18. The applicant withdrew his request on 1 July 1992. 19. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter. 20. On 15 February 1994 the District Court judge heard the thirteen-year-old M., who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved, though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994. 21. On 1 June 1994 the District Court dismissed the applicant’s application. 22. The District Court noted the comments filed by the Rostock Youth Office on 6 January 1994 as well as the parents’ and the child’s statements in court. The Court also had regard to the comments filed by the Youth Office in April 1991 and to the statement submitted by the psychologist in April 1992, both in the context of the first set of access proceedings. 23. The District Court found that the applicant could not be granted access to the child. Referring to section 1711 of the Civil Code, the Court observed that the mother, having sole custody, determined the father’s access and the guardianship court could only decide to grant the father access if this was in the child’s best interest. In this respect, the court found as follows:
“On the basis of its extensive investigations, and especially its conversations with [M.] in 1992 and February 1994, this court has decided that, in the present case, access by the father to his child is by no means in her best interest.
At the age of thirteen, [M.] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father. In the court’s opinion, forcing her to see him against her will cannot be justified, since this would seriously disturb her emotional and psychological balance. Such a decision would on no account be in her best interest.
This court cannot accept the [applicant’s] sweeping statement that access is always in the child’s interest. The extent to which this is true invariably depends on circumstances. In this case, the only justifiable decision is that set out in the operative part of the judgment.
...” 24. On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal on the following grounds:
“The appeal is admissible under section 20 of the Act on Non-Contentious Proceedings, but is unfounded. The District Court was right to refuse the applicant all access to [M.], since this is not in the child’s best interest (sections 1711 and 1634 of the Civil Code). This court also takes the view that the District Court had no cause to permit exceptions for any specific area of life. It considers that the arguments advanced in the contested decision are correct. It regards it as important that the girl [M.] – who is, after all, thirteen years old – has stated clearly and for a long time that she wants no contact with her father. The applicant should accept this clearly expressed wish in his adolescent daughter’s interest and also his own. Only if he ceased to exert pressure on her might it one day be possible for them to resume contact. The court would also point out that access to [M.] on the strength of a court order could hardly be enforced against the child’s will.” 25. On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court. 26. On 19 January 1996 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s complaint.
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4. The applicant was born in 1966 and lives in Florence. 5. She is the owner of a flat, which she had let to P.M. 6. In a registered letter of 30 March 1987, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date. 7. In a writ served on the tenant on 3 February 1988, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. 8. By a decision of 29 February 1988, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 March 1989. 9. On 5 April 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. 10. On 15 April 1989, the applicant served notice on the tenant requiring him to vacate the premises. 11. On 8 May 1989 she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 June 1989. 12. Between 7 June 1989 and 9 June 1998 the bailiff made eighteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 13. On 30 June 1999 the applicant recovered possession of the flat. | [
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8. The applicant was born in 1950 and lives in Ljubljana, Slovenia. 9. On 24 April 1992 the applicant's restaurant and adjacent house in Novigrad (Croatia) were destroyed as the result of an explosion. 10. On 29 November 1994 the applicant filed an action for compensation with the Buje Municipal Court (Opcinski sud u Bujama), against the Republic of Croatia. 11. On 1 June 1995 the court pronounced judgment awarding the applicant 1,911,000.24 Croatian Kunas (HRK) in compensation together with interests and costs. 12. On 17 January 1996 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for compensation for damage resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation compensation for damage resulting from terrorist acts could not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter. 13. On 29 February 1996 the first instance judgment adopted on 1 June 1995 was sent to the parties. 14. On 11 March 1996 the Republic of Croatia appealed against the judgment of 1 June 1995 asking the court to stay the proceedings pursuant to the above changes in law. 15. On 14 October 1996 the Pula County Court (Zupanijski sud u Puli) quashed the first instance judgment and remitted the case for a re-trial. It found that the first instance court had not adequately assessed whether the applicant's property was destroyed by an act which might be deemed to be a terrorist act. 16. On 9 February 1998 the Buje Municipal Court decided to stay the proceedings in accordance with the above legislation. 17. On 3 March 1998 the applicant appealed against that decision. He claimed that the 1996 Act was applied retroactively in his case. 18. On 4 May 1998 the Pula County Court upheld the first instance decision. 19. On 20 June 1998 the applicant filed a constitutional complaint challenging the constitutionality of the lower courts' decisions to stay the proceedings. He also asked the Constitutional Court to institute proceedings in order to examine the constitutionality of the Act on Changes of the Civil Obligations Act. 20. On 17 January 2000 the Constitutional Court declared the applicant's complaint inadmissible. It found that the applicant had filed a constitutional complaint against the County Court's decision of 4 May 1998 which upheld the Buje Municipal Court's decision to stay the proceedings concerning the applicant's claim for compensation. However, according to the Constitutional Act on the Constitutional Court an applicant may file a constitutional complaint only against a final decision concerning any proceedings. The court found that the contested decision was not final since it represented a mere procedural decision and since the proceedings were still pending. It did not give any reply to the applicant's request to institute proceedings in order to examine the constitutionality of the contested laws. | [
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8. The applicant company is owned by Mr Smail Smailagić who lived in Banja Luka, which is situated on the territory of the present day Republika Srpska, a part of Bosnia and Herzegovina, until 15 May 1992 when he fled to Croatia and went to live in Porat-Červar. 9. On 13 August 1992 the Croatian Military Police requisitioned a vehicle belonging to the applicant company. 10. According to the Government the vehicle had been requisitioned by the military authorities from Bosnia and Herzegovina. Upon the request by the military authorities from Bosnia and Herzegovina for the return of vehicles which had been requisitioned in Bosnia and Herzegovina for military purposes, in case that they were located in Croatia, the Croatian Ministry of Defence conferred the applicant company's vehicle after having found it. The vehicle was conferred to the Bosnian authorities on 19 August 1993 and has ever since been in their possession. 11. According to the applicant the vehicle was requisitioned by the Croatian authorities and conferred to the Croatian para-military forces in Bosnia and Herzegovina, the so-called Croatian Defence Council (Hrvatsko vijeće obrane). The applicant company repeatedly requested the Croatian Defence Council to return the vehicle, but to no avail. 12. On 11 October 1993 the applicant company filed a civil claim for damages in the amount of 15,600 German Marks (DEM) against the Republic of Croatia, with the Zagreb County Commercial Court (Okružni privredni sud u Zagrebu). It appears that the case was subsequently transferred to the Zagreb Municipal Court (Općinski sud u Zagrebu). 13. On 15 May 1995 the Republic of Croatia filed its reply denying the plaintiff's claim. It requested the court to stay the proceedings until the end of war in Croatia. It stated further that the vehicle had been requisitioned only temporarily for needs of the army and would be returned to the applicant company after the war. 14. At the hearing on 14 September 1995 the applicant company specified the claim for damages seeking 58,000 Croatian Kunas (HRK). 15. On 12 March 1998 the applicant company requested the Ministry of Justice to speed up the proceedings. 16. On 13 July 1998 the court decided that an expertise be carried out in order to establish the value of the vehicle in question. The applicant company was invited to pay an advance for the costs of the expertise. 17. On 31 August 1998 the case-file was assigned to an expert who submitted his opinion on 5 October 1998. 18. It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company's legal status was quite old. 19. On 4 May 1999 the court invited the company's representative to submit a new excerpt from the relevant registry. 20. The applicant company's legal representative informed the court that he no longer represented the applicant. 21. On 5 July 1999 the applicant company requested the court to schedule a hearing. 22. On 19 July 1999 the applicant company's representative submitted an uncertified excerpt from the Banja Luka Court's registry dating from 1990. 23. On 25 August 1999 the court invited the applicant to submit a new excerpt, not older than six months, showing that Mr Smailagić was entitled to represent the applicant company. 24. On 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed. 25. On 10 December 1999 the court stayed the proceedings pursuant to the above change in law. 26. On 29 December 1999 the applicant company appealed against the above decision claiming that the Zagreb Municipal Court erred in its application of the law as the vehicle in question was not taken by any member of the Croatian army or police acting in an official capacity but exclusively for the needs of the Croatian Defence Council, a military formation of Bosnia and Herzegovina, operating in that country. 27. It appears that on 15 November 2000 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. However, the Constitutional Court has not yet adopted any decision. 28. On 8 May 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the Zagreb Municipal Court decision of 10 December 1999. 29. On 16 June 2001 the applicant company filed a request for revision with the Zagreb Municipal Court, repeating its arguments from the earlier appeal. On 28 June 2001 the Zagreb Municipal Court rejected the above request as inadmissible. It found that the Civil Procedure Act (Zakon o parničnom postupku) allows a party to file a request for revision only against a final decision of an appellate court while the decision of the Zagreb County Court did not represent a final decision in that case. 30. On 21 July 2001 the applicant company appealed against the Municipal Court's decision. 31. On 2 October the Zagreb County Court dismissed the appeal. | [
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9. On 31 December 1948 the applicants left the former Czechoslovakia clandestinely. Since 1954 the first applicant has been a permanent resident of France, where he was naturalised in 1968, while keeping Czechoslovak nationality. The second applicant settled in the United States of America in 1949. On 2 April 1958 he obtained American nationality, automatically losing Czechoslovak nationality in accordance with the bilateral treaty of 1928 on naturalisation. On 9 November 1999 he acquired Czech nationality. 10. After the applicants had emigrated all their immovable property, namely four houses in Prague, a detached house and adjoining land in Želízy, together with movable property in the shape of 1,200 books from the library of the famous singer Ema Destinnová (Emmy Destinn), were seized and administered by the local communist authorities. On 1 July 1955 the Klatovy People's Court (lidový soud) ordered the confiscation of this property. 11. After the change of regime in 1989 the applicants began to take steps to recover their former possessions. 12. On 17 November 1992 (9 December 1992 according to the Government) the first applicant brought proceedings in the Mělník District Court (of over) for recovery of the land in Želízy, under the Land Reform Act (Law no. 229/1991.
... 20. On 24 May 2000 ... the District Court gave judgment, dismissing the action brought by the first applicant to prove that he was the owner of the land in Želízy. 25. On 5 November 2001 the Prague Regional Court (krajský soud) set aside the first-instance judgment and remitted the case to the District Court.
... 27. On 22 May 2002 the District Court again dismissed the applicant's action, noting that he had not corrected its procedural defects in the time allowed.
... 29. On 4 September 2002 the Regional Court dismissed the applicant's appeal of 10 June 2002; the Government asserted that the case was finally concluded on 2 October 2002. 30. On 18 October 1995 (23 October according to the Government) the second applicant brought an action for recovery in the Mělník District Court against the current owners of the detached house and land in Želízy.
... 35. On 5 April 2000 the District Court gave judgment on the merits, dismissing the second applicant's action. The judgment became final on 5 July 2000. 36. On 17 October 1995 (25 October according to the Government) the second applicant brought an action against the Prague 7 District Office for recovery of the houses under Laws nos. 87/1991 and 119/1990.
... 39. At the end of the hearing on 5 March 1998 the District Court dismissed the applicant's action on the ground with that he was not a Czech national and was therefore not entitled to obtain recovery of the houses he claimed. 40. On 19 June 1998 the applicant appealed to the Prague Municipal Court (městský soud), arguing that the condition of Czech nationality was of negligible importance, since he had been a Czech citizen at the time when his property was confiscated.
On 9 November 1999, in accordance with Law no. 193/1999, he obtained a certificate of Czech nationality, issued by the Prague 7 District Office, and became on that date a citizen of the Czech Republic. 41. On 9 November 2000 the applicant brought a new action against the district of Prague 7 seeking recovery of half of the houses concerned. A hearing was set down for 6 August 2002. 42. On 10 January 2002 the Prague Municipal Court dismissed the second applicant's appeal of 19 June 1998 against the judgment of the Prague 7 District Court. The decision concerned was thus upheld and became final on 11 February 2002. | [
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8. The first applicant was born in 1930 and lives in Salonika. The second applicant is a commercial partnership with its registered office in Pieria (northern Greece). 9. On 7 July 1994, by means of a joint decision of the Minister of Finance and the Minister of Public Works (no. 1078361/4744/0010), the Greek State expropriated property covering a total surface area of 455,024 sq. m, with a view to improving certain sections of the main road between the towns of Platamonas and Katerini in Pieria. The expropriation affected 2,455.12 sq. m of land belonging to the first applicant and 2,401 sq. m belonging to the second (entered in the land register as plots nos. 64 and 214 respectively). The administrative authorities decided that the applicants should not receive any compensation in respect of 716.40 sq. m of plot no. 64 and 490 sq. m of plot no. 214, as they were deemed to have derived benefit from the construction of the road. 10. On 7 June 1995 the State applied to the Katerini Court of First Instance for an assessment of the provisional unit amount of compensation per square metre. The first applicant was not summoned to appear in court. 11. On 14 June 1996 the court determined the provisional amount of compensation for plot no. 214. It also assessed the amount of special compensation for the unexpropriated parcels of land at 100,000,000 drachmas (GRD) (judgment no. 118/1996). 12. The applicants subsequently applied to the Salonika Court of Appeal for the assessment of the final amount of compensation for the expropriation. In their observations, they submitted that the irrebuttable presumption in law that owners of property fronting a public highway derived benefit from the expansion of the highway was contrary to Article 17 of the Constitution and Article 1 of Protocol No. 1 to the Convention. 13. In an interlocutory decision of 18 June 1997 the Court of Appeal observed that, in assessing the unit amount of compensation for property expropriated with a view to building a main road, the court merely determined the amount, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs pursuant to section 1 of Law no. 653/1977. It ordered an expert assessment of the real value of the expropriated property (judgment no. 2380/1997). 14. On 29 September 1999 the Court of Appeal assessed the final unit amount of compensation for the expropriation of plots nos. 64 and 214 at GRD 8,000 per square metre. It also assessed the final amount of special compensation for the unexpropriated parcels of plot no. 64 at GRD 45,142,390 (judgment no. 2741/1999). 15. On 18 March 2000 the applicants appealed on points of law. They argued that the fact that the Court of Appeal had merely determined the amount of compensation for the expropriation, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs, was contrary to Article 17 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 16. In a judgment of 23 March 2001 the Court of Cassation dismissed the appeal, at least in so far as it concerned the present case (judgment no. 480/2001). | [
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7. The applicant was born in 1949 and lives in Dublin. He is a pastor attached to the Irish Faith Centre, a bible based Christian ministry in Dublin. 8. In early 1995 the Irish Faith Centre submitted an advertisement to an independent, local and commercial radio station for transmission. The text of the advertisement read as follows:
“What think ye of Christ? Would you, like Peter, only say that he is the son of the living God? Have you ever exposed yourself to the historical facts about Christ? The Irish Faith Centre are presenting for Easter week an hour long video by Dr Jean Scott Phd on the evidence of the resurrection from Monday 10th - Saturday 15th April every night at 8.30 and Easter Sunday at 11.30am and also live by satellite at 7.30pm.” 9. The radio station was prepared to broadcast the advertisement. However, in March 1995 the Independent Radio and Television Commission (“IRTC”) stopped the broadcast pursuant to Section 10(3) of the Radio and Television Act 1988 (“the 1988 Act”). This ruling did not affect the later transmission of the video by satellite. 10. The applicant applied for leave to take judicial review proceedings. He cited the IRTC and the Attorney General as respondents and submitted that the IRTC had wrongly construed Section 10(3) and, alternatively and mainly, that if the IRTC had correctly applied section 10(3) of the 1988 Act, that provision was unconstitutional. 11. By judgment delivered on 25 April 1997, the High Court found that the IRTC had not infringed section 10(3) of the 1988 Act. It further considered that the unspecified right to communicate guaranteed by Article 40(3)(1) of the Constitution was at issue since the advertisement had, as its principal purpose, the communication of information. However, it found that section 10(3) was a reasonable limitation on the right to communicate and that there were good reasons in the public interest for the ban. 12. In so concluding the High Court judge stated as follows:
“I think that it would have been reasonable for [Parliament] to take the view that in Irish society religious advertising on commercial radio might be undesirable in the public interest. ... It is sufficient, in my view, if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which [Parliament] may well have taken into account. ... a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any [Parliament] to have regard to the type of advertisements which might be permitted. The impugned Section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate.
Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian. The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality. I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public.” 13. The Supreme Court rejected the applicant's appeal by judgment dated 28 May 1998. The judgment began by noting that:
“One can best glean the policy of the Act of 1988 by looking at the three kinds of prohibited advertisement collectively. One might get a false impression by singling out one kind of banned advertisement and ignoring the others. All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. [Parliament] was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover, [Parliament] may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.” 14. The Supreme Court considered that religion was a private and a public affair and that the impugned provision was a restriction of the applicant's right freely to communicate and of his right to freedom of expression (Articles 40(3) and 40(6)(1) of the Constitution, respectively) which rights could be limited in the interests of the common good. The court cited with approval previous case-law which considered that the balance found by parliament between the individual rights and the common good should prevail:
“... unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.” 15. The court went on to point out that the real question was whether the limitation imposed upon the various constitutional rights was proportionate to the purpose which parliament wished to achieve. Again quoting with approval previous case-law, it described the principle of proportionality as follows:
“In considering whether a restriction on the exercise of rights is permitted by the Constitution the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights and by the Supreme Court of Canada in the following terms. 'The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be such that the effects on the rights are proportional to the objective.” 16. The Supreme Court found that section 10(3) of the 1988 Act complied with this test - the restriction was “minimalist”, the applicant had the right to advance his views in speech or writing or by holding assemblies or associating with persons of like mind as himself; he had no lesser right than any other citizen to appear on radio or television; and the only restriction placed upon his activities was that he could not advance his views by a paid advertisement on radio or television. As regards the blanket nature of the ban and the applicant's argument that it would have been possible to introduce a more selective administrative system whereby inoffensive religious advertisements would be permitted, the Supreme Court noted:
“No doubt this is true. But [parliament] may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements, in this sensitive area, would be likely to cause offence and which not.” 17. The Supreme Court went on to conclude that:
“It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.” 18. In any event, once the impugned provision was broadly within the competence of parliament and parliament had respected the principle of proportionality, the Supreme Court indicated that it was not for it to interfere simply because it might have made a different decision. The presumption of constitutionality of the legislation had not therefore been rebutted and the applicant's appeal could not be allowed. | [
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8. The applicant was born in 1947 and lives in Bydgoszcz, Poland. 9. On 20 August 1992 the applicant filed with the Bydgoszcz Regional Court (Sąd Wojewódzki) an action in which he requested that a certain B. M., who had failed to comply with her own declaration to exchange a defective car sold to the applicant for a new one, pay him the amount equivalent to the value of that car. 10. The court held hearings on 14 October 1992, 13 January, 10 February, 5 April, 19 May and 23 June 1993. It ordered an expert opinion. 11. On 29 June 1993 the applicant challenged the participation in the proceedings of an expert. On 6 October 1993 he lodged a complaint about the fact that the case-file had been handed over to the expert. 12. On 29 October 1993 the court requested the expert to submit his opinion in due time. 13. On 7 November 1993 the expert submitted his opinion. On 18 November 1993 the applicant's lawyer challenged that opinion. On 24 November 1993 the applicant requested the court to dismiss the testimony given by certain witnesses. 14. On 25 March 1994 the Regional Court dismissed the applicant's request for an interim measure. 15. At the hearing held on 25 March 1994 the applicant rejected a friendly-settlement proposal made by the defendant. The court ordered a supplementary expert opinion. 16. On 10 May 1994 the applicant challenged the expert opinion. 17. On 30 May 1994 his lawyer requested the court to order the defendant to submit the original of a bill of lading. 18. The court held a hearing on 31 May 1994. Between June and August 1994 the court verified the authenticity of that bill of lading. 19. At the hearing held on 30 August 1994 it imposed a fine on the witness who had failed to appear before the court. 20. Further hearings were held on 30 August and 28 October 1994. 21. On 7 November 1994, at the applicant's request, the court asked the Katowice Customs Office to submit certain documents concerning the customs clearance of the car. 22. On 22 November 1994 a hearing was adjourned because of the absence of the defendant's lawyer. 23. The court held hearings on 27 January, 11 April and 9 May 1995. 24. According to the applicant, the hearings scheduled for 29 August and 15 December 1995, as well as 16 February 1996, were adjourned due to the defendant's failure to appear before the court. The Government submit that the court did hold those hearings. 25. On 30 October 1995 the hearing was adjourned, according to the applicant, because of the applicant's illness and the defendant's absence. The Government submit that it was adjourned because of the presiding judge's illness. 26. Hearings took place on 12 April, 25 April, 10 May, 3 June and 28 June 1996. The hearing of 25 April 1996 was held at the defendant's home, because of her illness. On 3 June 1996 the court refused the applicant's request for an interim measure. 27. The hearing scheduled for 27 September 1996 was adjourned because of the judge's illness. 28. On 19 November 1996 the court adjourned a hearing as none of the parties had been duly informed about it. 29. On 15 January 1997 the applicant extended his claims. 30. At the hearing held on 17 January 1997 the expert submitted an additional opinion. 31. On 1 September 1997 the court refused the applicant's request to correct the minutes of a hearing. 32. The court did not schedule any hearings between January and October 1997, when it scheduled one for 16 January 1998. 33. In October and November 1997 the case-file was transferred to the Bydgoszcz District Prosecutor (Prokurator Rejonowy). 34. The applicant submits that the hearing scheduled for 16 January 1998 was adjourned due to the defendant's failure to appear. The Government submit that it was held on that date. 35. On 3 April 1998 the court held a hearing. 36. On 17 April 1998 it stayed the proceedings until the completion of criminal proceedings against the defendant and certain witnesses. The court considered that the outcome of the civil proceedings would depend on the criminal courts' findings. On the same day it ordered an interim measure. The applicant's lawyer appealed against the decision to stay the proceedings. On 3 July 1998 the Gdańsk Court of Appeal dismissed that appeal. 37. In the letter of 14 October 1999 the Ministry of Justice informed the applicant that it had recommended the President of the Bydgoszcz Regional Court to reconsider the grounds of the decision to stay the proceedings and requested that the proceedings be taken under his administrative supervision. 38. On 15 October 1999 the applicant requested that the proceedings be resumed. In reply he was informed that his request could not be for the time being examined, because the court could not examine the case-file of the criminal proceedings. 39. His subsequent similar request was declined by the court's decision of 18 November 1999. On 10 December 1999 the Gdańsk Court of Appeal dismissed his appeal against that decision. 40. On 22 November 2002 the Regional Court resumed the proceedings. On the same date it discontinued them. 41. On 5 July 1993 the applicant requested the prosecution authorities to institute an investigation concerning the defendant and her husband, submitting that they had given false testimony in the civil proceedings and had used falsified documents. 42. On 31 March 1994 the Bydgoszcz District Prosecutor discontinued the investigation, considering that the alleged offence had not been committed. The applicant's appeal was dismissed by the Bydgoszcz Regional Prosecutor (Prokurator Wojewódzki). 43. In reply to the applicant's complaint the Gdańsk Appellate Prosecutor (Prokurator Prokuratury Apelacyjnej) ordered the re-opening of the investigation. 44. Between 1994 and 1997 the Bydgoszcz District Prosecutor issued five decisions either discontinuing or staying the investigation, but they were all quashed by the Bydgoszcz Regional Prosecutor. 45. On 15 November 1997 the District Prosecutor submitted a bill of indictment to the Bydgoszcz District Court (Sąd Rejonowy). 46. On an unspecified date additional criminal proceedings were initiated on the basis of the material gathered in those proceedings. They concerned a court expert and certain witnesses who had taken part in the civil proceedings. 47. The proceedings against the witnesses were terminated in 1999. They were convicted of forgery. 48. On 10 October 2001 judgment was given in the criminal proceedings against a court expert. He was convicted of giving false testimony in the civil proceedings. On 19 June 2002 the Regional Court amended that judgment. 49. On 4 March 2002 the Bydgoszcz District Court convicted the defendant in the civil proceedings, B. M., and her husband. | [
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8. The applicant was born in 1940 and lives in Warsaw. 9. In March 1982 the applicant became divorced. 10. On 30 September 1982 his former wife filed with the Warsaw District Court (Sąd Rejonowy) a request for the partition of the property of the spouses. The request related to 147 items and a shared flat in a housing co-operative building. 11. The Government submitted that between 27 December 1982 and 2 December 1987 the court held 19 hearings. The applicant stated that one of the hearings referred to by the Government had never been held and four others had been only in camera sittings. 12. In 1985 and 1986 the court ordered six expert opinions. According to the Government, on an unspecified date after 2 December 1987 the case-file was lost. 13. In 1992 the applicant lodged a further request for the partition of the property. He informed the Warsaw District Court that the place of residence of his former wife was unknown and it was impossible to bring her before the court. The applicant maintained that he had had difficulties in establishing her place of residence. The court appointed a guardian ad litem for her. On 22 May 1992 it gave judgment. 14. The Government submitted that after the completion of those proceedings the applicant had formally reported his former wife's departure to Germany. 15. In December 1992, after her return to Poland, the applicant's former wife requested the re-opening of those proceedings, relying on the applicant's misinformation as to the alleged lack of knowledge of her residence in Germany. On 22 July 1993 the Warsaw District Court quashed the decision issued in those proceedings. 16. In January 1994 the lost case-file was found. The court held hearings on 14 January, 4 March, 16 May, 5 August and 14 November 1994. The Government submitted that the applicant had failed to attend the hearings of 14 January, 4 March and 16 May 1994. The applicant maintained that he had been present at the hearing on 14 January 1994 and that his absence on 16 May 1994 had been justified. 17. The court held a hearing on 12 June 1995. 18. On 18 July 1995 the court ex officio made attempts aimed at converting the disputed flat into smaller ones. Between July 1995 and January 1996 it enquired with various authorities as to possible solutions to the dispute. 19. The hearing scheduled for 30 September 1996 was adjourned because of the absence of the applicant's lawyer. The applicant submitted that his lawyer had had an operation on his heart. 20. Further hearings were held on 6 January, 14 April and 18 September 1997. According to the applicant, the hearing of 18 September 1997 was in fact an in camera sitting. 21. The applicant requested the adjournment of the hearing scheduled for 30 January 1998. 22. Subsequent hearings were held on 25 May 1998 and 25 February 1999, as well as on 7 January and 3 March 2000. 23. On several occasions the applicant's former wife failed to attend hearings or her lawyer failed to submit certain documents or pleadings. The court ordered expert opinions concerning the value of objects located in the flat of the applicant and his former wife, their cars and jewellery. 24. On 25 May 2000 the applicant learnt that the case-file had been lost again. It was subsequently found. 25. The applicant failed to attend the hearing scheduled for 18 December 2000. 26. According to the Government, the hearing scheduled for 19 April 2001 was adjourned at the applicant's request. He submitted that no hearing had been scheduled for that day. 27. The court held a hearing on 11 May 2001. 28. At the hearing held on 21 September 2001 it ordered an expert opinion. 29. Hearings were held on 11 February and 14 November 2002, as well as 17 January 2003. 30. On 31 January 2003 the court gave judgment. | [
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9. The applicant is a multinational company specialising, inter alia, in the wholesale of petrochemical products, as was Neste at the time of relevance to the case. 10. In light of submissions lodged by another company in the field – Suomalainen Energiaosuuskunta (“SEO”) – the Competition Office (kilpailuvirasto, konkurrensverket), on 11 October 1993, initiated proceedings before the Competition Council (kilpailuneuvosto, konkurrensrådet), requesting that Neste be ordered to cease abusing its dominant position on the Finnish market for motor engine fuel. In the view of the Competition Office the reductions in Neste's wholesale prices discriminated against some of its clients, thereby violating the 1992 Act on Competition Restrictions (laki kilpailunrajoituksista, lag om konkurrensbegränsningar 480/1992). The Competition Office therefore requested that Neste be ordered to cease and desist from applying certain pricing criteria. 11. In a further submission of 11 February 1994 the Competition Office requested that an administrative fine (seuraamusmaksu, påföljdsavgift) be imposed. As a new fact the Competition Office referred to Neste's unwillingness to concede that it had been violating the relevant provisions and accordingly to change the price of fuel sold to SEO. 12. On 16 June 1994 the Competition Council held that Neste had abused its dominant position on the relevant market but found no reason to impose a fine on the company. Neste, SEO and the Competition Office all appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). Neste maintained that it did not hold a dominant position on the market in question and in any case had not been abusing it. SEO appealed in so far as the Competition Council had accepted certain of Neste's criteria for price differentiation. The Competition Office contended that a fine should have been imposed. 13. On 9 and 14 September 1994 Neste forwarded to the Competition Office its interpretation of the Competition Council's decision as to the pricing criteria to be applied in light of the latter's decision. On 17 October 1994 the Competition Office replied that its interventions were limited to questions of principle. It could therefore not pronounce itself on Neste's proposed interpretation regarding the acceptable pricing criteria. 14. On 14 and 30 November 1994 Neste again drew the Competition Office's attention to its difficulties in interpreting the Competition Council's decision. 15. In a submission to the Supreme Administrative Court dated 26 June 1995 Neste demanded equality of arms in the proceedings. Reference was made to a telephone conversation between Neste's representative and a legal officer of the Supreme Administrative Court from which it had transpired that a secret memorandum of the Competition Office dated 19 June 1995 had been filed with the Supreme Administrative Court. The memorandum discussed Neste's conduct following the Competition Council's decision. The document had been released to Neste by the Competition Office itself on 22 June 1995 in response to the company's request. 16. In a further submission to the Supreme Administrative Court dated 24 July 1995 Neste challenged the accuracy of the Competition Office's memorandum, including the conclusions drawn. Neste again objected to the Supreme Administrative Court's failure to hear it formally in respect of the Competition Office's observations and apparently other memoranda. 17. By decision of 30 November 1995 (reported in its 1995 Yearbook A, p. 246) the Supreme Administrative Court, without commenting on Neste's procedural objections of 26 June and 24 July 1995, upheld the Competition Council's decision in large part. The court found, inter alia, that Neste, being in a dominant position on the relevant market, could in principle have objectively justifiable grounds for treating its clients differently according to certain criteria. In the case under examination Neste had not, however, shown any convincing grounds for differentiating between its clients on any ground other than on the basis of the volume of fuel purchased. By applying other pricing criteria Neste had accordingly abused its dominant position. 18. Having concluded that a fine should have been imposed on Neste, the Supreme Administrative Court referred the fixing of its amount to the Competition Council. It further ordered that Neste's conduct after 16 June 1994, in respect of which the court had received “substantial new information”, was to be taken into account. The court declined to examine itself what significance should be given to that information. 19. The Supreme Administrative Court's case-file indicates that it deliberated on 22 and 30 May as well as on 14 June 1995. 20. On 4 December 1995 the Competition Council confirmed to the parties that the sole question which remained to be decided was the size of the fine to be imposed on Neste. In January 1996 the Competition Office proposed a fine in the amount of 100,000,000 Finnish Marks (FIM) (approximately 16,819,000 euros (EUR) ). This proposal was rejected by the Competition Council. The Competition Office then filed a new proposal in which the amount of the fine was maintained but on different grounds. 21. In the beginning of 1996 Neste's representative found in the Supreme Administrative Court's case-file a copy of further observations drawn up by the Competition Office and dated 6 March 1995. They bore a stamp indicating that they had been received by the Supreme Administrative Court on 8 March 1995. The Competition Office had forwarded a copy to the Competition Council but not to Neste. The observations sought to refute Neste's arguments by highlighting the salient points of a 1994 decision of the European Commission in the case Texaco v. Norsk Hydro which the Competition Office argued supported the Competition Council's decision of 16 June 1994. The Supreme Administrative Court had not heard Neste in respect of those observations. 22. Following an oral hearing the Competition Council, by decision of 30 October 1996, fixed Neste's fine at FIM 2,000,000 (about EUR 336,000). It noted that Neste's pricing practice from 1 January to 8 February 1993 had clearly discriminated against SEO and had been found to be unlawful under the 1992 Act. While the prohibited pricing practice had not been significant in nature, it had not been so insignificant as to justify a waiver of the fine. 23. As regards Neste's conduct from 17 June 1994 to 30 November 1995 the Competition Council found that it had not deviated to such an extent from its decision of 16 June 1994 as to justify the imposition of a fine. In addition, Neste's attempts to obtain approval of its amended pricing practice had been in vain, since the Competition Office had failed in its obligation to direct and supervise the implementation of that decision. Accordingly, no fine was imposed for Neste's conduct during that period. 24. On 5 July 2000 the Supreme Administrative Court refused, in extraordinary proceedings, the applicant company's request for an annulment of its decision of 30 November 1995 in the ordinary proceedings under the 1992 Act. The court found that no procedural error had taken place and reasoned, inter alia, that in so far as it had ordered that the fine to be imposed on Neste should take account of its conduct between the Competition Council's decision of 16 June 1994 and the court's decision of 30 November 1995, it had not become evident that the court had based itself on material in respect of which Neste had not been heard. Moreover, the court had expressly declined to draw any conclusion as to whether the supplementary information received by it should be taken into account when considering the amount of the fine to be imposed. | [
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6. The applicant was born in 1940 and lives in Warsaw, Poland. 7. On 2 October 1984 the Warsaw District Court (Sąd Rejonowy) declared that the applicant should inherit his mother’s estate. On an unknown date in 1985 the applicant’s step-father M.O. filed an application with the Warsaw District Court for division of their marital property. 8. On 9 June 1988 the court gave a decision. On 4 April 1989 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant’s further appeal. On 15 November 1989, on an extraordinary appeal lodged by the General Prosecutor, the Supreme Court (Sąd Najwyższy) set aside both above decisions and remitted the case to the court of first instance. 9. On 8 June 1992 the court stayed the proceedings. They were later resumed on 4 November 1996. 10. Between 6 May 1998 and 15 November 2002 the trial court held nine hearings. 11. The proceedings are pending before the Warsaw District Court. | [
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8. The applicant is an Icelandic national, born in 1971 and living in Iceland. 9. According to the applicant, around 1 a.m. on 13 May 1997 he, accompanied by 4 other persons, including Mr S.T.E., entered a night-club, named Vegas, in Reykjavík. After a while the applicant had an argument with a certain Mr S.S., whereupon the latter arm-locked the applicant's throat and both fell to the floor. A fight broke out involving S.T.E. and two of S.S.'s friends. Doorkeepers tried to stop the fight but S.T.E. knocked S.S. unconscious, following which he fell on his back and hit the back of his neck on the floor. The applicant and his companions left the night-club in a hurry for S.T.E.'s home. 10. When, shortly thereafter, the police officers arrived at the scene, a man was lying unconscious on a sofa in the innermost part of the premises. According to the summary of facts found in the national courts' judgments referred to below, the police officers had been told that he had been struck on the head and that four persons, three men and one woman, had attacked him, struck him, treated him roughly and kicked him in the head. The person who was said to be mainly responsible was nicknamed Silli, a reference to the applicant. The persons in question were also said to have beaten two of S.S.'s friends, resulting in visible injuries. The former had then left the night-club. The police reports recording the witness evidence were not entirely clear. Investigators of the National Bureau of Investigation had not been called immediately and arrived at the scene after the witnesses had left. 11. While an ambulance took S.S. to the emergency ward of Reykjavík City Hospital his heart stopped beating and his breathing ceased. The heartbeat was recovered after resuscitation in the ambulance, but on arrival at the ward S.S.'s pupils were still wide and unresponsive to light. The only injury noticed on first examination was a small haematoma at the back of the neck. A tomograph examination however revealed an extensive sub-arachnoidal haemorrage. Brain surgery was performed immediately, but the attempts to save his life were unsuccessful. S.S. died the following day. 12. An autopsy carried out on 15 May 1997 concluded that an extensive cerebral haemorrhage had been the cause of death. Moreover, according to the autopsy report, from a bruise on the hairy scalp in the neck region and a haematoma under the scalp, it could be deduced that an impact (i.e. a blow, a kick or a fall) causing a sharp movement to the brain could have resulted in a tear of an artery and the resultant haemorrhage. No evidence had been found to the effect that the haemorrhage could have been caused by disease. S.S. had been heavily under the influence of alcohol at the time he received the injury to his head. 13. On becoming aware the day after the incident that S.S. had been taken to hospital and was in a poor state, the applicant reported to the National Bureau of Investigation. During questioning he admitted to having had a scuffle with the deceased but he denied having kicked him in the head. A forensic examination was carried out on the applicant's shoes a few days after the event but no evidence was found to substantiate such an allegation. 14. On 15 July 1997 S.T.E. was indicted with having attacked S.S., and for having dealt him a heavy blow to the back of the head causing him to fall unconscious to the floor. The applicant was charged with having subsequently kicked S.S. in the head once as the latter lay on the floor, causing a massive cerebral haemorrhage leading to S.S.'s death. The charges were made under Article 218 of the Penal Code (No. 19/1940), as amended by Article 11 (Act 20/1981). 15. In the proceedings before it, the District Court of Reykjavík heard both defendants and 20 witnesses. The witness accounts relating to the incident diverged greatly and some of the witnesses changed the version they had previously given to the police. 16. By judgment of 19 September 1997, the District Court convicted and sentenced S.T.E. to 2 years' imprisonment and acquitted the applicant on the ground of lack of evidence. Its reasoning included the following observations:
“The accounts of the fight at the Vegas club diverge greatly but it has been established that it was of short duration and that it involved not only the defendants and the late S.S. but also others ... . The premises were rather badly lit with coloured and blinking lights. It is also to be borne in mind that many of the witnesses who have testified in this case were under the influence of alcohol, some of them heavily. It is also established that the deceased was heavily intoxicated.
The applicant has firmly denied having kicked S.S. in the head. S.T.E. has stated that, as S.S. was on all fours trying to stand up, the [applicant] had kicked him distinctly in the neck with the tip of his shoe. [S.T.E.'s] account is not consistent with any other statement and must be rejected. A witness has testified that [the applicant] kicked with the tip of his shoe on the back of the deceased's head as he lay on his side. Others have not ascribed such conduct to the [applicant] and the examination of his shoes fails to provide support for this testimony. Nor is [S.T.E.'s] statement ... supported by the nature of the injury on the deceased's neck and what has been found as regards the type of shoes the [applicant] was wearing. Bearing this in mind, and having regard to the [applicant's] firm denial, it has not been established that he kicked the deceased's head. He is therefore to be acquitted.
The defendant S.T.E. has also firmly denied having struck the late S.S. On the other hand V.R.T. has stated that a big, thickset man in his thirties, wearing a ... striped or brightly patterned ... garment, dealt a man in a blue shirt a blow behind his right ear, so that he fell forward. S.L. has stated that he saw S.T.E. strike S.S. high on his head. O.R.J. has stated that he saw a man ... strike the deceased on the head, at the rear or on the side. B.P. has described how a man in a light coloured shirt and jeans struck another man to the side of his eye with an audible impact and has stated that the man fell on the floor, again with an audible impact. Despite the fact that their testimonies are inconsistent, they all agree that the man stricken did not stand up again. The District Court finds it established that ...the defendant S.T.E. dealt the late S.S. one blow to his head in the course of the fight, so that he fell on the floor and lay there unconscious. Nothing can be determined as to whether the cerebral haemorrhage was a result of the blow or the fall or both, but the defendant is criminally liable for these tragic consequences. He is therefore guilty of a violation of Article 218 (2) of the Penal Code.” 17. On 23 September 1997 the Public Prosecutor appealed against the applicant's acquittal to the Supreme Court and requested his conviction of the charges in the indictment and a sentence, as well as a heavier sentence for S.T.E. The Prosecutor further stated: “[The defendants were] therefore summoned to appear before the Supreme Court when the case will be tried there, to hear the charges, to respond on their behalf and to accept judgment. They may not expect to be served any further notification or summons.”
In his supplementary observations of 30 April 1998, the Prosecutor reiterated the District Court's finding that the co-defendant S.T.E. had dealt the victim S.S. one blow in his head in the course of the fight so that he fell on to the floor and lay there unconscious, and that nothing could be determined as to whether the cerebral haemorrhage was the result of the blow or the fall or both. He pointed out that defendant S.T.E had stated that the applicant had kicked S.S. in the head when he was trying to stand up and that witness E.P. had definitely stated that the applicant had kicked the back of S.S.' head as he lay on the floor. Their statements related to the same kicking of S.S.'s head. The discrepancy in their statements could not justify rejecting S.T.E's statement on this point. The grave and sustained physical assault by both defendants led to the haemorrhage and the victim's sudden death. 18. In a writ of 5 May 1998, the applicant's defence counsel replied that it could not be seen from the Prosecutor General's submissions that he considered that the District Court had incorrectly assessed the evidence, as he did not request the Supreme Court to quash the lower court's judgment and remit the case to the latter. Counsel for the defence further made detailed arguments against those made by the Prosecutor General on the witness evidence, stressing that the evidence of the co-defendant S.T.E. was unreliable as he obviously had a personal interest in the applicant being found guilty of the charges. 19. After having heard the prosecution and counsel for the applicant, but not the applicant himself or any witnesses, the Supreme Court, by judgment of 22 May 1998, convicted the applicant of the initial charge and sentenced him to 2 years and 3 months' imprisonment. Moreover, it upheld the District Court's sentence of S.T.E. The Supreme Court's case-file included transcripts of the oral evidence before the District Court and all documents submitted in the proceedings before the latter, such as police reports concerning the incident at the Vegas club, statements of witnesses provided to the police at the investigation stage, autopsy reports and other results from the medical examination of the deceased, as well as a medical report on the applicant, and photographs of the applicant, his co-defendant and the other five persons who were involved in the fight and who later became witnesses in the case. It also included photographs of the shoes which the applicant was wearing that night and photographs and drawings of the premises where the fight took place at the Vegas club. There were, moreover, several other documents, such as the applicant's criminal record. 20. The Supreme Court held:
“... the District Court's finding that the deceased died from a sub-arachnoidal haemorrhage resulting from an impact or impacts on the head is upheld. The only external injuries observed on his head were a bruise on the hairy scalp on the neck and a haematoma under the scalp. The injury was not shown to have been caused by a heavy impact or impacts on the neck and it has been sufficiently determined that a relatively light impact could cause such injury. The fact that the deceased was heavily intoxicated is also of significance.
Despite the fact that the [witness] statements ... are somewhat lacking in clarity, the Supreme Court does not find it imprudent to conclude that both defendants, together with S.L., assaulted the deceased. The latter witness stated to the police, and in fact confirmed in court, that defendant S.T.E. struck the man on his head. This is supported by the statements of witnesses U.R.T. and O.R.J. and also by S.T.E.'s own statement that he struck one fellow. However, it must be borne in mind that E. traces an injury to the applicant, and E.P. traces an injury to S.L. Accordingly, the Supreme Court finds it proven that S.T.E. dealt S.S. a blow on his head, with the result that he fell onto the floor. In witness E.P.'s statement, which to a certain extent is supported by doorkeeper G.Ó's statement and the initial statements of those who were present at the scene to the effect that the deceased was kicked in the head, it has also been sufficiently established that the applicant subsequently kicked S.S. in the head while he was lying on the floor.
In view of all the above evidence it has been proven that both defendants attacked the deceased, who was so much under the influence of alcohol that he was unable to fight or to protect himself from falling. No other person can be considered to have inflicted on S.S. the injury that led to his death. The defendants ought to have been aware that their assault could result in serious injury. Considering the act and its consequences which are to be regarded as unintentional, both defendant's conduct is deemed to violate Article 218 (2) of the Penal Code ... . According to the autopsy report and the statement of the doctor performing the autopsy ... the consequences of the assault were more serious than what was to be expected. This must be taken into account in sentencing.”
The minority (of one judge) stated:
“The witnesses' statements relating to the events at the Vegas club on 13 May 1997 ... are described in the majority opinion and in the District Court's judgment. The description includes the part played by the defendant S.T.E., who denied the charges. In spite of his denial, I find it established that, with his fist, he dealt [S.S.] ... a blow on the back of the latter's head causing him to fall onto the floor where he subsequently lay motionless. An injury was found on the upper part of the neck. I consider that a judgement shall be rendered on the basis that this act perpetrated by defendant S.T.E. led to [S.S.'s] death. ... I concur with the other judges that the penalty of this defendant shall be 2 years' imprisonment.
The [applicant] also denied the charges. One witness firmly stated that he saw this defendant kick the deceased in the head as he lay in the floor. Another witness, a doorkeeper at the Vegas club, testified that he had seen someone kick the man as he lay on the floor. To him this seemed a kick, but he could not state who kicked, nor where the kick hit the body. The witness did not mention this when making his statement to the police on 14 May 1997. When questioned again by the police 2 days later, the witness was quoted as saying: 'This was a fight where he saw hands beating and feet kicking, but he could not determine who beat whom or whether somebody kicked somebody'. Considering the case as a whole, the charges are not borne out by this witness statement. I find that the prosecution has failed to establish the [applicant's] guilt and that his acquittal by the District Court is therefore to be upheld.” | [
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6. The applicant was born in 1973 and lives in Warsaw, Poland. 7. On 20 May 1992 the prosecution authorities lodged with the Warsaw District Court ( Sąd Rejonowy) a bill of indictment against the applicant. He was charged with causing a traffic accident occasioning death and serious bodily harm. 8. The District Court held hearings on 6 May and 27 May 1993. At the hearing held on 15 June 1993 the applicant was convicted as charged and sentenced to one year’s imprisonment suspended for three years. 9. On 23 November 1993, upon the applicant’s appeal, the Warsaw Regional Court (Sąd Wojewódzki) quashed the first instance judgment and remitted the case to the Piaseczno District Prosecutor (Prokurator Rejonowy), holding that a further investigation should be carried out. 10. On 1 October 1994 the Piaseczno District Prosecutor lodged a new bill of indictment with the Warsaw District Court. On 23 July 1997 the trial court remitted the case to the Piaseczno District Prosecutor, holding that the prosecution had not complied with the orders given by the Regional Court on 23 November 1993. 11. On 19 August 1997, upon the prosecutor’s appeal, the Warsaw Regional Court quashed this decision and ordered the District Court to proceed with the case. 12. The court held hearings on 11 December 1997, 3 March, 17 April and 2 June 1998. 13. On 9 April 1999 the Warsaw District Court gave judgment and acquitted the applicant on all charges. | [
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4. The applicant was born in 1965 and lives in Torre del Greco (Naples). 5. She is the owner of a flat in Torre del Greco, which she had let to M. R. 6. In a registered letter of 1 December 1987, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1987, and asked her to vacate the premises by that date. 7. In a writ served on the tenant on 1 September 1989, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 8. By a decision of 20 September 1989, which was made enforceable on 4 October 1989, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1992. 9. On 14 July 1993, the applicant made a statutory declaration that she urgently required the premises as accommodation for her son. 10. On 23 September 1993, the applicant served notice on the tenant requiring her to vacate the premises. 11. On 11 November 1993, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 22 November 1993. 12. Between 22 November 1993 and 16 April 1998 the bailiff made ten attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 13. On 4 March 1999, the applicant and the tenant entered into a new lease. | [
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9. The applicant was born in 1928 and lives in Druento (Turin). 10. In 1982 the Asti District Court made an order for the compulsory winding up of a commercial partnership formed by the applicant's wife in 1980. 11. On 16 November 1984 the same court made an order declaring the applicant personally bankrupt on the ground that he was a de facto partner. 12. On an unspecified date the trustee in bankruptcy filed a list of the bankrupt estate's debts with the registry. 13. On 21 November 1984 the judge assigned to the case gave the trustee in bankruptcy leave to intervene in proceedings that had been brought by a bank, SPT, for the forced sale of the applicant's house. 14. On 27 November 1984 he gave the trustee in bankruptcy leave to lodge tax appeals with the Tax Commissioners (Commissione Tributaria) in respect of sums claimed by the Turin and Asti tax authorities from the applicant's partnership. 15. Between 15 and 28 December 1984 the judge gave the trustee in bankruptcy permission to withdraw sums from the current account of the bankrupt estate for the payment, inter alia, of fees due to the trustee and an expert. 16. On an unspecified date in 1985 an initial attempt to sell the applicant's house at auction failed. 17. On 26 March 1985 the trustee in bankruptcy lodged a report. On 28 March 1985 the President of the District Court summoned G.Z. to appear in order to establish whether he was a partner of the applicant. G.Z. was heard on 26 April 1985. 18. On 10 June and 6 September 1985 the judge authorised the trustee in bankruptcy to make payments covering, inter alia, an expert's fees and the costs of publication of various notices. 19. On 21 January 1986 the judge gave permission for a lawyer to be instructed to act in the aforementioned proceedings concerning the applicant's house. 20. On 10 March 1986 the judge gave the applicant permission to draw his pension and on 21 March 1986 authorised the trustee in bankruptcy to settle proceedings that had been brought by S.G. for an order for the restitution of certain movables that were part of the bankrupt estate. 21. On 6 August 1986 the judge authorised the trustee in bankruptcy to enter into a loan agreement in respect of a building included in the bankrupt estate. 22. On 19 December 1986 the judge gave permission for a lawyer to be instructed to act in proceedings brought by P.C. contesting the bankrupt estate's liabilities. 23. On 23 March and 3 December 1987 the judge authorised the payment of various costs necessarily incurred in the proceedings. 24. On 16 December 1987 the trustee in bankruptcy sought an order for the replacement of the chairman of the Creditors' Committee following the latter's death. 25. On 22 December 1987 the judge refused permission for the sale by private contract (vendita a trattativa privata) of immovable property from the bankrupt estate on the ground that the Insolvency Act did not permit private sales of immovable property. 26. On 28 December 1987 the judge authorised the payment of a carer's allowance to the applicant's wife. 27. On 21 January 1988 he authorised the trustee in bankruptcy to return the deposit that had been paid on the proposed sale by private contract. 28. On 4 May 1988 the judge granted an application by O.D.S., one of the applicant's partners, for restitution of sums paid by a company, CPI, for services she had rendered. 29. On 28 June and 3 and 17 November 1988 he authorised the payment of advertising costs and taxes incurred on the sale of a building from the bankrupt estate. 30. On 8 February 1989 the judge authorised the payment of part of the fees of the lawyer acting in the proceedings brought by P.C. 31. On 3 March 1989 he authorised the payment of a tax liability and on 2 June 1989 of sums relating to the sale of the aforementioned building. 32. On 15 May 1991 he authorised the payment of the lawyer's fees incurred in the proceedings for the forced sale of the applicant's house and on 7 June 1991 the inclusion of a sum belonging to O.D.S. in the assets of the bankrupt estate. 33. On an unspecified date in September 1991 the trustee in bankruptcy intervened in tax enforcement proceedings (procedura di esecuzione esattoriale) brought by the Druento Tax Collector's Office (Esattoria) for the recovery of sums due on the sale of the applicant's house. Ultimately, the sale did not go ahead; on 13 November 1991 the judge authorised payment of the lawyer who had acted in the proceedings. 34. On 7 December 1991 the judge authorised the part payment of seniority pay (trattamento di fine rapporto) to the applicant. 35. On 28 April 1992 the judge appointed a valuer to value the applicant's assets and on 4 July 1993 authorised the payment of the costs thereby incurred. 36. On 12 May 1994 he appointed a new chairman to the Creditors' Committee at the request of the trustee in bankruptcy (who had made a like request on 16 December 1987). 37. On 10 January 1995 a further attempt was made to sell the applicant's house at auction, without success. 38. On 14 February 1995 the trustee in bankruptcy reported on the state of the proceedings at the judge's request. In particular, he said that all the assets of the bankrupt estate apart from the applicant's house had been sold. He also reserved the right to make a further proposal for the sale of the property at auction. 39. On 3 March 1995, in response to a request by the judge on 17 February 1995, the trustee in bankruptcy explained that there had been no partial distribution (ripartizione parziale) of the assets among the creditors because appeals were still pending before the Tax Commissioners. 40. As the applicant's house had been unlawfully occupied in the interim by D.L. and S.B., the judge ordered their eviction in a decision (decreto di rilascio) of 13 April 1995. On 14 April 1995 he asked the trustee in bankruptcy to produce a draft proposal for the partial distribution of the assets. 41. On 15 May 1995 the trustee in bankruptcy reported that the appeals to the Tax Commissioners had been successful and lodged a draft proposal for the partial distribution of the assets. Two days later he was authorised by the judge to transfer the current account of the bankrupt estate to another bank. 42. On 23 October 1995 the judge ruled that the draft proposal for the partial distribution of the assets could be implemented. 43. The following day D.L. moved out of the applicant's house. However, on an unspecified date S.B., who in the meantime had appealed against the judge's order of 13 April 1995, proposed to settle the dispute by undertaking to purchase the house. 44. On 14 December 1995 the trustee in bankruptcy filed a report. 45. On 6 February 1996 the judge fixed 19 April 1996 as the date for the auction of the applicant's house. 46. On an unspecified date the applicant sought a composition with the creditors. His application was declared inadmissible on 1 April 1996 on the ground that it did not satisfy the conditions laid down by section 124 of the Bankruptcy Act. 47. On 5 April 1996 the applicant asked the judge to refer to the Constitutional Court the question of the legitimacy of the system of proprietorial and personal disabilities to which bankrupts were subject and, in particular, sections 48, 49 and 50(3) of the Bankruptcy Act and Articles 350, 393, 407, 2382, 2417, 2488 and 2516 of the Civil Code. In a decision of 17 April 1996, the judge rejected that application as being manifestly ill-founded, holding that the legislature's decision to give the creditors' proprietorial interests precedence over those of the bankrupt did not entail a violation of the debtor's rights guaranteed by the Constitution. 48. In an application lodged with the registry on 17 April 1996, the applicant sought a stay of the order of 6 February 1996 for the sale of his house. 49. On 19 April 1996 the sale of the applicant's house by auction was adjourned to 21 April, when it was sold. 50. On 22 April 1996 the trustee in bankruptcy resigned. The District Court appointed a replacement the following day, who lodged a report on 11 October 1996. 51. On 3 May 1996 the applicant appealed to the Court of Cassation, with a view to having the order for the sale of his house set aside. According to information he has provided, his appeal was dismissed as being out of time. 52. On 12 December 1996 the judge appointed a valuer to carry out a valuation before title to the applicant's house was transferred to the successful bidder. The transfer was effected by a court order of 7 July 1997. 53. In a decision of 25 September 1998 the judge approved accounts that had been submitted by the trustee in bankruptcy. 54. On 5 October 1998 he authorised payment of the trustee in bankruptcy's fees. 55. On 23 March 1999 he approved the final proposal for the distribution of the assets, noting that the applicant had sufficient means after the sale of his house to honour his debts and bring the bankruptcy to an end. 56. On 17 July 1999 the judge terminated the bankruptcy. | [
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4. The applicant was born in 1967 and lives in Cave. 5. F.D. was the owner of a flat in Rome, which he had let to A.C. 6. In a writ served on the tenant on 20 October 1987, he communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 7. By a judgment of 30 April 1990, the text of which was deposited with the registry on 3 May 1990, the Rome Magistrate declared termination of the lease and ordered that the premises be vacated by 30 November 1990. The judgment was made enforceable on 24 September 1990. 8. On 17 January 1991, F.D. served notice on the tenant requiring her to vacate the premises. On 28 February 1991, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 April 1991. 9. Between 15 April 1991 and 27 May 1993, the bailiff made 13 attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, F.D. was not entitled to police assistance in enforcing the order for possession. 10. On an unspecified date the applicant became the owner of the flat. 11. On 28 February 1994, he served notice on the tenant requiring her to vacate the premises. 12. On 3 May 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 10 May 1994. 13. Between 10 May 1994 and 1 December 1998, the bailiff made 24 attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 14. Pursuant to Section 6 of Law no. 431 of 9 December 1998, the enforcement proceedings were suspended. 15. On 30 November 2001, the applicant recovered possession of the flat. | [
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9. The applicant was born in 1964 and is currently serving a sentence of imprisonment in HM Prison Craiginches, Aberdeen. 10. The applicant was arrested on a charge of attempted murder arising out of a high speed car chase which occurred in the early hours of 29 October 1995. On 30 October 1995, he was arrested again, interviewed and cautioned in respect of a separate incident of rape and assault which also occurred during the early morning of 29 October 1995. 11. On 31 October 1995, the applicant appeared in court in respect of the various road traffic offences and the attempted murder of a police officer. On 7 November 1995, he was fully committed and remanded in custody on those charges (of which he was later acquitted). 12. On 30 November 1995, the applicant appeared before the Sheriff and was committed in respect of the rape charge. 13. On 24 June 1996, the trial began in the High Court. On 2 July 1996, the applicant was convicted, by a majority verdict, of all charges and sentenced to 9 years 9 months' imprisonment. 14. On 8 July 1996, the applicant lodged an intention to appeal with the High Court sitting as an appeal court. On 20 August 1996, a Note of Appeal was lodged. 15. On 26 September 1996, a single judge refused the appeal. The applicant appealed. 16. On 31 October 1996, the Note of Appeal was allowed by three judges in restricted terms relating to the direction given by the trial judge on the special defence of alibi. 17. On 20 December 1996, the appeal was set down to be heard. According to the Government, it did not take place as the applicant refused to leave prison. The applicant stated that contrary to statutory authority the prison governor refused to allow him to leave the prison wearing civilian clothes instead of a prison uniform for the hearing. A further hearing was fixed for 22 May 1997. On that date, the Crown requested, and obtained, an adjournment as the Advocate Depute was engaged abroad. 18. On 19 November 1997, the appeal was set down to be heard. It was discontinued due to lack of court time and pressure of other business. It was noted that the appeal was complex and would last half a day. 19. On 13 and 14 January 1998, there was another appeal hearing. As the applicant's solicitor had become aware that the prosecution had never cited a witness, W. to appear at the trial, he had lodged and argued an additional ground of appeal on this point. Following argument, he sought to lodge further additional grounds of appeal. The appeal was continued to 13 February 1998 to enable him to do so. 20. On 13 February 1998, the High Court held that the failure to hear the evidence of W. resulted in unfairness and that further evidence should be heard. Lord Philip was designated as the judge to hear the evidence. On 28 May 1998, he fixed a date to take the evidence of W. On 20 August 1998, the hearing was adjourned as the applicant's counsel withdrew from acting on his behalf. 21. On 16 October 1998, W. gave evidence. In his note of 20 November 1998, Lord Philip gave his view of the credibility and reliability of W. The appeal was relisted for hearing on 8 January 1999 but the applicant's solicitors wrote to the court requesting that another date, possibly in the following week, be fixed due to the unavailability of counsel. 22. On 24 June 1999, the appeal was heard before the High Court. 23. On 22 July 1999, the judgment of the court was given by the Lord Justice General, Lord Rodger. It dismissed the applicant's appeal. | [
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4. The applicant was born in 1933 and lives in S. Donà di Piave (Venice). 5. He and his sister are the owners of a flat in Cava De' Tirreni (Salerno), which they had let to A.A. 6. In a writ served on the tenant on 27 June 1991, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 12 March 1993 and summoned the tenant to appear before the Cava De' Tirreni Magistrate (Salerno). 7. By a decision of 16 September 1991, which was made enforceable on 5 November 1991, the Cava De' Tirreni Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 12 March 1994. 8. On 9 April 1994, the applicant served notice on the tenant requiring her to vacate the premises. 9. On 23 April 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 16 May 1994. 10. On 16 May 1994, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order of possession. 11. The tenant asked the Cava De' Tirreni Magistrate to suspend the eviction proceedings. 12. On 28 July 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 13. Pursuant to Law no. 431/98, the enforcement proceedings were suspended until 26 December 2000. 14. On 28 February 2001, the applicant recovered possession of the flat. | [
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4. The applicant was born in 1947 and lives in Naples. 5. He is the owner of a flat in Naples, which he had let to C.E. 6. In a writ served on the tenant on 15 January 1987, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Naples Magistrate. 7. By a decision of 13 December 1987, which was filed with the registry on 16 December 1987, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1989. 8. On 30 November 1988, the tenant appealed to the Naples District Court. 9. By a decision of 26 October 1990, the court rejected the appeal and ordered that the premises be vacated by 30 June 1991. 10. On 27 December 1990, the applicant served notice of the judgment on the tenant. 11. On 5 July 1991, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 16 July 1991. 12. Between 16 July 1991 and 24 September 1992, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 13. On 19 February 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his father. 14. Between 25 February 1993 and 28 April 1998, the bailiff made eighteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 15. On 3 July 1998, the applicant repossessed the flat with the assistance of the police. | [
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7. The applicant was born in 1964 and is currently detained in HM Prison Brixton. 8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade. 9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address. 10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent. 11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend. 12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997. 13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984. 14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused. 15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use. 16. The applicant's trial commenced in January 1999. 17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“voir dire”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible. 18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code. 19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment. 20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal. 21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords. 22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000. | [
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4. The applicant was born in 1916 and lives in Viareggio. 5. The applicant is the owner of two flats in Camaiore, which he had let to V.D.B. and S.C. respectively.
1) The proceedings against V.D.B. 6. In a writ served on the tenant on 10 October 1990, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Lucca Magistrate. 7. By a decision of 18 October 1990, the Lucca Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. That decision was made enforceable on 21 January 1993. 8. On 3 February 1993, the applicant served notice on the tenant requiring him to vacate the premises. 9. On 24 February 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 20 October 1993. 10. On 30 June 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 11. Between 20 October 1993 and 23 May 1996, the bailiff made 13 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 12. In December 1996, the tenant vacated the premises.
2) The proceedings against S.C. 13. In a writ served on the tenant on 10 October 1990, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Lucca Magistrate. 14. By a decision of 18 October 1990, the Lucca Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. That decision was made enforceable on 21 January 1993. 15. On 3 February 1993, the applicant served notice on the tenant requiring him to vacate the premises. 16. On 24 February 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 20 October 1993. 17. On 30 June 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter. 18. Between 20 October 1993 and 13 January 1997, the bailiff made 17 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 19. In February 1997, the tenant vacated the premises. | [
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10. The applicant, an Italian national born in 1934, was the general secretary of the Italian Socialist Party (PSI) from 1976 to 1993. From 1983 to 1987 he was Prime Minister of Italy. As of April 1994 (according to the applicant) or May 1994 (according to the Italian authorities), he lived in Hammamet (Tunisia). 11. The proceedings to which this application relates were part of the criminal proceedings brought by the Milan Public Prosecutor's Office during the so-called “clean hands” (mani pulite) campaign. 12. Between January and October 1993, the Milan Public Prosecutor issued twenty-six notices of prosecution (avvisi di garanzia) in respect of the applicant, in particular for corruption, dishonest receipt of money by a public officer, concealment of dishonest gain and offences against the legislation on the financing of political parties. 13. On 10 May, 10 September 1993 and 7 May 1994 the Rome Public Prosecutor also issued notices of prosecution in respect of the applicant for dishonest receipt of money by a public officer, offences against the legislation on the financing of political parties, corruption and misuse of public office. 14. The prosecutions against the applicant and other figures in politics, business and public institutions received attention from the media. 15. Amongst the cases against the applicant was that of Metropolitana Milanese, which concerned payments of large sums of money made between 1983 and 1992 by a number of firms to the representatives of political parties and the influence the latter exerted on the board of directors of the Metropolitana Milanese company with a view to awarding contracts to those firms in connection with works on the Milan underground system. 16. On 8 June 1994 the investigating judge committed the applicant and twenty-nine co-defendants for trial before the Milan District Court. The applicant was charged, in particular, with interference with freedom of contract and corruption. 17. The first trial hearing took place on 20 September 1994. The applicant was not present and the District Court accordingly declared him absent (contumace). Some of the accused requested and obtained a plea bargain, while the position of some other accused persons was separated from that of the applicant. The trial before the Milan District Court thus continued only against the applicant and five co-defendants. The Metropolitana Milanese company joined the proceedings as a civil party. 18. In a decision of 7 July 1995 the Milan District Court remanded the applicant in custody. On 12 July 1995 counsel for the applicant informed the Milan District Court that he had learned of that decision through the press and asked for a copy of it. On 20 July 1995 the Milan District Court declared the applicant to be latitante, that is, to be deliberately evading the court's jurisdiction. 19. The applicant appealed against the decision of 7 July 1995. In an order of 25 September 1995, the Milan District Court dismissed the applicant's appeal. The court held that once the preliminary investigation was completed it was for the trial court to consider whether there were substantial indications of guilt and whether in particular there was still a danger that the applicant would abscond. In this respect the court noted that since 5 May 1994 it had been impossible to find the applicant in Italy and that in the various proceedings brought against him a number of coercive measures had been ordered that could not be enforced. Moreover, in judgments of 29 July 1994 and 7 December 1994 the applicant had been sentenced to terms of imprisonment. In the District Court's view, the applicant's lengthy stay abroad demonstrated his determination to evade the coercive measures ordered against him in 1994. 20. On 17 and 19 July 1995 the Public Prosecutor sought an order for the interception of the applicant's telephone calls between Italy and his home in Hammamet. The interceptions were aimed at gathering information with a view to arresting the applicant. 21. In a decision of 21 July 1995 the Milan District Court allowed those applications with a view to facilitating the arrest of the applicant. The court noted that the interceptions had a legal basis and were essential to supervise the applicant's movements and his personal and international relations which had allowed him to continue absconding. The interceptions, carried out by a specialist branch of the Italian police, began on 20 July 1995 and were concluded on 30 September 1995. 22. At the same time, the Public Prosecutor sought an order for the interception of the applicant's telephone calls between Italy and his home in Hammamet in the context of a set of criminal proceedings for defamation which were pending against the applicant. The Milan investigating judge allowed the interceptions with a view to gathering evidence against the applicant and to identifying the accomplices. The interceptions, carried out by a specialist branch of the Italian police, began on 1 August 1995. The prosecution applied for four extensions of the duration of the interceptions, which were allowed by the investigating judge on 4 and 12 August, and on 1 and 14 September 1995. A request for a further extension was refused on 30 September 1995. The interceptions were thus concluded on 3 October 1995. 23. At the hearing on 29 September 1995 in the case of Metropolitana Milanese, the Public Prosecutor in charge of the applicant's case, Mr Paolo Ielo, filed the transcripts of the telephone interceptions with the registry and asked that they be admitted as evidence against the applicant. The prosecution argued that they were necessary to assess the applicant's personality in order to determine the sentence if he were convicted, and that they could support the prosecution's allegation that the applicant intended to continue to abscond. The prosecution subsequently read out in court certain extracts of interceptions with a view to proving: a) that the applicant could leave Hammamet; b) that the applicant had started or influenced two virulent press campaigns against a magistrate of the Milan District Court and against an Italian political party; c) that the applicant was collecting information concerning certain politicians and magistrates, with a view to damaging their reputation; d) that the applicant continued to show aggressiveness towards the magistrates who were investigating him. The Public Prosecutor compared the applicant's conduct to that of a “certified criminal” (criminale matricolato) who attacked all those who had done their job and had tried to do it well. The Public Prosecutor declared that the transcripts of the telephone conversations were at the disposal of the District Court and of the defendants. 24. The transcript of the speech given by Mr Ielo at the hearing of 29 September 1995 reads as follows:
“I am submitting these further pleas under Article 507. I have already explained why I intend to submit these documents, which consist, firstly, of assessments of Craxi's criminal potential, within the meaning of Article 133, with reference in particular to his conduct after the offence was committed, and, secondly, of assessments as to whether the measure affecting his personal freedom should be maintained for the reasons for which it was decided on, and whether it should be extended for other reasons. I shall try to be extremely brief, although what I have to say will take a little time. I have tried to divide the documents submitted according to subject-matter, and have put together the telephone transcripts - the documents include the measures authorising the telephone tapping and the confiscation orders, which were moreover confirmed by the tribunale della libertà [the court responsible for deciding on the justification for measures restricting personal freedom or property rights]. The first set consists of telephone transcripts and clearly shows that Craxi can move about in Hammamet. This seems self-evident, yet Craxi is someone who, during the proceedings - all the proceedings taking place in Milan - said he had a legitimate reason for not attending and sent doctors' certificates. First he complained that the trials were not taking place, and now that the trials are taking place he wants them postponed on the grounds that he has a legitimate reason for being unable to attend. It is absolutely clear from these telephone transcripts that Craxi is someone who is able to move from the address of the subscription to the telephone line on which he receives calls. Why is this important? The reason is clear: Craxi is such a liar that he continues to lie even before the courts, saying things that are untrue and belied by documentary evidence.
The second point concerns Craxi as a danger to the community, in particular his capacity to operate in the current situation, and become involved in the processes whereby public opinion is shaped and in other processes, which I shall discuss. In my opinion, two operations are particularly important - two press campaigns which were co-ordinated ... or at any rate two press campaigns in which Craxi clearly played an important role. The first is a recent one: I am referring to the telephone calls on 14 September 1995 - I apologise for the vulgarity, but I am reporting the speech of others and am not responsible.
Subscriber Craxi, talking to Luca Iosi, says, 'the son of the hero' - the reference to Di Pietro is clear. An incomprehensible sentence 'He contributes to the tune of 2,400,000 a year, no less, when it all comes out.' Luca Iosi says, 'Now we take the wraps off the case and then we shoot him in the balls.' A week later the front page news is: 'Di Pietro too, has a house in the centre for 240,000.'
The second press campaign was co-ordinated directly from Hammamet. It is the press campaign that was waged in Italia Settimanale, whose editor is Alessandro Caprettini. What happened? In a nutshell, Craxi sent Alessandro Caprettini a file on the [Northern] League, concerning alleged arms dealings by the League, and Alessandro Caprettini willingly received and published it. What is particularly important is that, in my opinion, the file came from Craxi himself: it was found on Craxi's computer or, rather, on the computer in Craxi's office in via Boezio in Rome and, in particular, was referred to in the conversation between Caprettini and Craxi, in two respects. Firstly, the subscriber - when I say subscriber, I mean Craxi - says, word for word, 'In any case we can do more with them - we can investigate but we can also raise questions.' What he means is that they can be used to raise questions about the Northern League, an Italian political party receiving special attention from a fugitive from justice, who agrees with the editor of a weekly to launch a campaign of this type. The second important thing is: 'Of course I publish the article, and then I go to a prosecutor who is a friend of mine and say, “Hey, look into this affair, will you?” - but this is the sort of thing one does nothing about'. Further evidence that Craxi is a liar comes from an article in the Indipendente, which published the news that Craxi had denied being the author of the material sent to Italia Settimanale. I am producing this evidence to make it clear that when we talk of Craxi it is not like shooting at the Red Cross: we are talking of someone who is fully active and has a great capacity to influence the media. In this connection, there is a set of telephone transcripts which show that Craxi was in constant contact with journalists in a wide variety of areas.
Let us now move on to the last three points which, I believe, deserve a minimum of attention.
There is documentary proof, and proof from the telephone transcripts, that Craxi is mounting dossiers in Hammamet against some political activists. I am referring - with particular regard to the evidence that has been found - to dossiers against D'Alema. He is engaging in “dossierism” ...
The President: What does the neologism mean? Compiling information or a dossier?
The Public Prosecutor: Compiling information in order to attack someone's reputation. This is an activity that was also to be pursued against judges, including myself, but we shall discuss that later.
I said “dossierism”, which consists in compiling information that can damage people's reputation. This is documented by the telephone transcripts. One alarming aspect, in my view, is that it provides further evidence of Bettino Craxi's criminal potential.
I am talking about compiling dossiers of information designed to damage the reputation of certain eminent people, and I am thinking of D'Alema, Prodi and Del Turco, about whom I shall talk in connection with a specific note that was found in Craxi's office. The dossiers were mounted with a certain Tina Soncini Massari from Bologna, who is an old friend of Craxi's - by friend I mean someone with whom he had relations which were, I imagine, of a political nature - to the extent that Tina Soncini Massari appears on a list of presents that Craxi gave. She is a leading supporter of Gelli, and is known to the judicial authorities for having arranged to put the Bologna judicial authorities off the track when they were investigating the massacres, by bribing witnesses. In this connection, I can produce evidence that identifies Tina Soncini Massari: the order from the Bologna investigating judge, Dr Grassi if I am not mistaken, which shows that the most recent contact between Gelli and Tina Soncini Massari dates back to 1993, and which makes it clear that she attempted to put the investigators off track and bribed witnesses in the course of the proceedings. These are the sort of people Bettino Craxi, a fugitive from justice who is the subject of pre-trial detention orders, uses in order to hinder investigations. You will be able to see for yourselves what these documents contain, and I shall not dwell on them. What is significant is another note on Del Turco also found in Craxi's office. I shall read you out the beginning so you can understand what all this is about. The Italian Socialist Party administration has always helped to support the Socialist current of the CGIL [Federation of Italian Trade Unions]. Del Turco took over from Marianetti, and the flow of money never stopped. 'On average, Del Turco received 20 to 30 million a month from Balzamo. On the occasion of every election or conference, there were extraordinary payments for instance, and so it went on', and the note continues with information about the politician.
There are also telephone transcripts of statements by Bitetto in which he appears to be talking about D'Alema ... These are statements that have been filed and can be seen by anyone: it is clear to all why they are important from a criminal point of view.
Then there are documents that show that Bettino Craxi has, or at any rate had, relations with important members of the Italian institutions. I am referring in particular to the telephone transcript of 2 September 1995, during which the subscriber, Craxi, talks to Margherita - she is not identified, who says: 'Alberto told me that he attended a meeting between Arafat and Silvio, and they spent ten minutes talking about you alone. Arafat came to Tunisia to see you and told Silvio Berlusconi to tell you that he too would be happy to have you as his guest in Palestine.' Again in connection with the capacity for communication of the accused, Bettino Craxi, who I repeat is a fugitive from justice and the subject of an arrest warrant for corruption with aggravating circumstances, there is a letter which the State Under-Secretary to the Prime Minister's office sent to Craxi's secretary on 25 June, in which the State Under-Secretary to the Prime Minister's office writes: “Dear Serenella, what you feared has happened, although both Giachieri and Carbonoli promise their good offices and will put things right'.
Basically, this concerns a recommendation addressed to the State Under-Secretary, who hastens to reply, saying ... Serenella is Serenella Carloni. And let it be clear that Serenella Carloni is nobody in her own right, and yet as Bettino Craxi's secretary she was still able, on 22 June 1995, to make recommendations concerning the allocation of service areas in Perugia.
The last point on which I intend to dwell is the constant attacks by Bettino Craxi on those who investigated him. The right to defend oneself is sacred and culminates in a fair trial, but when it is exercised by attacking those involved in the proceedings, those who carried out the investigations, it is, in my view, proof of a very highly developed potential for crime.
A note found in Craxi's office - Craxi's own office - you may, if you wish, in this connection hear Simonetta Carloni, who, I repeat, confirmed this - contained, among other pleasantries, a very precise reference in time in the form of Dell'Utri's release from prison - it is dated after Dell'Utri's release. Among the pleasantries, the note says: 'The Di Pietro case must become an exemplary case: we must get to the bottom of things because all the conditions are right. The usual logic of hitting one person in order to teach a hundred others a lesson. Forza Italia must regain its independence and this means it must not be subjected to the requirements of allies and exposed to dangers and uncertainty. There are key targets, particularly the Milan Pool [a group of Milan public prosecutors waging war on corruption]. We need to have the courage to call for its arrest before they do. We need to denounce the damage caused by the revolt. We must begin by using people as examples and waging war. We need to use parliamentary force in every way possible. This includes calling for enquiries with a lot of publicity and denouncing abuses of authority - by Craxi. There is the seizure of the parliamentary question from Maiolo, faxed by the Forza Italia parliamentary group ... Luca Mantovani, who sent it for information to Bettino Craxi two days later with a covering letter which says: 'I would point out, inter alia, that Maiolo has in the last few hours been collecting more documentation with a view to asking further questions in the near future about the management of the Milan Public Prosecutor's Office.' There are telephone transcripts in which we read: 'We need to bombard them in the press'. There are also attacks connected with what was published in Il Mattino. There is something for everyone - not just for the Milan Public Prosecutor's Office. There are attacks on other colleagues and references to other colleagues. A woman talking to Craxi says, 'He's bewildered too' and says that the person in question was used by the Milan group as a killer; she says she has heard from Biondi that the person coming down to speak is virtually in the service of Caselli. I will spare you all the rest because you can read it for yourself. I shall just read you one extract, partly because it concerns me and partly because it concerns these proceedings. 'So why doesn't someone else come?', with reference to Salamone, who is clearly involved ... he knows the truth of the matter. 'I think Milan stopped him.' 'I am about' - here it is the subscriber, Bettino Craxi, speaking - 'to denounce this Ielo. Both Borelli's statements against Mancuso and the statements by Ielo come under Article 289 [of the Criminal Code]'.
He is speaking to a certain Salvatore, who has not yet been identified, but I hope very soon to identify him, who repeats, 'Yes, but he's dealing with it.' Craxi replies, 'He has nothing to do with this.' The person to whom he is speaking says, 'No, of course not. The minister's dealing with it.'
The President: The public prosecutor is requested to bring the charges without making allusions or taking stands, or making comments of a personal nature.
The public prosecutor: President, the charge is based on the premise that these telephone transcripts show, within the meaning of Article 133, behaviour - and this is where the accused, Bettino Craxi, has committed an offence - worthy of a certified criminal - it is the behaviour of someone who attacks all those who have simply done their job, because that is what they are paid to do and that is what they have chosen to do, and have sought to do it properly, but he doesn't care, he has to attack them and ...
President: We have understood why the public prosecutor has asked for these documents to be produced.
Public Prosecutor: The evidence submitted has been greatly summarised, President, because there is further material and I am at the disposal of defence counsel and the court. Ah, wait a minute - there are all the measures authorising the requests for telephone tapping and seizures; they are all appended.
The President: Appended to the individual sets of evidence ... these pleas from the public prosecutor ... Let us begin to hear Craxi's defence counsel, who is the person most directly concerned, and then if the others want to intervene ...” 25. The applicant's lawyer requested to be granted access to the decisions authorising the interceptions and to all the documents to which the Public Prosecutor had made reference. He declared that he would have commented on them at a later stage, observing, anyway, that some of the facts imputed to his client could not be described as aggressive behaviours, being rather simple statements of the truth. 26. The District Court reserved its decision on the prosecution's request of admittance of evidence until the hearing of 19 October 1995. The transcripts of the telephone conversations intercepted on the applicant's line were made available to the parties immediately after the hearing of 29 September 1995. Mr Guiso, the applicant's lawyer, was provided with the file including all the transcripts and afforded the possibility of making written submissions. 27. Respectively on 2 and 9 October 1995, the two applicant's counsels (Mr Lo Giudice and Mr Guiso) were informed that the telephone interceptions had been filed with the Public Prosecutor's Office's registry. The applicant's counsels subsequently objected to the admission of the interceptions as evidence. In particular, they argued that contrary to Article 268 of the Code of Criminal Procedure (hereinafter, the “CPP”) the District Court had failed to hold a specific sitting before the trial hearing in the presence of both the defence counsels and of the prosecution in order to select those interceptions that were significant and exclude those considered illegal. Further, the prosecution had failed to apply for an extension of the fifteen-days duration of the telephone tapping, so that those interceptions which had been carried out after the first fifteen days were illegal and could not be used. 28. The content and the name of the interlocutors of certain telephone conversations were subsequently published in the press. 29. In particular, "L'Unità" of 30 September 1995 published an article entitled “Dossier and conspiracies against Di Pietro [one of the magistrates of the clean hands team]". It stated that the interceptions made on the applicant's phone showed that he was preparing a defamatory campaign against some political men with the help of a "lady from Bologna", who was a member of an illegal association of free-masons. Moreover, in one of the interceptions Mrs Margherita Boniver (an Italian politician) had told Craxi that Mr Berlusconi (the current Prime Minister of Italy) had had a conversation with Mr Arafat about him and that Arafat would have "invited" Craxi. In another telephone call, the son of one of the applicant's lawyers had said that "the Minister" would have commenced proceedings against Mr Paolo Ielo. 30. On the same day, as well as on 1 and 2 October 1995, L'Unità also published the following extracts from some of the intercepted phone calls.
Conversation on 26 July 1995 with a certain Luca:
Craxi (speaking with Luca): “This Salamone [the Public Prosecutor of Brescia] is another one who wants to make a show of himself, I am going to see whether there are elements to introduce a criminal complaint against him.”
Conversation on 28 July with an unknown woman:
Woman: “I'm in a telephone box in Rome. I saw that friend of yours from the Senate.”
Craxi: “Why has this big friend of mine failed to say one single word?”
Woman: “He leaves the comments to you. He is lost and says that this person had been used by the Milan group as a killer. He says that he knew from Biondi that the one who spoke is in practice a servant of Caselli [a well-known Italian magistrate].”
Craxi: “Ah, yes?”
Woman: “Concerning the story of the brother.”
Conversation on 3 August 1995 with an unidentified friend:
Craxi: “They should go and see. It should be established whether a magistrate can buy a Mercedes at a very favorable price. May he borrow money from a friend in order to pay his gambling debts? So all this is legitimate, it can be done. Let's put it in the law: magistrates may borrow money without paying legal interests.”
Conversation on 14 August 1995 with an unknown man:
man: “Next week I will provide you with all the things you asked me on kronos [a press agency], the most important thing [is] that, at least until one month and a half ago, I do not know if now he has been revoked, Prodi was a counsellor of its biggest company.”
Craxi: “Ah, ah, ah, very well, give me all the data, please.”
man: “Counsellor of its biggest company, one of the five members of the directing body was Prodi, so ...”
Craxi: “Super, then I would like to have the material concerning that other thing ...”
Conversation on 25 August 1995 with Mr Filippo Facci [a journalist]:
Craxi: “... There are some pillars in Tangentopoli [term used by the press to design the corruption system disclosed by the clean hands inquiry] that stayed outside, they should be all those who stayed inside, then we can find the solution, but no kidding, I am not getting upset because of the apartment of D'Alema [an Italian politician who had subsequently been the Prime Minister of Italy] ... ”
Facci: “Sorry, the phone fell while I was taking the book, pages 192 and 193, where it speaks about Giovannini ...”
Craxi: “There is a tale, not really about that thing which will make a little scandal, but it will be a regular contract on which it was not possible to lay ... lies are others and this one Giovannini is another Greganti, close to D'Alema, fuck him. The Public Prosecutor's Office in Rome opened an inquiry for calumny, but the day of reckoning will come, son of ...”
Conversation on 2 September 1995 with a certain Valterino:
Craxi: “What is going on with the inquiry of Salamone? Now it does not concern Di Pietro, but myself?”
Valterino: “These are saying that they brought papers against you.”
Craxi: “What papers?”
Valterino: “The papers concerning the search.”
Craxi: “The papers concerning the search have nothing to do with Di Pietro.”
Conversation on 2 September 1995 with lawyer Guiso:
Guiso: “Di Pietro is in Cernobbio. Today Il corriere della sera says that he is nobody, and he had been recommended - and this is very important - by an agent of the branch of the American police investigating on financial matters. He is substantially accompanied by him, please consider that he had been three months in America and appears in Cernobbio, he should speak this morning on the subject “foreign politic, ethic and finance.”
Craxi: “It's crazy, but it is the subject of the Mac Namara Foundation.”
Guiso: “[This] shows that he was linked to America, not at all the uncertain future he had declared when he abandoned his post. Then, a journalist gave me a book with plenty of information. I cannot send it to you by fax as the characters are very small.”
Craxi: “Send it to me to that address by DHL. To that address you know.”
Conversation on 5 September 1995 with a journalist of “Il Messaggero”:
Journalist: “Did you hear about the new Italian politicians?”
Craxi: “Who are they?”
Journalist: “Di Pietro.”
Craxi: “A little adventurous trafficker (avventuriero trafficante).”
Conversation on 6 September on Craxi's line in Hammamet. Mrs. Tina Soncini speaks with a certain Michele:
Soncini: “I have interesting news to give him.”
Michele: “He says you can send a fax.”
Soncini: “I will send it tomorrow with some references to Bologna.”
Michele: “Let's use a code, a slightly modified code, we know of what kind of persons we are speaking about.”
Soncini: “I will send some telephone numbers ... I had been told that the mother is a very worldly-minded person.”
Michele: “Newly rich, all this is useful for us, maybe also apartments ...”
Conversation on 6 September 1995 with a certain Simona:
Craxi: “The problem was to build up the physiognomy of the personage ... In sum, this is the clue, it seems he had made a number of things on which he was wrong.”
Simona: “It is an enormous thing, there are ten documents per day.”
Craxi: “The trials he made, I know about something, we should look at them, people say that the tribunal shut the door in his face, they speak about the preparation of some books by certain friends, ask to send them the list of the members of the publishing house.”
Conversation on 11 September 1995 with Mr De Jorio, a journalist:
Craxi: “You should speak with somebody who will come and speak to me. The problem ... is to have the hands free and to have information.”
De Jorio: “We have some.”
Craxi: “What is a newspaper like this doing, scandal and satire, isn't it?”
De Jorio: “We were the sole newspaper is Italy which published documents on red gladio [a secret organization that the communist party was suspected to have built in order to achieve its aims during the cold war] ... judges have discontinued the proceedings on this matter.”
Craxi: “It is not the only matter on which they discontinued proceedings, there is a systematic tendency to discontinue proceedings concerning the communist party.”
De Jorio: “Do you know what we have discovered? That apart from Pio La Torre, also the gangster Felice Cavallero Pollini was a member of gladio and had been trained abroad ... also the one of the gold of Dongo.”
Craxi: “There are many things. They believe they have solved the problem with the scapegoat, they are under an illusion, they should have killed me, but as they did not succeed in this ... they tried twice, once the American intelligence, once the English one.”
De Jorio: “Mr. President, be careful, I know that here in Italy they want to organize [something], to come [over there] and take you, it seems they are offering 60 million [lire, which is approximately 30 987 euros] per person, within the intelligence, in order to take you and to bring you elsewhere.”
Craxi: “All right, all right, try to do so.”
De Jorio: “I am telling you this because a person I trust during his last meeting with me ... I know that a group Z has been constituted, kept in the shade of a free-masons organisation constituted by approximately 600 magistrates, and the head of this group would be Scalfaro [the President of the Italian Republic at the relevant time].”
Craxi: “I heard about this thing, but I do not believe it, I am not convinced.”
Conversation on 12 September 1995 with an unidentified journalist:
journalist: “Will Salamone come [to see you in Hammamet]?”
Craxi: “I have no idea. I am here, everybody knows where I can be found.”
Conversation on 12 September 1995 with an unknown journalist:
Journalist: “I will state that you said: “I have friends not only in the Arabic world and I think that in a European capital a center such as the Wiesenthal center will be built, [and this center] will investigate the judicial clans and all those who in these past three years had acted unfairly against me and against many other people.”
Craxi: “No, that is not good. First of all it is not only against me, it is not the judicial clans, but all the clans including the judicial ones ... [a center which] looks after and will look for the truth ... So much truth which still has to come out.”
Journalist: “Then I ask you the thing on Di Pietro and then you will answer “I'm writing a book which will be entitled “Mimì an Italian miracle.”
Craxi: “No, I want to write, I want to write a little book, not a book ... It's too important.”
Conversation on 21 September 1995 with Mr Pierangelo Maurizio, a journalist:
Maurizio: “Now I'm working for “Il tempo”, and the television show of Gianfranco about Cinquestelle has started again ... I saw that thing about Enel [the Italian electric energy producing company].”
Craxi: “This story on today's “Il giornale” is the end of the world, do you know whom the political personality I am referring to is?”
Maurizio: “No, frankly not.”
Craxi: “It's D'Alema, there is a statement [made by] Bitetto [a director of Enel who was accused of corruption and made statements calling into question the criminal liability of Craxi and other politicians].”
Maurizio: “... about which you speak in your books.”
Craxi: “I wasn't aware, there is a statement [made by] Bitetto exposing that years ago, but there is a continuity in the criminal offence, he took part in a meeting in Bari or Brindisi in which were present D'Alema, the regional secretary of PSI and others, where he, as a representative of Enel ... discussed the contracts for public works in Brindisi.”
Maurizio “What about this statement?”
Craxi: “I have it, I will forward it to you.”
Maurizio: “Maybe, I will call you tomorrow.”
Craxi: “Now a number of things will come out on that young man.”
Maurizio: “They are getting a different turn ... all the things about D'Alema.”
Craxi: “Those things from Venice are the less [important], there are other things ... I would like to be personally informed. I would like to have a fax number where I can send things to you.”
Conversation on 23 September 1995 with a certain Rosario:
Rosario: “The fax is broken, I would have liked to send you some extracts from yesterday's and today's newspapers concerning that little dog named Lulù [probably, the former Milan magistrate Antonio Di Pietro] and his son. Did you see them?”
Craxi: “Yes, yes, thanks.”
Conversation on 23 September 1995 with Roberto “Bobo” Craxi, the applicant's son:
Bobo: “The thing will come out next Monday.”
Craxi: “Not the next one.”
Bobo: “Not the next one, also because next [Monday] there is the Andreotti case. It will come out Monday, it's 25 pages and they will anticipate it.”
Craxi: “all right, it will be a hot week and they will be afraid.”
Conversation on 23 September 1995 with Mrs Pia Luisa Bianco, a journalist:
Bianco (speaking with Craxi): “The thing has already been paged up. I will forward it to you in advance ... we will put a big emphasis on it, we already have an agreement with Il corriere della sera in the sense that they will make big titles, don't worry because it is very well managed, you will see, it will have a big impact.”
Conversation on 24 September 1995 with Mrs. Tina Soncini:
Soncini: “Apart from these documents, I have a channel to acquire more detailed information, but I need that you organize an appointment.”
Conversation on 25 September 1995 with a certain Luca:
Craxi: “They should be attacked frontally, without fear, to Mancuso they are doing ... This Ielo is behaving like a pure mafioso, an arrogance from the power.”
Luca: “There is no other alternative but screaming it in their face, we will do it, we will do it. Here everything is all right except for that little asshole of Intini [an Italian politician].”
Conversation on 25 September 1995 with a certain Salvatore [probably Mr Salvatore Lo Giudice, the son of one of the lawyers officially representing Craxi in the Metropolitana Milanese trial. Mr Salvatore Lo Guidice, who is also a lawyer, acted as his father's substitute during some hearings]:
Salvatore: “Yes, he will think about it.”
Craxi: “He has nothing to do with this.”
Salvatore: “No, sure he has, the ministry will think about this.”
Craxi: “Because it's 289 [Article of the Criminal Code punishing the attempt to impede the functioning of the Constitutional organs].”
Salvatore: “This is something up to him.”
Craxi: “To introduce a claim calmly is one thing, but one cannot make all the comments and the political polemics, the speculation made by Ielo is a defamatory one.”
Salvatore: “But now the serious point is to give him a hand. It is essential to break them on this Venice thing which is the only one they are afraid of, so as he has a number of suspicions, he needs it as he needs bread.”
Craxi: “I am completely unaware of that story.”
Salvatore: “I have a lot of material.”
Craxi: “I will immediately deal with this matter, tomorrow I will send faxes and then I will keep [you] informed.”
Salvatore; “Then, it is important to ask for the availability of the State.”
Craxi: “Is it enough that it arrives immediately, then you will call when it leaves.”
Salvatore: “We are doing everything very quickly, then I will go directly to Rome. In any case this one with whom we are working together can be trusted, then the serious thing is that he is using the same elements of Milan, therefore it would be a big mess if it comes out that with the same elements Milan failed to proceed, there are many ideas to be used.”
Conversation on an unspecified date with a certain Mr. Paolo Farina:
Craxi: “That one is an idiot, a first-class idiot.”
Farina: “He was replaced by ...”
Craxi: “He was replaced because he was incompetent.”
Farina: “He was replaced by Andò.”
Craxi: “He was incompetent.”
Farina: “He tried to suggest that his replacement ...”
Craxi: “Of course not ...”
Farina: “They presented themselves as supporters of An [Alleanza nazionale, an Italian political party].”
Craxi: “Precisely ... but that one is an idiot, an unpretentious personage, I do not know how he could have arrived there.”
L'Unità also reported that in another conversation with an unknown person, Craxi had showed his appreciation for a recital with Pavarotti transmitted by the Italian television; when he had learned that his friend had not seen it, he had said: “Phone Rossella [the director of a news bulletin] and make them send the cassette to you.” 31. “Il Giorno” of 30 September 1995 published an article entitled “The attempts to create false evidence by the friend of the head of P2 [an illegal free masons association]”. It made reference to a telephone conversation that the applicant had had on 24 September with Mrs Tina Soncini, in which the discussion concerned “documents made ad hoc” in order to be sent to an editorial company. The article reported the links allegedly existing between Mrs Soncini and Mr Licio Gelli, head of the P2. 32. “La Repubblica” of 30 September 1995 published an article entitled “We will ask for the arrest of the [clean hands] Pool”. As far as it concerned the telephone interceptions, the article indicated the names of some journalists who had spoken with the applicant on the phone, and the content of the telephone conversation with Mrs Boniver reported by L'Unità. La Repubblica moreover reported the content of a phone call that the applicant had had with Mr Luca Iosi, his “speaker in Italy”, on 14 September 1995. The conversation at issue was interpreted as an attempt to attack Mr Di Pietro in relation to an apartment rented to his son. Its content was the following.
Iosi: “The son of the hero contributes each year for 2 400 000 lire [approximately 1 239 euros].”
Craxi: “So much... When will this thing come out?”
Iosi: “Now we will make the case grow and then we will shoot them right in the balls [Italian expression which means to attack someone hardly], 200 000 lire [approximately 103 euros] in spite of the rent rates and formally in his own name only in order to put his son in it.” 33. La Repubblica also reported the content of some telephone conversations the applicant had had with Mrs Tina Soncini, with a certain Anna, with Mr Alessandro Caprettini (the director of an Italian newspaper), with Mrs Alda D'Eusanio and Mr Enrico Mentana (two journalists), and with a certain Ugo. Their content is the following.
Conversation on 21 July 1995:
Craxi: “Enrico, in this moment you are not helping me.”
Mentana: “You mean, honouring the truth.”
Craxi: “By reporting the things I am saying, for the Holy Virgin's sake, nothing more ... The boys from Giovine Italia [a political organisation] did something this morning.”
Mentana: “I'm not aware of this.”
Craxi: “Think about it, nobody was there, there were no televisions, now you should report this news, report this news at least, they were one hundred, they are good, I have sent a memorial of historical nature, something about the Giovine Italia of Mazzini [an Italian patriot] ... if you continue, you will see the little surprise.”
Conversation on 24 July 1995:
Craxi: “I should come as I came many times in Italy with moustaches: in fact I was coming with a wig and false moustaches ... Idiots.”
D'Eusanio: “This is the moment to do something about the procedural guaranties, about the magistrates, about the pentiti, Contrada, Tortora [persons accused by pentiti in mafia trials], if you are not taking advantage from these occasions, there would be nothing you could do.”
Craxi: “Let's say the truth, there are some gangs organising a push-off, real gangs.”
D'Eusanio: “Bettino [nick-name of Craxi], there are idiots, inefficient persons, cowards.”
Craxi: “no, no, they reached an agreement, and lack of courage is inside the information, as all this wouldn't happen if there weren't a number of cowards in the newspapers and the televisions.”
D'Eusanio: “My director is a person who believes in nothing, therefore he is keen on his position and there is somebody protecting him and his friends [to continue] believing in nothing.”
Conversation on 3 August 1995:
Caprettini: “I believe, the funny thing is the following, you know what I am going to do, I will of course publish this thing, then I will address myself to a magistrate friend and then I'll tell him: let's investigate on this matter, so we'll keep the problem alive.”
Conversation on 29 August 1995:
Craxi (speaking with Ugo): “I can't understand what is going on in Italy, if we are going to the elections immediately or not; in the affirmative, there is nothing to do; in the negative, in eight months time we will sort out a socialist list, we will put a nice pink carnation [the symbol of the PSI] on it. I will make the socialist list being made, no kidding. This situation cannot be accepted anymore.”
Conversation on 20 September 1995:
Soncini: “I had information about this, it is hearsay, the father of D'Alema in 1941 was the Secretary of the Guf [University fascist group] of Ravenna, it is for sure.”
Craxi: “I would like to have a more precise ..”
Soncini: “I can provide you with the whole story, because after having caused the death of three hundred people, he told it to a journalist.”
Craxi: “And then we will deal also with the betrayer.”
Conversation on 25 September 1995:
Craxi: “Send me a text.”
Anna: “it is very important, I will send it to you and you will forward it to the Public Prosecutor of Venice, Mr Nordio ... Now the important point is to give them a hand, to attack them on this Venice thing which is the only one they fear ... this person who is working with us is somebody I trust, then the serious thing is that he is using the same elements of Milan, which will prove that with the same elements Milan failed to proceed.” 34. La Repubblica also reported the following telephone conversation current on 10 August 1995 between Anna Craxi, the applicant's wife, and Mrs Veronica Berlusconi, the wife of the actual Prime Minister of Italy.
Veronica Berlusconi: “Anna, how are you?”
Anna Craxi: “And how do you do, everything all right?”
Veronica Berlusconi: “Everything all right, we arrived in Sardinia two days ago. The trip was extremely tiring ...” 35. La Repubblica noted that “the day on which Lady Veronica made her polite phone call to her friend, the husband of the latter had already been declared latitante [which means deliberately evading justice] by the Milan District Court”. 36. Il corriere della sera of 1 October 1995 published the content of a telephone conversation that the applicant had with a certain Salvatore, afterwards identified as Mr Salvatore Lo Giudice. The text is the following.
Salvatore: “We should say we are ready to be heard. Because this is an interesting situation. I had a number of contacts with this magistrate.”
Craxi: “All right. In the meanwhile I do not even know what these things are.”
Salvatore: “It's obvious, but he knows that it is not absolutely irrelevant.”
Craxi: “In view of a speech of a general nature.”
Salvatore: “Correct. He knows that [this] has nothing to do with that other story; it's only stuff he inserted in order to come and hear you.”
Craxi: “Send me a text.”
Salvatore: “It's very important. I'll send it and you will forward it to Mr Nordio, Public Prosecutor attached to the Venice District Court. Do you have that note?”
Craxi: “I did not even read it.”
Salvatore: “Look at it, because it is a serious thing. There won't be any problem with Tunisia.”
Craxi: “Here they are a little bit upset with Italy, in general. I will intervene.”
Salvatore: “In this way, we will create a great problem for them, as this [person] told me very interesting things. For instance, he has consulted Digos [a branch of the Italian police], and you are in the list of latitanti. So a big contrast will be created, which would help us a lot.”
Craxi: “Why?”
Salvatore: “Because then we will be able to prove that the order declaring you latitante was arbitrary. So, if we can bring him [seeing you] it would be difficult for them to justify the fact that you are evading justice.”
Craxi: “So the other one is not going to come?”
Salvatore: “He has been blocked in Milan.”
Craxi: “I do not believe it.”
Salvatore: “Yes, I know it for sure, he told me. This one, on the contrary, is ready to do seas and mountains [Italian expression which means everything is necessary in order to achieve one's aims].”
Salvatore: “Then at the Ministry there is an agreement, it would be ...” 37. On the same day Il corriere della sera published an interview with Mr Salvatore Lo Giudice, who explained that the telephone call at issue did not concern a “conspiracy” organised by the applicant, and a letter of Mrs Belusconi, challenging the opportunity of putting in the file the conversation she had had with the applicant's wife. Articles appeared in Il Corriere della sera and in other newspapers concerning interviews and declarations made by Mr Nordio, Public Prosecutor attached to the Venice District Court, who criticised the release into the public domain of the telephone interceptions and declared that he had never followed irregular procedures in order to serve the interests of the applicant. The latter was at freedom to believe that he could have taken advantage from the legitimate and impartial investigations that Mr Nordio was making. Other declarations made by the persons who spoke with the applicant on the phone were published by the press, as well as the replies of the applicant to the speech made by Mr Paolo Ielo on 29 September 1995. The applicant stated, in particular, that the Public Prosecutor at issue was a “certified liar” (bugiardo matricolato) and had used a “Stalinist” language. 38. In the following days, La Repubblica, L'Unità and Il Corriere della sera published articles which referred to the above mentioned telephone conversations and to the speech made by Mr Paolo Ielo at the hearing of 29 September 1995. They included attempts to interpret the precise meaning of the conversations. Some of the newspapers commented that the transcripts of the telephone conversations showed, together with other elements, that the applicant was trying to use his influence and his relationships to organise a defamatory campaign against his political adversaries and against the magistrates who were investigating on him. It was moreover discussed in the press whether the applicant had the power to influence the political line of the party Forza Italia, with some members of which he had, apparently, kept close contacts. La Repubblica of 2 October 1995 published an article written on 18 September 1995 by the applicant himself and containing considerations of a political nature. 39. Mr Paolo Ielo granted the press a number of interviews on the matter; he declared he regretted having compared the applicant to a “certified criminal”, but that it was his duty to control the telephone conversations of a person who was deliberately evading a court order. Even if the telephone interceptions did not disclose any criminally relevant behaviour, they should be taken into account in order to assess the applicant's personality and to fix the penalty that the Public Prosecutor could have demanded at the outset of the court proceedings. 40. At the hearing of 19 October 1995 the Milan District Court asked the parties to clarify who had disclosed to the press the content of the telephone interceptions before the competent judicial authority had had the opportunity of pronouncing itself on their admissibility. Mr Ielo pointed out that immediately after the hearing of 29 September 1995, the file containing all the telephone interceptions had been forwarded to Mr Guiso, the applicant's lawyer; the file had been returned to the Public Prosecutor Office only the following Monday, when part of the transcripts had already been released into the public domain. Mr Ielo concluded that the Public Prosecutor could not be held responsible for the divulging of these acts. The representative of the civil party declared that he had nothing to say on this point: he had not copied the transcripts and he had not given them to third persons. Mr Guiso confirmed the version given by Mr Ielo. He indicated that he had copied the file which had been forwarded to him, but that this was done in a particularly secret manner, in order to protect the applicant's interests and to avoid any divulging which could be prejudicial for him. Some journalists had requested to be granted access to the transcripts, but Mr Guiso had categorically refused. Mr Giuso underlined that, as prescribed by the law, the file with the transcripts had been made available to all the parties of the trial, and not only to the applicant's defence lawyers. Mr Guiso concluded that the divulging of the transcripts was clearly due to the action of third persons. He was not interested in that, the only point he wanted to raise being why the telephone interceptions had been presented at the public hearing. The lawyers of the other accused persons declared that they were not responsible for the disclosure. 41. In an order of 19 October 1995, the Milan District Court found that contrary to the applicant's allegations (see paragraph 27 above), the failure to hold a specific hearing prior to the trial in order to select the intercepted telephone conversations did not amount to a violation of the relevant provisions of Italian law. The District Court first observed that according to Article 271 of the CPP and to the Court of Cassation's case law, failure to respect the formalities indicated in Article 268 §§ 4 and 6 of the CPP did not prevent the use of the interceptions. It moreover noted that according to Article 295 § 3 of the CPP, the said Article 268, which concerned wire-tapings made during the preliminary investigations, could apply to the trial phase only “if possible”. In the present case, the selection of the material had been made in the presence of the parties and in its “natural” place, which was the trial hearing. The District Court however decided not to make use of the information yielded by the telephone interceptions made between 20 July and 3 August 1995, in that they were relevant but not “absolutely necessary” within the meaning of Article 507 of the CCP in order to assess the applicant's personality. The District Court further held that the interceptions made after 3 August 1995 could not be used as evidence, as no application had been made by the prosecutor for an extension of the duration of interception, nor could such authorisation be considered as having been implicitly granted for as long as the applicant would be absconding. 42. In a judgment of 16 April 1996, the Milan District Court convicted the applicant to a penalty of eight years and three months' imprisonment and to a fine of 150 million Italian lire (approximately 77,468 euros). This sentence was confirmed on appeal on 5 June 1997. However, the appeal judgment was quashed by the Court of Cassation and the case was re-heard by the Milan Court of Appeal, which, on 24 July 1998, reduced the penalty imposed on the applicant to four years and six months' imprisonment. This decision became final on 20 April 1999. 43. The applicant complained about the unfairness of the Metropolitana Milanese criminal proceedings in the ambit of application no 63226/00, introduced on 15 October 1999. In a decision of 14 June 2001, the Court declared this application inadmissible. | [
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9. The first applicant was born in 1946 and lives in Woking. 10. On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years' imprisonment. 11. The first applicant's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man presented to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day. 12. The following morning he was told that the plans had changed as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar car and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently called “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing GBP 125,000. They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin. 13. At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway by mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room. 14. According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom and when he came out Graham was ready to go. They returned to the van where the briefcase was opened and within moments the applicant had been arrested. 15. Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard he considers it relevant that at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad Detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant's case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway's trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant's own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction. 16. Prior to the commencement of the applicant's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 34 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence, outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the present proceedings before the European Court, the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. He denies any prior involvement in drug dealing. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 36 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure. 17. Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”: see paragraph 29 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure. 18. Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant it was, however, difficult for the defence to undermine Graham's credibility because his full name and other identifying details were not disclosed. 19. Following his conviction the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996 the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”. 20. Prior to the events in question, the applicant was of good character. He had been employed as accounts director in a firm which had gone into liquidation a year earlier, and at the time of his arrest in July 1995 he was unemployed and in considerable debt. 21. The applicant's version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995 Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged bank notes. 22. Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched. 23. The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impugned. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, “Terry” or “Tel”, “Jazz” or “Jag” were participating informers or undercover police officers. 24. Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that “Chris” was coaxing the applicant, there was no evidence of pressure being applied. 25. A second submission was then made on the applicant's behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – “Chris” and “Ian” – the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996. 26. On 20 November 1996 he was sentenced to a total of four and a half years' imprisonment. 27. On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that:
“Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.” | [
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6. The applicant was born in 1967 and lives in Germany. 7. On 22 August 1994 the applicant was taken into custody in Diyarbakır on suspicion of membership of the PKK (Workers’ Party of Kurdistan). 8. On the same date the applicant was seen by a doctor at the Diyarbakır State Hospital who noted in his report that there were no signs of beating or injuries on his body consistent with the use of force. 9. In a letter dated 30 August 1994 the Diyarbakır Police Headquarters informed the Diyarbakır State Hospital that the applicant was in bad health and that he needed to be examined by a doctor. 10. A medical report prepared by Dr Serda Ballı in the Diyarbakır State Hospital on the same date recorded that the applicant was suffering from fever and nausea. 11. On 31 August 1994 the applicant was interrogated by police officers. During his interrogation, the applicant confessed to his involvement in the activities of the PKK such as bombings, making explosives and organising the sub-committees of the organisation. The applicant alleged that he was severely tortured during the interrogation. 12. On 31 August 1994 at 3.00 p.m. three warders who were in charge from 7.00 p.m. on 30 August 1994 to 8.00 a.m. on 31 August 1994, drafted a report. It was stated in the report that the applicant, after having complained of the heat in his cell, had taken off his shirt and rubbed his back against the edge of the fixed concrete bed. This had resulted in bruising to his back. 13. On 1 September 1994 the applicant was transferred to the Dicle University Medical Hospital on account of his serious condition. 14. On 2 September 1994 the applicant gave a statement in the hospital to a public prosecutor attached to the Diyarbakır State Security Court. The applicant denied the allegations against him and stated that he was tortured into signing a statement drafted by police officers when he was blindfolded. He further stated that he had had no health problems before being taken into custody. The prosecutor noted, with reference to the applicant’s medical report, that the applicant was suffering from acute renal insufficiency (akut böbrek yetmezliği). 15. On 2 September 1994 a judge at the Diyarbakır State Security Court ordered the applicant’s detention on remand. 16. On 13 September 1994 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the same court. The prosecutor accused the applicant of providing explosives to other members of the organisation, establishing the provincial committee of the organisation and bombing the premises of banks and of a political party. In the light of the evidence in the case-file the prosecutor requested that the applicant be convicted and sentenced under Article 125 of the Turkish Criminal Code (Türk Ceza Kanunu). 17. At two hearings before the Diyarbakır State Security Court on 1 May 1995 and 6 July 1995 the applicant’s lawyer alleged that his client had been subjected to torture while in custody. He pointed out that the court should have regard to the fact that the public prosecutor had questioned the applicant in the hospital. He requested the court to initiate an investigation into the applicant’s allegation of torture pursuant to Articles 151 and 152 of the Code of Criminal Procedure. The court decided that it would examine the applicant’s allegation in its final decision. 18. In a letter of 12 April 1997 in which reference is made to the applicant’s application to the European Commission of Human Rights, the Ministry of Justice, International Law and Foreign Relations Directorate (Adalet Bakanlığı, Uluslararası Hukuk ve Dış İlişkiler Genel Müdürlüğü), requested the public prosecutor at the Diyarbakır State Security Court to initiate an investigation into the applicant’s allegation of torture. 19. On 26 February 1998 the Commission for the Prosecution of Civil Servants in the Diyarbakır province (Diyarbakır Valiliği Memurin Muhakematı Komisyonu) decided that no prosecution should be brought against the police officers Mustafa Bölük and Hasan Koçak who had allegedly tortured the applicant. It was noted that there was no evidence to conclude that the police officers had committed the alleged crime. 20. On 11 August 1998 the applicant filed an appeal with the Supreme Administrative Court (Danıştay) against the decision of the Commission for the Prosecution of Civil Servants. The applicant reiterated his allegation that he had been tortured. 21. On 22 December 1998 the Diyarbakır State Security Court acquitted the applicant. The court held that there was no evidence on which to convict the applicant other than the statement he gave while in police custody. | [
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9. The applicant was born in 1951 and lives in Bingöl. 10. On 15 October 1993 the applicant and two days later his wife, Mrs N.F., were taken into police custody in Bingöl on suspicion of aiding and abetting an illegal terrorist organisation, namely the PKK (Workers' Party of Kurdistan). 11. Mrs F. was held in police custody for four days, during which period she was allegedly kept blindfolded. The police officers allegedly hit her with truncheons, insulted her verbally and threatened her with rape. 12. On 20 October 1993, following her detention in police custody, Mrs F. was examined by a doctor, who reported that there were no signs of ill-treatment on her body. On the same day she was taken to a gynaecologist for a further examination. The police requested that the report should indicate whether she had had vaginal or anal intercourse while in custody. Despite her refusal, Mrs F. was forced by the police officers to undergo a gynaecological examination. The police officers remained on the premises while Mrs F. was examined behind a curtain. The doctor reported that she had not had any sexual intercourse in the days preceding the examination. 13. On the same day Mrs F. was taken to the Bingöl public prosecutor's office, where she complained about her forced gynaecological examination. The public prosecutor did not record her complaints and ordered her release. 14. On 28 October 1993 the public prosecutor at the Diyarbakır National Security Court charged the applicant and his wife with aiding and abetting members of the PKK. 15. On 23 March 1994 the Diyarbakır National Security Court acquitted the applicant and his wife for lack of evidence. 16. On 9 February 1995, the applicant and his wife complained to the Bingöl public prosecutor about their ill-treatment while in police custody. They further complained that Mrs F. had been forced to undergo a gynaecological examination without her consent. 17. The police officers denied the allegations in statements made before the Bingöl public prosecutor. They submitted that it had been necessary for a gynaecological examination to be performed in order to determine whether Mrs F. had been sexually assaulted while in police custody. They further submitted that the examination had been performed with her consent. 18. On 5 October 1995 the Bingöl public prosecutor decided not to prosecute the police officers for lack of evidence. The applicant and his wife appealed. 19. On 29 November 1995 the Muş Assize Court quashed the public prosecutor's decision on the ground that there had been insufficient examination of the evidence in the investigation file. 20. On 19 December 1995 the Bingöl public prosecutor charged three police officers with, inter alia, violating Mrs F.'s private life by forcing her to undergo a gynaecological examination. 21. On 16 May 1996 the Bingöl Assize Court acquitted the defendant police officers on the ground that the complainants had not provided sufficient convincing evidence in support of their allegations. The court held that the police officers had had no intention of subjecting the applicant's wife to degrading and humiliating treatment when they made her undergo a gynaecological examination, but were trying to protect themselves against a possible accusation of rape. The applicant and his wife appealed. 22. On 7 May 1997 the Court of Cassation upheld the Bingöl Assize Court's judgment. | [
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10. The applicant was born in 1950 and lived in Gyömrő, Hungary. 11. In 1986 the applicant had a work-related accident. Until July 1990 he was unfit for work and received an 'accident allowance' on account of a partial disability. In the light of subsequent medical reports showing an improved working capacity, the allowance was stopped as from August 1990. 12. On 16 April 1993 the applicant brought a court action to challenge the social security authorities' decisions refusing to resume payment of the allowance. 13. On 30 April, 7 June and 3 September 1993 the Buda Surroundings District Court held hearings. On 21 December 1993 it joined the applicant's various claims against the social security authorities. Several hearings and an expert examination were conducted between 12 January 1994 and 1 March 1996. 14. On 24 June 1997 the District Court appointed a traumatology expert. The applicant underwent further medical examinations on 15 September and 9 October 1997. The completed expert opinion was submitted on 10 February 1998. On 12 February 1998 the District Court ordered the Forensic Committee of the Health Science Council to reconcile the various medical opinions submitted in the case, which it did on 2 September 1998. 15. On 12 November 1998 the District Court dismissed the applicant's action. 16. On 8 March 1999 the Pest County Regional Court dismissed the applicant's appeal. 17. On 12 December 2000 the Supreme Court dismissed the applicant's petition for review. On 13 March 2001 this decision was forwarded to the first instance court for service on the parties. 18. On 16 December 2002 the applicant died. On 14 May 2003 the Government informed the Registry of this fact. None of the applicant's successors, if such exist, has contacted the Court. | [
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6. The applicant was born in 1928 and lives in Turku. 7. On 16 June 1998 the District Court (käräjäoikeus, tingsrätten) of Vantaa convicted the applicant of aggravated concealment of stolen goods and aggravated forgery, sentencing him to one year and six months’ imprisonment. The applicant and his co-defendants had denied the charges. The District Court referred the complainants’ claims for damages to be pursued in separate civil proceedings once the criminal proceedings had ended. 8. In his appeal to the Court of Appeal (hovioikeus, hovrätten) of Helsinki the applicant maintained his innocence and, in the alternative, requested that his sentence be reduced or suspended. He also proposed to re-examine witness P., who had already been heard in the District Court. 9. The Court of Appeal summoned the applicant to attend its oral hearing on 24 May 1999. He failed to do so, allegedly due to his dementia and other age-related illnesses, but was represented by his counsel, who submitted a medical certificate and alluded to the applicant’s dementia. Counsel further stated that the applicant had failed to show up for their joint departure for Helsinki in spite of their prior agreement. 10. In its decision of the same day the Court of Appeal found that no legally valid excuse had been shown for the applicant’s absence. His appeal was therefore struck out without counsel having been able to plead its merits and without having been able to re-examine witness P. The State was ordered to pay P. an allowance and reimburse her costs for having presented herself at the hearing venue. 11. On 15 July 1999 the Court of Appeal dismissed the applicant’s request for the proceedings to be re-opened. A fresh medical certificate of 11 June 1999 had not convinced the court that he had had a valid excuse for being absent from its main hearing. 12. On 28 September 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. 13. In civil proceedings brought by an insurance company the District Court, on 1 November 2000, ordered the applicant and others to compensate the company for damage caused in the commission of their crime. On 30 May 2002 the Court of Appeal refused the applicant’s appeal. | [
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8. The applicant was born in 1952 and lives in Warsaw. 9. On 13 July 1995 the applicant filed with the Warszawa-Mokotów District Court (Sąd Rejonowy) an action against the Office of the Council of Ministers (Urząd Rady Ministrów) and a housing co-operative K. In her action she requested, inter alia, that a flat be granted to her, submitting that the area of the one allocated to her by co-operative K, on the basis of an agreement between it and the Office of the Council of Ministers, allegedly differed from the area indicated in the decision granting it to her. The applicant also claimed damages for losses allegedly sustained by her as a result of the increase of construction costs. 10. On 18 July 1995 the District Court declared its lack of jurisdiction over the case and transmitted it to the Warsaw Regional Court (Sąd Wojewódzki). 11. On 23 September 1995 the court ordered the applicant to indicate the value of her claim (wartość przedmiotu sporu). On 5 October 1995 the court again ordered her to indicate that value, considering that the information provided by her in reply to the previous court order was not satisfactory. In her letter of 16 October 1995 the applicant indicated the value of her claim. On 8 November 1995 she was again ordered to provide certain information concerning the value of the claim. On 23 November 1995 she submitted the relevant information. 12. On 27 November 1995 the Warsaw Regional Court, having examined the applicant's request, exempted her partially from the court fees. She appealed against that decision. On 27 February 1996 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed her appeal. 13. On 13 May 1996 the Warsaw Regional Court refused the applicant's request for free legal assistance, considering that at that stage of the proceedings legal assistance was not necessary. The court noted that neither the circumstances of the case, nor the applicant's financial situation called for granting her a legal-aid lawyer. The applicant appealed against that decision. On 19 July 1996 the Warsaw Court of Appeal dismissed her appeal. 14. On 9 October 1996 the Warsaw Regional Court held a hearing. On the same day the defendant co-operative lodged a counter-claim against the applicant. 15. In the pleadings of 15 December 1996 the applicant's lawyer modified her action and raised additional claims, inter alia, for compensation for the allegedly deceitful taking over of her previous flat by the Office of the Council of Ministers. 16. On 30 July 1997 the applicant requested an interim measure. On 13 August 1997 the court dismissed her request. 17. On 19 January 1998 the applicant filed another request for an interim measure. On 23 January 1998 the court dismissed it. The applicant appealed against that decision and requested exemption from the court fees relating to that appeal. 18. On 24 March 1998 the court held a hearing. 19. On 3 August 1998 the defendant co-operative's lawyer requested the court not to fix hearings between 15 September and 15 October 1998 because of his vacation plans. 20. On 30 September 1998 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 January 1998. 21. On 17 February 1999 the applicant submitted a request for legal assistance, stating that she had not been able to contact a lawyer chosen by her. 22. At the hearing held on 9 June 1999 the court ordered an expert opinion concerning the construction costs. 23. On 2 July 1999 it requested the Office of the President of the Council of Ministers to submit documentation concerning the financing of the construction of the applicant's house. On 29 December 1999 the court repeated its request. 24. On 14 January 2000 the Office informed the court that it did not possess any such documentation. 25. On 19 January and 3 April 2001 the court held hearings. 26. On 22 February 2001, in reply to the applicant's complaint, the Ministry of Justice admitted that the proceedings were lengthy and informed her that they had been taken under the President of the Regional Court's administrative supervision. 27. On 10 April 2001 the applicant modified her claim and requested exemption from court fees. 28. On 18 June 2001 the court refused her request. On 30 August 2001 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision. 29. On 6 December 2001 the Regional Court summoned the applicant to pay a fee relating to her extended claim. 30. On 24 January 2002 it declined her request for an interim order. 31. On 18 June 2002 the court stayed the proceedings. On 9 December 2002 the Court of Appeal quashed that decision. 32. On 27 January 2003 the Regional Court rejected the applicant's additional claim of 10 April 2002, since she had not paid the due fee. On the same day it ordered an expert opinion. 33. On 10 April 2003 the court granted the applicant partial exemption from court costs. 34. The proceedings are still pending. | [
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7. The applicants, Ms Yelena Pavlovna Smirnova (“Y.S.”) and Ms Irina Pavlovna Smirnova (“I.S.”) are twin sisters. They are Russian nationals, who were born in 1967 and live in Moscow. 8. On 5 February 1993 criminal proceedings were initiated against the applicants on suspicion of defrauding a Moscow bank on a credit matter. The prosecution's case was that the applicants acted together to obtain a loan in the bank on the security of a flat which did not in fact belong to them. 9. On 26 August, according to the applicants, on 27 August 1995, according to the Government, Y.S. was arrested and remanded in custody. Several days later, on 31 August 1995, she was charged with large-scale concerted fraud. 10. On 5 September 1995 the proceedings against I.S. were discontinued. 11. Following Y.S.'s arrest, her lawyer lodged an application for release with the Tverskoy District Court of Moscow. On 13 September 1995 the court held that it was too late to examine the application for release as by that time the preliminary investigation had finished. 12. On 26 March 1996 the investigating authorities sent Y.S.'s case to the Tverskoy District Court for trial. 13. On 21 March 1997 the Tverskoy District Court found that the evidence gathered against Y.S., although serious, did not embrace all offences possibly committed by her. The court also found that the proceedings against I.S. should not have been stopped because there had been evidence of her involvement in the offence too. It was decided to remit the case against Y.S. for further investigation. The court of its own motion re-instituted criminal proceedings against I.S. and joined them to Y.S.'s case. It was furthermore ordered that Y.S. should stay in detention, and that I.S., at large at the moment, should be imprisoned as soon as the police established her whereabouts. 14. Both applicants lodged appeals against the decision of 21 March 1997, but on 23 July 1997 the Moscow City Court disallowed them. 15. Since I.S. continued to hide from the investigating authorities, it was decided to sever her case from that of her sister and to stay it. The term of Y.S.'s detention was extended.
First release of Y.S. 16. On 9 December 1997 the Lyublinskiy District Court of Moscow ordered that Y.S. should be released from custody because the extension of her detention had been unlawful and because of her poor health. She was released conditionally under the undertaking not to leave her permanent residence. 17. On 15 December 1997 the case against Y.S. was for the second time sent to the Tverskoy District Court for trial.
First detention of I.S. 18. On 30 March 1999, the police arrested I.S. and took her into custody. The proceedings against her were resumed.
Second detention of Y.S. 19. The second examination of the case against Y.S. by the Tverskoy District Court took place on 31 March 1999. The court noted that I.S. had by that time been arrested, and that given close factual links between the offences imputed to the sisters, the proceedings against them should be joined. The court also noted that Y.S. had not had sufficient opportunity to familiarise herself with the prosecution file before the hearing. As a result, the case against Y.S. was joined to that against I.S. and remitted for further investigation. 20. On the same day Y.S. was imprisoned on the ground of the gravity of the accusation. 21. The decision of 31 March 1999 became final on 13 May 1999 after it had been upheld on appeal by the Moscow City Court.
First release of I.S. 22. On 29 April 1999 the Lyublinskiy District Court granted I.S.'s application for release from custody because the investigating authorities had not submitted convincing material to justify her continued detention. The investigating authorities appealed against this decision, and on 19 May 1999 the Moscow City Court allowed the appeal. However, by that time I.S. had already left the prison. 23. On 20 May 1999 the Tverskoy District Court considered that the case against I.S. should be returned to the investigating authorities to be joined with the case against Y.S.
Second detention of I.S. 24. On 3 September 1999, I.S. was arrested and detained.
Second release of both applicants 25. On 2 October 1999 Y.S. was released from prison because the investigation had finished and because the detention period set by the General Prosecutor's Office had expired. 26. Shortly afterwards, on 7 October 1999, I.S. was also released. Both applicants signed an undertaking not to leave their permanent residence.
Trial. Third detention of Y.S. and I.S. 27. On 29 October 1999 the investigating authorities handed over the case file they had prepared to the Tverskoy District Court. On 10 November 1999 the judge who had accepted the case for consideration ruled that the applicants should be remanded in custody pending trial in view of the gravity of the accusations and “the applicants' character”.
Proceedings before the Constitutional Court. Third release of I.S. 28. On 14 January 2000 the Constitutional Court examined an application lodged earlier by I.S. The court ruled that Article 256 of the Code of Criminal Procedure was unconstitutional as far as it empowered criminal courts to initiate of their own motion criminal prosecution of third persons not being party to the original proceedings, to apply measures of restraint and to order further investigations. The court held that by initiating criminal proceedings the courts in essence assumed prosecutorial functions in violation of the principle of the separation of powers. 29. Based on the judgment of the Constitutional Court, on an unspecified date, the acting president of the Moscow City Court lodged an application for supervisory review of the applicants' case. 30. On 24 February 2000 the Presidium of the Moscow City Court granted the application. The decisions of 21 March and 23 July 1997 were quashed in respect of I.S. The decision of 31 March 1999 was quashed in respect of both applicants. The decisions of 13 and 20 May and 10 November 1999 were also quashed. The case against the applicants was sent for further investigation. I.S. was released, but her sister remained in prison.
Third release of Y.S. 31. On 20 March 2000 the Prosecutor of the Tverskoy District re-instituted criminal proceedings against I.S. The case against I.S. was joined to that of Y.S. 32. On 20 April 2000 the investigation of the applicants' case was finished. On 25 April 2000 the prosecution file and indictment were submitted to the Tverskoy District Court. The same day, Y.S. was released because of the expiry of the custody period.
Trial. Fourth detention of Y.S. and I.S. Their release 33. The examination of the applicants' case was scheduled for 9 June 2000. However, the hearing did not take place because the applicants had failed to appear even though they had been several times summoned for the service of the indictment. 34. The hearing was adjourned until 22 August 2000 but it again failed to take place since the applicant had not appeared before the court. 35. As the applicants persistently avoided the court proceedings and did not live at their permanent address, on 28 August 2000 the Tverskoy District Court ordered their arrest. The proceedings were stayed until the applicants were arrested. 36. On 12 March 2001 the applicants were arrested and detained. The court proceedings resumed and on 24 September 2001 the court extended the custody period for a further three months. 37. On 9 January 2002 the Tverskoy District Court found the applicants guilty and sentenced Y.S. to eight years' imprisonment with forfeiture of her estate, and I.S. to six years' imprisonment with forfeiture of her estate. 38. On 9 April 2002 the Moscow City Court annulled the judgment, closed the proceedings and discharged the applicants from serving the sentence under the statute of limitations. 39. The applicants were released in the courtroom. 40. When the investigating authorities were arresting Y.S. on 26 August 1995, they withheld her national identity paper – the “internal passport”. The passport was enclosed in the case file at the Tverskoy District Court. Y.S. made several unsuccessful attempts to recover the document, filing complaints to courts and prosecutors of various instances. 41. The lack of passport made Y.S.'s everyday life difficult. In December 1997 and April 1998 the Moscow Social Security Service and a law firm both refused to employ her because she did not have a passport. In December 1997 a Moscow clinic informed Y.S. that free medical care could only be provided to her if she presented an insurance certificate and her passport. For the same reason, in April 1998 the Moscow Telephone Company refused to install a telephone line in Y.S.'s home. On 2 June 1998 the Moscow City Notary Office notified Y.S. that she needed to verify her identity, for example, with a passport, if she wished to obtain notarial acts. On 10 December 1998 Y.S. was refused the registration of her marriage. On 19 March 1999 she was stopped by a police patrol for an identity check. As she was unable to produce the passport, she was taken to a police station and had to pay an administrative fine. 42. On 29 April 1998 the Office of the Moscow Prosecutor requested the Tverskoy District Court to return the passport. 43. On an unspecified date the President of the Tverskoy District Court informed Y.S. that the passport could be made available to her for certain purposes. But it should nonetheless remain in the case file because otherwise the authorities would not be able to tell Y.S. from her twin sister, who was in hiding. 44. On 29 June 1998 the President of the Tverskoy District Court confirmed that the passport should be retained in the case file. 45. On 31 March 1999 a police patrol came to the applicants' home to escort Y.S. to a court hearing. Both applicants were at home. Perplexed by their almost identical appearance, the police demanded that the applicants identify themselves or produce identity papers. Having met a refusal, and knowing that I.S. was also being looked for by the police, the patrol decided to arrest both applicants and took them to a police station. 46. On 6 October 1999, the investigation officer in charge of Y.S.'s case returned the passport to her. | [
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9. The applicant, Mr Celalettin Yöyler, is a Turkish citizen who was born in 1941 and is at present living in Istanbul (Turkey). Until June 1994 the applicant lived in the village of Dirimpınar, attached to the Malazgirt district in the province of Muş. Between 1966 and 1994 the applicant was the imam (religious leader) of the village. As a result of his involvement with a number of political organisations, including the Social Democratic Populist Party (SHP), the People's Labour Party (HEP) and the Democracy Party (DEP), of which he became the local leader, he was imprisoned on a number of occasions. The applicant left and had never returned to his village prior to the alleged events in question, since he had been threatened with death. The application concerns the applicant's allegations that State security forces destroyed his house. 10. The facts surrounding the destruction of the applicant's house are in dispute between the parties. 11. In 1994 three young women from the village, all of whom were related to the applicant's extended family, decided to join the PKK. 12. On 15 September 1994 the gendarme unit commander of Malazgirt came to the village and threatened to burn the village to the ground if the women were not brought to him within three days. 13. The applicant's family and the families of the young women, frightened by this threat, loaded up their possessions and fled. However, the gendarmes, accompanied by special teams, forced them to return to the village and to unload their possessions. They gathered the families into a house by force, where they assaulted certain of them, including the applicant's wife. They withdrew from the village telling the villagers to take good photographs of their houses, as that was all they would have to remember them by. 14. On 18 September 1994, at 8 p.m., special gendarme teams and village guards came to the village. Villagers were ordered to go into their homes and to turn off their lamps. The security forces then took diesel oil from the villagers' tractors and barrels and set fire to the houses of the applicant and his family. The applicant was out of the village, in İzmir, when his house was burned down. 15. On 23 September 1994 the applicant filed a criminal complaint with the Karşıyaka public prosecutor in İzmir for submission to the Malazgirt public prosecutor, calling for an on-site investigation and the institution of proceedings against the perpetrators. This document was registered as no. 35798 by the Karşıyaka public prosecutor's office. 16. On 24 September 1994 the applicant made a press statement through a human rights body, the Human Rights Association, which was carried the same day in the pro-Kurdish newspaper Özgür Ülke. 17. On 8 November 1994 the public prosecutor (no. 31583) sent a letter to the Gendarme Command in Malazgirt requesting a report on the matters raised in the applicant's allegations. He repeated his request in letters of 8 December 1994 (no. 30965) and 2 February 1995 (no. 31583). 18. By letter of 2 March 1995, the Gendarme Central Command in Malazgirt replied to the prosecutor's letter of 8 December 1994 by submitting the records of the statements they had taken. The prosecutor took further statements in May 1995, and the gendarme commander M.A. in June and November 1995. Since November 1995, there has been no development in the investigation. 19. The applicant left the village of Dirimpinar of his own free will, together with his spouse and children. He settled first in Adapazarı and then in Istanbul or Izmir. The Government submitted various records of the statements taken by the authorities in relation to the burning of the applicant's house.
(a) Statements taken on 29 May 1995 20. Mr Muhsettin Yöyler, the mayor (muhtar) of the village of Dirimpinar, stated to the public prosecutor that on the night of the incident, he had seen some persons setting fire to the applicant's house but as they had their faces covered, he had not been able to recognise them. He did, however, recognise one of them, Ahmet (A.K.), a village guard from the village of Nurettin.
The statement by the applicant's fellow villager, Mr Abdulcebbar Sezen, revealed that the applicant had not been in the village during the incident, but that his family had been.
(b) Statements dated 19 June 1995 before the gendarme commander M.A. 21. Mr Muhsettin Yöyler claimed that although he had seen the applicant's house burning, he had not seen who had set fire to it, as it was dark.
Mr Süleyman Yılmaz and Mr Ömer Sezen from the same village made identical statements.
(c) Statements of 22 November 1995 given by the applicant's fellow villagers to the gendarme commander M.A. 22. Mr Aydın Sezen declared before the same gendarme commander that the applicant had always acted in a subversive manner towards the State, that his house had indeed been burned, that he had not seen who had set fire to it, but it had definitely not been the security forces. He also added that all the villagers were pleased that the applicant had left the village. In a further statement, Mr Muhsettin Yöyler told M.A. that the applicant had always been a PKK supporter, that the applicant and his family had not been in the village on the night of the incident, that he had not seen who had set fire to the house, but that he was sure that it was not the security forces. He also stated that the applicant himself might perhaps have done it. 23. Mr Abdulcebbar Sezen was recorded as having declared to the police officer that the applicant was a member of the PKK, that he used to be a source of trouble in the village and that the villagers were pleased that he had left the village. He also stated that the applicant's house had definitely not been burned by the security forces or the gendarmes and that the security forces had always helped the villagers. 24. Mr Muhlis Umulgan recalled having declared that the applicant was collaborating with the PKK, that on the night of the incident he had seen the applicant's house burning but had been afraid to go out, as he knew that the PKK were in the region at the time. He added that the security forces had not set fire to the applicant's house. 25. As to Süleyman Yılmaz, he declared that the applicant had not been in the village when the incident had occurred, that three days before the fire his spouse and children had left the village as well, taking the furniture, and that although some days before the incident security forces had been in the village, they had not been there during the incident. He finally stated that he did not know who had set fire to the applicant's house but was sure that it had not been the gendarmes. 26. The investigation could not continue in the applicant's absence. According to a letter of 2 April 1995 from the Gendarme Central Command in Malazgirt, the applicant had left Dirimpınar for an unknown place, probably Adapazarı. 27. The documents contained under this heading concern the applicant's statement letters and his petitions to the authorities about his complaints as well as the statements made by several witnesses in support of the applicant's allegations.
(a) The applicant's statements and petitions concerning his allegations 28. The documents listed below pertain to the applicant's complaints about the destruction of his house by the Malazgirt gendarmerie forces.
(i) Petition by the applicant dated 23 September 1994 to the Karşıyaka public prosecutor's office for submission to the Malazgirt public prosecutor's office;
(ii) Letter from the applicant to Kerim Yıldız of the Kurdish Human Rights Project (“KHRP”) in London, containing his complaints about the destruction of his property;
(iii) A report dated 23 November 1994, signed by the applicant, setting out the sequence of the impugned events and the details of the property destroyed;
(iv) Letter of 11 May 2000 from the applicant to Kerim Yıldız and Philip Leach of the KHRP, in which he set out his efforts to exhaust domestic remedies in regard to his complaints;
(v) Letter of 4 July 2000 from the applicant to the KHRP concerning the statements taken by the gendarmerie from the muhtar, Muhsettin Yöyler.
(vi) Letter dated 9 December 2000 from the applicant to Kerim Yıldız of the KHRP, containing his comments about the statements taken by the gendarmes from his fellow villagers.
(b) Statements given by the applicant's witnesses 29. The witnesses mentioned below alleged in their statements that gendarmes had burned the applicant's house along with some other houses in Dirimpınar on 18 September 1994.
(i) Statements dated 20 May 2000 by Dilsa, Saliha, Leyla, Evin, Gülüstan and Ziri (Esma) Yöyler and Kutbettin Fırtına;
(ii) An undated statement by Ahmet Kınay and statements dated 23 December 1996 and 20 May 2000 by Bahattin Kınay;
(iii) Statement of 9 January 2001 by Bahattin Sezen;
(iv) Statement of 3 November 2000 Zeynel Abidin Daş together with his statement to the Sakarya Human Rights Association, also dated 3 November 2000.
(c) Press releases and articles 30. The applicant produced press releases and articles concerning the alleged destruction of his property by State security forces as well as the general situation in south-east Turkey at the relevant time.
(i) A Turkish Daily News article dated 15 September 1994;
(ii) Statement of 23 September 1994 by the applicant to the press complaining about the destruction of his property and explaining the general situation in south-east Turkey;
(iii) Özgür Ülke newspaper articles dated 24 September 1994 concerning the burning of the applicant's house along with other houses in villages in the Nusaybin and Malazgirt districts.
(d) Other documents
(i) A copy of a plan of the village of Dirimpınar;
(ii) A copy of the applicant's title deed, to his house, land and buildings in Dirimpınar;
(iii) Guiding Principles on Internal Displacement issued by the Office of the UN High Commissioner for Human Rights. 31. The documents listed below concern the statements taken from various witnesses in regard to the applicant's allegations and the investigation conducted by the national authorities into the impugned events as well as the criminal proceedings against the applicant for having been involved in the PKK.
(a) Statements taken from the applicant's fellow villagers 32. The witnesses mentioned below alleged in their statements to the authorities that they did not know or had not seen who had burned the applicant's house. They deny the applicant's allegations that the gendarmes burned his house. They claimed that the applicant was involved in the PKK and that for this reason nobody had wanted him in the village.
(i) Report dated 27 December 1994, containing statements by Muhsettin Yöyler, taken by the gendarmes, about the applicant's allegations;
(ii) Statements dated 28 April 1999, taken by the Malazgirt Chief Public Prosecutor, and made by Zilkif and Gürsel Polat, Abdulmuttalip, Abdulkerim and Abdulbaki Koçak and Celal Çelik;
(iii) Statements dated 29 April 1999, taken by the Malazgirt Chief Public Prosecutor, and made by Ali Haydar, Azmi, Yılmaz and Hüseyin Polat, İhsan Erkoçak, Mehmet, Kemal, Bahattin and Abdullah Koçak and Nizamettin and Ahmet Çelik.
(iv) Statement dated 20 May 2000 by Ahmet Kınay;
(v) Statements of 22 November 1995 and 20 June 2000 by Aydın Sezen;
(vi) Statements of 19 and 20 June 1995 and 20 and 23 June 2000 by Ömer Sezen;
(vii) Statements of 22 November 1995, 26 July 1996, 20 and 23 June 2000 by Muhlis Umulgan;
(viii) Statements of 19 and 20 June 1995, 22 November 1995 and 20 and 23 June 2000 by Süleyman Yılmaz;
(ix) Statements of 27 December 1994, 29 May 1995, 19 and 20 June 1995, 22 November 1995, 26 July 1996 and 20 and 23 June 2000 by Abdülcebbar Sezen;
(x) Statements of 27 December 1994, 29 May 1995, 19 and 20 June 1995, 22 November 1995, 26 July 1996 and 20 and 23 June 2000 by Muhsettin Yöyler.
(b) Documents concerning the domestic investigation 33. The documents below concern the authorities' investigation into the applicant's allegations of the destruction of his property by the gendarmes.
(i) Duty schedules of 15-20 September 1994;
(ii) Letters of 8 November 1994, 8 December 1994, 2 February 1995, 14 March 1995, 5 May 1995 and 7 August 1995 from the Malazgirt public prosecutor to the Gendarmerie Command in Malazgirt;
(iii) Letters of 2 March 1995, 21 April 1995 and 25 August 1995 from the Malatya District Gendarmerie Commander to the public prosecutor's office in Malazgirt;
(iv) Report dated 18 April 1994 drafted by the gendarmes;
(v) Assessment report of the scene of the incident, dated 19 June 1995 and drafted by the gendarmes;
(vi) Report dated 2 August 1995 drafted by the gendarmes;
(vii) Letter of 23 October 1995 from public prosecutor no. 30965 to the Magistrates' Court in Malazgirt;
(viii) Letter of 3 October 1996 from the Malazgirt District Governor to Mr Metin Alacuklu, an agricultural engineer, who was appointed as an inspector by the District Council;
(ix) Letter of 16 October 1996 from the Malazgirt District Governor to the Magistrates' Court;
(x) Letter of 16 October 1996 from the Malazgirt District Governor to the Malazgirt District Gendarme Command;
(xi) Letter of 6 November 1996 from the Malazgirt public prosecutor to the District Governor;
(xii) Letter of 7 November 1996 from the Malazgirt Deputy District Commander to the Directorate of Agriculture in Malazgirt;
(xiii) Investigation report of 19 November 1996 by Metin Alacuklu for submission to the District Governor's office;
(xiv) Letter of 19 November 1996 from Metin Alacuklu to the Malazgirt District Governor;
(xv) Decision of 15 January 1997 by the Commission on the Prosecution of Civil Servants to discontinue the proceedings against the gendarme officers accused of destruction of the applicant's property;
(xvi) On-site report of 16 January 1997 by the The Malazgirt Chief Public Prosecutor;
(xvii) Inspection report of 16 January 1997 concerning the burned buildings in the village of Dirimpınar;
(xviii) Expert report and sketch maps dated 21 January 1997 on the burning of houses in Dirimpınar;
(xix) Letter of 27 January 1997 from the Malazgirt Deputy Mayor to the public prosecutor's office in Malazgirt;
(xx) Investigation report by the Malazgirt Chief Public Prosecutor for submission to the Chief Public Prosecutor's office in Muş;
(xxi) Letter of 25 March 1997 from the Malazgirt District Governor to the Van Admistrative Court;
(xxii) The Van Administrative Court's decision of 1 April 1997 to uphold the decision given by the Commission on the Prosecution of Civil Servants on 15 January 1997;
(xxiii) Letter of 4 June 1997 from the Muş Public Prosecutor to the Muş Assize Court and the latter's letter of the same day in reply;
(xxiv) Letter of 5 June 1997 from the Muş Public Prosecutor to the Muş Assize Court and the latter's letter of the same day in reply;
(xxv) Decision of non-jurisdiction by the Malazgirt Chief Public Prosecutor, dated 6 June 1997;
(xxvi) Report dated 30 September 1997 signed by the Dirimpınar village muhtar, Mr Muhsettin Yöyler, and two of his fellow villagers;
(xxvii) Permanent search warrant dated 14 November 1997 issued by the Malazgirt public prosecutor to find the perpetrators of the burning of the applicant's house;
(xxviii) Reports dated 4 February 1998, 19 May 1998, 20 September 1998, 22 December 1998 and 17 September 1999 signed by the Dirimpınar village muhtar, Muhsettin Yöyler, and two gendarmes;
(xxix) Letters of 8 February 1998, 24 June 1998 and 6 April 1999 from the Malazgirt Deputy District Commander to the Malazgirt public prosecutor;
(xxx) Letters of 29 March 1998, 24 June 1998, 23 September 1998, 5 May 1999 and 22 September 1999 from the Malazgirt District Gendarme Commander to the Malazgirt Chief Public Prosecutor;
(xxxi) Letters of 11 March 1999 and 24 April 1999 from the Malazgirt public prosecutor to the Malazgirt Gendarme Command;
(xxxii) Report dated 24 March 1999, drafted and signed by three gendarmes;
(xxxiii) Letter of 1 October 1999 from the Malazgirt Public Prosecutor to the Chief Public Prosecutor's office in Muş;
(xxxiv) Undated documents indicating that Abdulcebbar Sezen and Celalettin Yöyler were no longer resident in the village, drafted by the village muhtar, Muhsettin Yöyler.
(c) Criminal proceedings against Ahmet Kınay 34. These documents concern the criminal proceedings brought against Ahmet Kınay, the applicant's fellow villager, for allegedly setting the applicant's house on fire. Ahmet Kınay was acquitted of the charges in a judgment of 6 May 1997 by the Muş Assize Court.
(i) Copy of a birth certificate belonging to Ahmet Kınay dated 23 October 1995;
(ii) Letter of 23 October 1995 from the Sakarya Chief Public Prosecutor to the Ministry of Justice;
(iii) Letter of 23 October 1995 from the Sakarya Security Director to the Sakarya Chief Public Prosecutor's office;
(iv) Report dated 23 October 1995 drafted by police officers in Sakarya;
(v) Arrest warrant in absentia, issued by the Malazgirt Magistrates' Court on 25 October 1995, against Ahmet Kınay;
(vi) Report dated 13 November 1996 for the arrest of Ahmet Kınay;
(vii) Body search report concerning Ahmet Kınay;
(viii) Petition of 15 November 1996 by Ahmet Kınay filed with the Sakarya public prosecutor's office for submission to the Malazgirt public prosecutor's office;
(viii) Letters of 15 November and 26 December 1995 from the Malazgirt public prosecutor to the Chief Public Prosecutor's office in Adapazarı;
(ix) Letter of 15 December 1995 from the Sakarya Security Director to the Public Order Department;
(x) Petition of 18 November 1996 filed by Ahmet Kınay with the Sakarya Criminal Court on duty, for submission to the Malazgirt Criminal Court, which includes his request for release;
(xi) Petition of 18 November 1996 from the representative of Ahmet Kınay to the Chief Public Prosecutor's office in Sakarya for submission to the Chief Public Prosecutor's office in Malazgirt;
(xii) Decision of non‑jurisdiction by the Malazgirt Chief Public Prosecutor, dated 9 September 1996, addressed to the Malazgirt District Administrative Council;
(xiii) Decision of 9 September 1996 by the Malazgirt Chief Public Prosecutor to sever the criminal proceedings against the gendarmes from the criminal proceedings against Ahmet Kınay;
(xiv) Indictment of 7 February 1997 by the Muş Chief Public Prosecutor against Ahmet Kınay charging the latter with setting the applicant's house on fire;
(xv) Decision of 31 January 1997 by the Muş Chief Public Prosecutor ordering the continued detention of Ahmet Kınay, who was accused of setting the applicant's house on fire;
(xvi) Minutes of the preliminary hearings before the Muş Assize Court concerning the trial of Ahmet Kınay, dated 7 February 1997 and 6 March 1997;
(xvii) Judgment of 6 May 1997 by the Muş Assize Court which acquitted Ahmet Kınay of burning the applicant's house.
(d) Criminal proceedings brought against the applicant 35. The documents under this heading concern the criminal proceedings instituted against the applicant on account of his alleged involvement in the PKK.
(i) Judgment of 10 March 1992 by the Erzincan State Security Court which acquitted the applicant of the charges of having been involved in subversive activities and of membership of the PKK;
(ii) Supplementary decision of 24 September 1992 by the Malazgirt Chief Public Prosecutor to discontinue the criminal proceedings against the applicant on charges of involvement in the PKK;
(iii) Supplementary decision of 24 November 1992 by the Malazgirt Chief Public Prosecutor to discontinue the criminal proceedings against the applicant on charges of membership of the PKK;
(iv) Decision of 11 March 1992 by the Malazgirt Chief Public Prosecutor to discontinue criminal proceedings against the applicant;
(v) Decision of 27 March 1992 by the Court of Cassation to uphold the first instance court's decision to refuse the applicant's request to change his family name;
(vi) Decision of 10 February 1994 by the Chief Public Prosecutor at the Diyarbakır State Security Court to discontinue the proceedings against the applicant on charges of aiding and abetting the PKK. 36. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this connection, three Delegates of the Court (Mr A. Pastor Ridruejo, Mr M. Pellonpää and Mrs S. Boutoucharova) took oral evidence from 2 to 5 April 2001 from thirty witnesses. A further four witnesses had been summoned but did not appear for various reasons. The Delegates took evidence from the following witnesses [Nota: The verbatim records of the evidence given by the witnesses are available to the public at the Court's archives.]:
(1) Celalettin Yöyler;
(2) Dilsa Yöyler;
(3) Saliha Yöyler;
(4) Leyla Yöyler;
(5) Gülistan Yöyler;
(6) Evin Yöyler;
(7) Ahmet Kınay;
(8) Bahattin Kınay;
(9) Esma (Ziri) Yöyler;
(10) Kutbettin Fırtına;
(11) Zeynel Abidin Daş;
(12) Mehmet Şirin Yıldız;
(13) Selahattin Yıldırım;
(14) Serhat Yöyler;
(15) Hakan Tekin;
(16) Halil İbrahim Akkan;
(17) Muhsettin Yöyler;
(18) Abdulcabbar Sezen;
(19) Muhlis Umulgan;
(20) Ömer Sezen;
(21) Ahmet Çelik
(22) İsmail Mezgil;
(23) Süleyman Yılmaz;
(24) Fuat Girişken;
(25) Mustafa Akkan;
(26) Erdal Yanıker;
(27) Halil İbrahim Kuş;
(28) Sacit Savaşçı;
(29) Cengiz Yıldız;
(30) Turgut Abaş. | [
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10. The applicant was born in 1955 and lived in Vienna. 11. From 1989 the applicant lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat. 12. In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating the applicant as his heir. 13. In 1995 the landlord of the flat brought proceedings against the applicant for termination of the tenancy. On 6 January 1996 the Favoriten District Court (Bezirksgericht) dismissed the action. It considered that section 14(3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship. 14. On 30 April 1996 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the landlord's appeal. It found that section 14(3) of the Rent Act was intended to protect persons who had lived together for a long time without being married against sudden homelessness. It applied to homosexuals as well as to persons of opposite sex. 15. On 5 December 1996 the Supreme Court (Oberster Gerichtshof) granted the landlord's appeal, quashed the lower court's decision and terminated the lease. It found that the notion of “life companion” (Lebensgefährte) in section 14(3) of the Rent Act was to be interpreted as at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex. 16. On 26 September 2000 the applicant died. 17. On 11 November 2001 the applicant's lawyer informed the Court of the applicant's death and that his mother had waived her right to succeed to the estate. He asked the Court not to strike the application out of its list before the public notary handling the applicant's estate had traced other heirs. 18. On 10 April 2002 the applicant's lawyer informed the Court that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate. | [
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7. The applicant was born in 1949 and lives in Ninovka, a village in the Belgorod region of Russia. 8. On an unspecified date the applicant brought proceedings against the Novooskolskiy branch of the Savings Bank of Russia, the Savings Bank of Russia and the State. She claimed that the value of her personal savings that had accrued in her accounts by 1991 had significantly dropped following the economic reforms. Her savings were the result of decades of hard work, and she had intended to buy a flat with the money. However, the State had not revalued the amounts on deposit to offset the effects of inflation, as it had been required to do by the Law on revaluation and protection of the savings of citizens of the Russian Federation enacted on 10 May 1995 (Федеральный закон «О восстановлении и защите сбережений граждан Российской Федерации» – “the Savings Act”). 9. On 30 December 1997 the Novooskolskiy District Court, presided over by Judge Lebedinskaya, found in the applicant's favour and awarded her 129,544,106 roubles[1] (RUR) payable by the State treasury. The court rejected the defendants' main argument that the reimbursement scheme under the Savings Act could not be implemented in practice since no special secondary legislation had been passed. Noting that the Savings Act recognised the guaranteed deposits as the State's internal debt and that the State had not introduced the necessary rules in time to enable the debt to be repaid, the court held that the defendants were liable under the civil law. 10. On 28 February 1998 the judgment was set aside on appeal by the Belgorod Regional Court and the case remitted for a retrial. 11. On 8 June 1998 the Novooskolskiy District Court, sitting in the same composition, delivered a judgment similar to its judgment of 30 December 1997. The award, however, was readjusted to RUR 133,963.70. No appeal was lodged against the judgment and it became final ten days later, on 18 June 1998. 12. Enforcement proceedings commenced on 18 January 1999. 13. On an unspecified date in 1999, while the enforcement proceedings were in progress, the President of the Belgorod Regional Court lodged an application for supervisory review (протест в порядке надзора) of the judgment of 8 June 1998, on the ground that it conflicted with substantive laws. 14. The application was examined on 19 March 1999 by the Presidium of the Belgorod Regional Court. Having accepted the reasons set out in the application, the Presidium set aside the judgment of 8 June 1998 and dismissed the applicant's claims altogether. The applicant was not informed that the application for supervisory review had been lodged, or invited to attend the hearing before the Presidium. 15. On 17 June 1999 the enforcement proceedings were discontinued. 16. On 4 January 2001 a deputy president of the Supreme Court lodged an application for supervisory review of the judgment of the Presidium of 19 March 1999. 17. On 22 January 2001 the Supreme Court granted the application for supervisory review. It upheld the reasons given by the Presidium for setting aside the judgment of 8 June 1998, but ruled that the applicant's case should not have been dismissed in full, as she had thereby been unjustly deprived of the right to seek reimbursement of the money. It also acknowledged that the applicant's right to be informed that the Presidium was reviewing her case had not been respected. The case was remitted to the Novooskolskiy District Court for a fresh examination. 18. On 4 June 2001 the same composition of the Novooskolskiy District Court delivered its third judgment in the applicant's favour. The award included RUR 188,724 as compensation for devaluation and RUR 60,000 in respect of non-pecuniary damage. The court stated that the government's systematic delaying of its obligation to revalue the applicant's savings had caused her moral suffering and anguish. 19. On 14 August 2001 the judgment was set aside on appeal by the Belgorod Regional Court and the case remitted for re-examination. 20. On 19 September 2001 the Novooskolskiy District Court, sitting in the same composition, once again reaffirmed its position by awarding compensation in the same amount as in its judgment of 4 June 2001. 21. On 30 October 2001 the appellate court quashed the judgment and remitted the case for a fresh examination by the Novooskolskiy District Court. As it was permitted to do by Article 305-2 of the Code of Civil Procedure, it ordered that the case should be retried by a different bench. 22. On 27 February 2002 the Novooskolskiy District Court, presided over by Judge Ziminov, dismissed the applicant's case on the ground that her claims had no basis in law. 23. On 2 April 2002 that judgment was upheld by the Belgorod Regional Court. 24. On 8 May 2002 the Presidium of the Belgorod Regional Court quashed the judgment following an application by the President of the Regional Court for supervisory review. The Presidium held that the courts below had disregarded the applicant's fundamental rights under the Constitution and the Convention. 25. On 10 June 2002 the Novooskolskiy District Court, sitting in the same composition, delivered a new judgment in which, having regard, inter alia, to Article 1 of Protocol No. 1 to the Convention, it granted the applicant's claim in part and awarded her RUR 231,059.19. 26. The defendants' appeal was dismissed on 16 July 2002 by the Belgorod Regional Court, following which the judgment of 10 June 2002 became final. 27. On 1 November 2002 the applicant and a deputy president of the government of the Belgorod Region signed a settlement agreement, in which the applicant promised to abandon her claims arising out of the judgment of 10 June 2002 for a consideration of RUR 248,724. On the same day the agreement was approved by the Novooskolskiy District Court in a consent order, as requested by the parties. 28. On 6 November 2002 the applicant lodged an application with the Belgorod Regional Court to have the consent order of 1 November 2002 set aside. 29. On 19 November 2002 the applicant withdrew that application. She said that the government had bought her a flat in Novyi Oskol for RUR 330,000, and that she had no more claims against the State. 30. On 23 March 2003 the applicant informed the Court that the price of the flat did not cover the damage sustained by her because the money she had had in her savings account in 1991, if converted into United States dollars, would exceed the price of the flat. The applicant asked the Court for an order enabling her to recover the difference from the State. | [
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6. The applicant was born in 1930 and lives in Brwinów, Poland. 7. On 3 February 1994 the applicant asked the Pruszków District Court (Sąd Rejonowy w Pruszkowie) to declare that he acquired property by prescription. 8. On 16 November 1994 the court held the first hearing. 9. In 1995 and 1996 the court held eight hearings at which it heard witnesses. 10. In 1997 the court scheduled five hearings. They were all adjourned either because the participants or witnesses were not properly notified about the hearings or they were absent for another reason. 11. From 20 February to 29 December 1998 the court listed seven hearings. Most of them were adjourned. 12. On 15 January 1999 the court ordered an inspection of the land register. 13. On 21 August 2000 the court, sitting in camera, called as participants four persons and stayed the proceedings. 14. It appears that the applicant appealed against this decision but her appeal was never examined. 15. On 2 March 2001 the court, sitting in camera, resumed the proceedings. It further established that one of the participants in the proceedings had died and stayed the proceedings again. 16. On 22 May 2001 the court, sitting in camera, resumed the proceedings and called two persons as participants. 17. The applicant submits that since December 1998 no hearings have been held and that the proceedings are pending before the Pruszków District Court. | [
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7. On 16 August 1994 the applicant applied for benefits under the General Labour Disability Act (Algemene Arbeidsongeschiktheidswet – “AAW”) for incapacity to work since birth. On 16 February 1995, the New General Occupational Association (Nieuwe algemene bedrijfsvereniging – “NAB”) rejected his request. On 17 March 1995 the applicant’s lawyer filed an appeal with the Administrative Law Division of the Utrecht Regional Court (arrondissementsrechtbank). 8. On 27 April 1995 the Registrar to the Utrecht Regional Court informed the applicant’s lawyer that the appeal could only be examined after payment of registration fees amounting to 50 Netherlands Guilders (NLG). On 12 May 1995 the applicant paid these fees, which were received by the Regional Court on 19 May 1995. 9. On 11 August 1995 the Utrecht Regional Court requested the NAB to submit its response to the applicant’s appeal, as well as documents relating to the case. It sent a reminder to the NAB on 12 September 1995. 10. On 14 September 1995, not having heard anything from the Regional Court since 27 April 1995, the applicant’s lawyer requested information from the Regional Court about the state of affairs. On the same day the Regional Court granted a request filed by the NAB to be allowed more time for the submission of the documents which the court had requested. 11. On 5 October 1995 the applicant submitted to the Regional Court a report from a psychiatrist, Mr M., according to which the applicant was incapacitated for work and that the reasons for his incapacity had existed since birth. 12. On 13 October 1995 the NAB filed a second request with the Regional Court for a postponement of the submission of the documents requested. The court granted this request. The NAB filed a third request for postponement on 14 November 1995. 13. As he had still received no reply from the Regional Court, the applicant’s lawyer sent a further request for information on 30 November 1995. 14. On 15 December 1995 the NAB filed a fourth request for postponement with the Regional Court. On 18 December 1995, the court informed the NAB that a postponement of four weeks had been granted, but that no further extension would be granted. In the absence of any submissions from the NAB, the Regional Court would proceed with the examination of the applicant’s case. 15. On 8 January 1996 the NAB submitted its response to the applicant’s appeal as well as a number of documents. The Regional Court transmitted these submissions to the applicant’s lawyer on 11 January 1996. 16. On 24 January 1996 the Regional Court commenced its examination. On the basis of preliminary conclusions reached, it requested the NAB on 20 June 1996 to provide further information and submissions on the merits of the case. On 16 July 1996, the NAB requested a postponement for these submissions. 17. On 18 July 1996 the Regional Court transmitted a copy of the report of Mr M. to the NAB. On 12 August 1996, the NAB submitted further documents to the Regional Court as well as a reaction to Mr M.’s report from a social security medical officer. These submissions were transmitted to the applicant on 28 August 1996. The applicant replied on 13 September 1996. His response was transmitted to the NAB on 3 October 1996. 18. On 2 December 1996 the Regional Court requested the NAB to explain why it had considered itself competent to determine the applicant’s request of 7 September 1994 rather than transmit it to the Occupational Association for the Consumer Meat Industry (Bedrijfsvereniging voor het Slagers- en Vleeswarenbedrijf, de Groothandel in Vlees en de Pluimveeslachterijen). The NAB was requested to submit its answer within four weeks. On 20 December 1996, the NAB requested an extension of that time-limit. 19. On 16 January 1997 the applicant filed further documents with the Regional Court. These were transmitted to the NAB on 21 January 1997. 20. On 30 January 1997 the NAB informed the Regional Court that, although this could not be determined with certainty, it was very likely that the applicant had in fact been insured under the AAW with the Occupational Association for the Consumer Meat Industry and that it could no longer be traced why his request for AAW benefits had not been transmitted to this Occupational Association. The NAB noted in addition that in the decision of 16 February 1995 no adequate reply had been given to the applicant’s request for benefits, in that the applicant claimed to have been incapacitated as from birth, whereas the decision of 16 February 1995 only concerned a period starting on 29 May 1986. 21. On 4 February 1997 the Regional Court transmitted the further submissions of the NAB to the applicant’s lawyer. 22. On 24 February 1997, the Regional Court informed the applicant’s lawyer that its preliminary examination had now been completed and that, in the court’s view, the case was now ready for decision. The Regional Court asked whether the parties could agree to a determination of the appeal without a hearing, in accordance with Article 8:57 of the General Administrative Law Act (Algemene Wet Bestuursrecht). 23. On 25 February 1997 the applicant’s lawyer informed the Regional Court that he wished to have a hearing. The applicant’s lawyer further drew the court’s attention to the fact that the case had now been pending for two years before the Regional Court and, referring to the case-law of the Convention organs under Article 6 § 1 of the Convention, argued that it was unlikely that such a duration, for a mere jurisdictional decision, was compatible with the “reasonable time” requirement of that Convention provision. 24. On 1 March 1997 the National Social Insurance Institute (Landelijk Instituut Sociale Verzekeringen – “LISV”) replaced the NAB. 25. On 8 April 1997 the Regional Court informed the applicant’s lawyer that a hearing had been scheduled for 6 May 1997 at 11.10 a.m. On 9 April 1997 the applicant’s lawyer requested a postponement of the hearing as he had to appear before a different Regional Court in another case on the same day at around the same time. 26. Confirming an agreement reached over the telephone on 14 April 1997, the Regional Court informed the applicant’s representative on 25 April 1997 that the hearing scheduled for 6 May 1997 would proceed as planned. On 1 May 1997, the applicant’s lawyer informed the Regional Court of the name of a colleague who would represent the applicant at the hearing. The hearing before the Regional Court in the applicant’s case was held on 6 May 1997. 27. In its decision of 13 June 1997, the Regional Court held that the decision of 16 February 1995 failed to give an adequate reply to the applicant’s request for AAW benefits on grounds of an incapacity to work from birth, as the decision was based on an incapacity to work as from 29 May 1986. It further held that the NAB had not been competent to determine the applicant’s request. This should have been done by the Occupational Association for the Consumer Meat Industry. Consequently, the Regional Court quashed the decision of 16 February 1995, ordered the LISV to take a new decision and to reimburse the registration fees paid by the applicant to it. Costs were also ordered against the LISV. 28. On 16 July 1997 the applicant filed an appeal with the Central Appeals Tribunal (Centrale Raad van Beroep), requesting the Central Appeals Tribunal to quash the decision of 13 June 1997 and to award him, as from 1 October 1976, social security benefits on the basis of an 80-100% incapacity to work. 29. On 18 July 1997 the LISV also filed an appeal against the decision of 13 June 1997 with the Central Appeals Tribunal. However, by letter of 27 August 1997, the LISV informed the applicant’s lawyer that it had decided to withdraw its appeal and that the applicant’s case-file had been transmitted to the Occupational Association for the Consumer Meat Industry for a new decision on the applicant’s request for benefits for his incapacity to work. 30. On 18 September 1997 the Central Appeals Tribunal informed the applicant’s lawyer that, to date, he had not submitted any grounds for the appeal that he had lodged. He was invited to remedy this within four weeks. 31. On 14 October 1997 the applicant’s lawyer submitted his grounds of appeal to the Central Appeals Tribunal, including a reference to a letter of 26 September 1997 in which the Occupational Association for the Consumer Meat Industry had stated that it could not be excluded that it would conclude that it was not competent to determine the applicant’s request for AAW benefits. These grounds of appeal were transmitted to the LISV on 3 November 1997. 32. On 24 December 1997 the LISV submitted its response to the applicant’s appeal, which was transmitted to the applicant’s lawyer on 7 January 1998. 33. On 17 March 1998, the applicant’s lawyer requested information from the administration of the Occupational Association for the Consumer Meat Industry about the applicant’s request for benefits. On 5 May 1998 the administration office informed the applicant’s lawyer that, given the appeal apparently lodged against the decision of 13 June 1997 and pending the outcome of that appeal, it was unable to take a new decision on the applicant’s request. On 13 May 1998 the applicant’s lawyer transmitted a copy of that letter to the Central Appeals Tribunal, requesting that it be included in the case-file. 34. On 22 September 1998 the Central Appeals Tribunal informed the parties that a hearing had been scheduled for 28 October 1998. In its decision of 25 November 1998, following the hearing on 28 October 1998, the Central Appeals Tribunal upheld the decision of 13 June 1997. It did, however, partially amend the reasoning to the effect that the LISV should first determine which organ was in fact competent to decide on the applicant’s request. On this point, it held:
“In the preparation of the new decision to be taken, [the LISV] must consider, on the basis of inter alia the exact employment history of the applicant, which social security implementation agency (uitvoeringsinstelling) must take that decision on behalf of [the LISV] by virtue of the LISV Mandate Order (Mandaatsbesluit) of 3 March 1997... On the basis of the information currently available [the Central Appeals Tribunal considers that], differing from the Regional Court, this is still unclear.” 35. On 26 May 1999, with reference to a previous letter of 21 December 1997, the LISV informed the applicant’s lawyer that, after an investigation, the competent organ to determine the applicant’s request had been identified, namely the Joint Administration Office (Gemeenschappelijk Administratiekantoor – “GAK”) Nederland BV. 36. By decision of 21 July 1999, GAK Nederland BV granted the applicant, as from 16 August 1993, benefits on the basis of an 80‑100% incapacity to work, the arrears amounting to a net sum of NLG 64,333.47 (29,193.26 euros (EUR)). On 20 September 1999, the applicant was awarded a further amount of NLG 23,484.74 (EUR 10,656.91) in statutory interest on the arrears. | [
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9. The applicants were born in 1929 and 1923 respectively. The applicant in application no. 43185/98 (“Dr Price”) is a consultant psychiatrist; the applicant in application no. 43186/98 (“Mrs Lowe”) is a medical secretary. They live in Lincoln. 10. The applicants, together with Dr Price’s wife, were sued by “K”, a former patient of Dr Price, in respect of property in Florida. The writ was issued on 12 February 1986. Before the action came to trial, the plaintiff was adjudicated bankrupt on 9 August 1989 and the trustee in bankruptcy continued the action. 11. The trial was set down to commence in the High Court in August 1994 but was postponed until the end of September 1994 because the judge was not available for the length of time needed for the hearing. 12. On the fourth day of trial, while K was being cross-examined, an adjournment was granted because K claimed to feel unwell. In the event, it emerged that no medical justification could be given for his continued non-attendance, but nonetheless he remained absent for the rest of the trial. Because of the delay caused by K’s non-attendance, the trial could not be concluded in September 1994 and had to be adjourned until January 1995. Judgment was given on 27 April 1995. 13. The judge accepted the argument of the applicants and Mrs Price that it was necessary to disregard K’s evidence because of his failure to remain for cross-examination. However, on the basis of the documentary evidence and that adduced by the applicants and Mrs Price, the judge found that the transfer of the Florida property should be set aside on the ground that the defendants had not been able to rebut the presumption of undue influence created by the discrepancy in the price they paid K for the property and its value at the time of the transfer, together with the doctor-patient relationship between Dr Price and K. 14. The formal record of the judge’s order was not prepared by the parties until 26 October 1995. The applicants and Mrs Price applied to the Court of Appeal for leave to appeal on 1 November 1995. The appeal bundles were lodged on 4 October 1996. On 15 January 1997 the appeal was listed for hearing, and it was heard on 16 and 17 April 1997, on which last date the Court of Appeal gave judgment dismissing the appeal. 15. In connection with the moneys paid by Dr Price for the property, the Court of Appeal confirmed the decision of the trial judge that the sum should be repaid, but that no interest should be paid on it. The trial judge had based his decision on the fact that Dr Price “had had possession of the properties and receipt of the rents since the completion of the sale, subject only to the agreement to allow [K] to use number 212 in the early months”. Lord Justice Nourse regarded this as a “rough and ready result”, but one which would “reduce the opportunities for further dispute between the parties”. 16. On 19 April 1997 the applicants and Mrs Price were refused leave by the Court of Appeal to appeal to the House of Lords. On 30 March 1998 the applicants and Mrs Price were refused leave to appeal by the House of Lords. | [
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7. The applicants, Mr M.M. and Ms E.M.M., were born in 1988 and 1990 respectively. They live in Ostrołęka, Poland. 8. On 26 August 1994 the applicants' mother was murdered by Mr J.M. – her husband and the father of the applicants. Subsequently, Mrs R.D. was appointed as the applicants' foster parent. Mr J.M. was deprived of his parental rights and on 15 October 1998 the Warsaw Regional Court convicted him of murder. It appears that he was later declared unworthy of inheriting his wife's estate and that the applicants were declared her heirs. 9. On 14 June 1996 the applicants initiated before the Warsaw District Court (Sąd Rejonowy w Warszawie) civil proceedings concerning division of their late mother's estate and the matrimonial property (o podział majątku dorobkowego i dział spadku). Mr J.M. was a party to those proceedings. 10. Subsequently, Mrs R.D. applied for an interim measure to appoint her as an administrator of a flat in Warsaw which belonged to the applicants' parents and was the most valuable part of their matrimonial property. It had been unoccupied since 1994 but Mrs R.D. had been paying all maintenance costs and wanted to prevent its further destruction, as the flat had been burgled on several occasions. 11. The first hearing was held on 19 December 1996. 12. On 5 February 1997 the Warsaw District Court, sitting in camera, allowed Mrs R.D.'s application for an interim measure. However, following Mr J.M.'s appeal, on 27 May 1997 the Warsaw Regional Court (Sąd Wojewódzki w Warszawie) quashed this decision and dismissed the application. 13. From 1 October 1997 to 28 January 1999 the District Court listed five hearings. Most of them were adjourned. 14. On 8 November 2000 the court, sitting in camera, stayed the proceedings. 15. The applicants appealed against this decision and on 14 December 2000 the Warsaw District Court allowed their appeal and quashed it. 16. Between October 1998 and July 2001 no hearings were held. 17. On 25 July 2001 the parties reached a friendly settlement according to which the applicants were granted the flat and their father kept all flat's equipment and a car. 18. Mr J.M. lodged an appeal against the settlement but on 20 February 2002 the Warsaw Regional Court dismissed it. | [
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6. The applicant was born in 1932 and lives in Ożarów Mazowiecki, Poland. 7. Since 1969 the applicant had been receiving a monthly pension from the State Insurance Company (Państwowy Zakład Ubezpieczeń). It appears that in 1987 the company stopped the payments. 8. On 10 May 1993 the applicant lodged with the Pruszków District Court (Sąd Rejonowy w Pruszkowie) an action for payment against the State Insurance Company. The applicant also requested a revaluation of the amount of the pension which would reflect the inflation. 9. It appears that the first and the second hearing, scheduled for 24 May and 2 June 1993, were adjourned because of the absence of the defendant. 10. From 9 September 1993 to 26 February 2001 the District Court listed twenty-three hearings. Most of them were adjourned. It also obtained four expert opinions. 11. On 12 March 2001 the Pruszków District Court gave judgment. It partly allowed the applicant’s claim and increased the amount of his pension. 12. On 6 December 2001, on the applicant’s appeal, the Warsaw Regional Court upheld that judgment. | [
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7. The applicant, born in 1972, is detained in Rampton Hospital. 8. In July 1973 the applicant and her three siblings were admitted to foster care by the local authority, following reports that their mother was unable to care for them and of squalid living conditions. 9. In May 1976 the applicant and her sister were placed with Mr and Mrs D. Over the following thirteen years the local authority noted various concerns about the placement. In 1980 matters had deteriorated to the extent that the girls were almost removed. A 1981 memorandum stated that they showed many signs of emotional disturbance. In 1984 and 1985 Mr and Mrs D. resisted a number of attempts by social workers to see the girls alone. 10. In 1989 the girls made allegations of physical and sexual abuse although no prosecution was brought. In June 1989 both made suicide attempts. In August 1989, the applicant finally left Mr and Mrs D. She was subsequently convicted of various offences, including assault and arson. She was admitted to psychiatric hospitals on a number of occasions and since 1993 has been detained in Rampton Hospital, with a diagnosis of mental illness and psychopathic disorder. 11. In 1995 the applicant issued proceedings in negligence against the local authority. A psychiatric report was prepared in which the applicant’s account of the horrific abuse she had endured was set out. It included details of how she and her sister had been deprived of food, severely beaten, locked in their room, denied access to the toilet and treated as slaves. The report concluded that the applicant’s traumatic upbringing had significantly contributed to her mental disorder, the symptoms of which included self-mutilation, mood disorder and anti-social behaviour. The applicant had not been aware of any sexual abuse, but her sister later made a statement, in support of a claim by the applicant for criminal injuries compensation, in which she detailed physical and sexual abuse. 12. In 1996 the High Court struck out the negligence claim as disclosing no reasonable cause of action, on the basis that there was no duty of care owed by a local authority to children in its care in English law at the time. In 1999 the applicant was awarded 50,000 pounds sterling (GBP) by the Criminal Injuries Compensation Authority, in respect of the abuse by her foster-parents and for a separate claim relating to an assault. | [
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9. The applicant, Mr Vladimir Ivanov Hristov, is a Bulgarian national who was born in 1952 and lives in Plovdiv. 10. The applicant was arrested on 10 September 1993 on charges that he had used forged documents in order to obtain unlawfully an excise tax refund in the amount of 15,855,800 Bulgarian levs (the equivalent of 615,175 US dollars at the relevant time). The applicant had acted in concert with three other persons all of whom later submitted applications raising complaints under Articles 5 and 6 of the Convention (see Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, and the cases of Mihov v. Bulgaria, no. 35519/97, and Al Akidi v. Bulgaria, no. 35825/97). 11. The charges preferred against the applicant were based on Article 212 § 4 of the Penal Code, which provided for a sentence of ten to twenty years’ imprisonment. The accusations concerned alleged false certification of fictitious exports of consignments of cigarettes which in reality had been sold in the country. 12. On 5 April 1994 the preliminary investigation was completed and an indictment was submitted to the Plovdiv Regional Court. The prosecution relied on 33 witnesses and voluminous documentary material. 13. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges. 14. The first hearing took place on 12 and 13 May 1994 when the Regional Court heard the four co-accused and several witnesses. Some of the witnesses did not appear. The prosecutor and the defence lawyers requested leave to submit further evidence. The court adjourned the hearing. On 16 May 1994 the court, sitting in private, appointed a graphology expert. 15. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion. 16. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused’s appeal against detention to be examined and was returned on 30 June 1994. 17. The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence. 18. The trial resumed on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared and in order to enable the accused persons to submit further evidence. Some of the witnesses who had not appeared were ordered to pay fines. 19. The next trial hearing took place on 29 and 30 November 1994. The financial expert appointed by the court stated that he had been denied access to certain documents and therefore had not finalised his report. The court ordered a bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned. 20. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention. 21. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. 22. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill. 23. On 12 July 1995 the court sitting in private ordered an expert report. 24. The hearing listed for 21 September 1995 was adjourned owing to the illness of the lawyer of one of the co-accused. The court also observed that several witnesses had not been summoned properly and that others, albeit summoned, had not appeared. 25. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention. 26. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill. 27. After learning that the lay judges were prevented by illness from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges. On that date the court appointed two additional experts. 28. The new chamber of the court held a hearing on 26 and 27 March 1996. It heard several witnesses and experts. The hearing was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996. 29. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained. 30. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention. 31. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend. 32. The hearing of 30 October 1996 was further adjourned, because the medical experts considered that one of the co-accused was not in a condition to participate in the hearing as he was on a hunger strike. 33. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date. 34. The hearing resumed on 19 December 1996. One witness and the experts were heard. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment. 35. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses. 36. The last hearing before the Plovdiv Regional Court took place on 28‑31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. 37. On 31 January 1997 the applicant was found guilty of having forged tax documents with a view to obtaining an unlawful gain for himself and others and of having suborned a witness. He was sentenced to twelve years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between ten and thirteen years. 38. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment. 39. On 11 February 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence. 40. The case was listed for a hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw. The examination of the case could not proceed and the hearing was adjourned. 41. The hearing was held on 23 January 1998. 42. By judgment of 16 March 1998 the court upheld the applicant’s conviction and sentence. 43. On an unspecified date the applicant submitted a petition for review (cassation). 44. On 10 June 1998 the Supreme Court of Cassation held a hearing in the review (cassation) proceedings. As one of the co-accused joined the proceedings at that moment, the court adjourned the hearing to enable him to make the necessary submissions, which he did on 22 June 1998. 45. The hearing resumed on 9 December 1998. 46. On 22 March 1999 the Supreme Court of Cassation dismissed the petitions for review of the applicant and the other accused persons. 47. At all stages of the proceedings the applicant was legally represented. 48. The applicant was arrested on 10 September 1993. 49. On 12 October 1993 he appealed to the Plovdiv Regional Court against the Public Prosecutor’s decision to detain him pending trial denying the charges and stating that he had no criminal record, and that he had a family and a permanent address. On 3 November 1993 the Regional Court granted bail and the applicant was released. 50. On 15 February 1994 the applicant was charged under Article 293 § 1 of the Penal Code with having suborned a witness and was detained on the same day in connection with the proceedings relating to the main offence and to the new charges. 51. In March 1994 five persons who had been heard as witnesses in the criminal proceedings against the applicant and his accomplices were charged with perjury. Separate proceedings were brought against them. 52. On 15 July 1994 the applicant submitted a request for release on bail. 53. On 19 September 1994 the applicant renewed his application for release on bail submitting a medical report according to which he was developing a kidney disease. 54. On 6 October 1994 the Regional Court dismissed the applications for release filed by all co-accused stating that the charges carried a penalty of ten or more years imprisonment and that there were “no grounds to consider it established that the defendants would not abscond or commit a crime”. The court further noted that the applicant’s pre-trial detention had also been based on the new charges against him, those concerning the alleged suborning of a witness. Finally, the family situation and health condition of the accused persons did not require their release. 55. On 30 November 1994 the Regional Court refused the applicant’s renewed application for release, stating that there were no new circumstances. It also noted that after his release on bail during the preliminary investigation “he had committed another offence”. 56. The applicant appealed to the Supreme Court. 57. On 4 December 1994 the Plovdiv Regional Court, before transmitting the appeal to the Supreme Court, sitting in private, examined the matter again and refused to reverse its decision of 30 November 1994. The court held, inter alia, that according to the domestic law and the Supreme Court’s practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious wilful offence. To substitute this judicial measure by a more lenient one would only be possible if there had been “not even a hypothetical danger that the accused might abscond or commit further offences”, in particular, “if he is ill or elderly”. 58. On 21 February 1995 the Supreme Court dismissed the appeal against the applicant’s detention. 59. The Supreme Court explained its practice in matters of pre-trial detention stating that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure remand in custody was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. 60. The Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with an appeal against remand in custody. Its only task was to examine whether the conditions for pre-trial detention under Article 152 of the Code of Criminal Procedure had been met. 61. Turning to the particular case of the applicant, which was different from that of the other co-accused, the Supreme Court took into account his behaviour, noting that he had been charged for having suborned a witness after his release on bail. That fact clearly demonstrated the danger of the applicant committing an offence if released. 62. On 12 June 1995 the applicant submitted an application for release to the Regional Court on the grounds that he had a permanent address and that there was no danger of his obstructing the course of justice. He further complained of the length of his pre-trial detention, resulting from the court’s bad organisation of work and undue delays in the scheduling of the hearings. 63. Between 30 August and 12 September 1995 the applicant underwent a treatment for his kidneys at the prison hospital. 64. At the hearing on 21 September 1995 the applicant renewed his application for release on bail. He stated that he had a family and a permanent address, that the charges of suborning a witness had not been proven and that since the financial expert had completed his report there was no danger of the applicant obstructing the course of justice. He further maintained that he needed a treatment in hospital and enclosed a medical certificate. 65. The prosecutor objected, stating, inter alia, that under the relevant law, and regard being had to the increase in the crime rate in the country, the court was not entitled to release the applicant or the other co-accused. 66. On 21 September 1995 the Regional Court dismissed the application for bail, holding that there were no new circumstances and that domestic law required pre-trial detention to be imposed in all cases when a person had been accused of having wilfully committed a serious offence. The court further considered that it was not proven that the detention facilities had been detrimental to the applicant’s health. 67. On appeal, the Regional Court’s refusal to release the applicant was upheld by the Supreme Court sitting in private on 6 November 1995, upon receipt of the prosecutor’s observations which had not been communicated to the applicant. The Supreme Court stated that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding, re-offending or obstructing the investigation. However, no such evidence was available in the applicant’s case. 68. On 12 January 1996 the applicant submitted an application for release on the ground that his detention had been excessively lengthy, that he had a permanent address, that he did not have a previous criminal record and that there was no danger of his obstructing the course of justice. On 19 February 1996 the Regional Court dismissed the application as there was no change in the relevant circumstances and on the ground that the applicant was charged with a serious wilful crime which automatically required the imposition of pre-trial detention in accordance with Article 152 § 1 of the Code of Criminal Procedure. 69. At the hearing on 27 March 1996 the applicant submitted a fresh application for release on the ground that all evidence had already been gathered, and that therefore there was no danger of his obstructing the course of justice. The Regional Court dismissed the application on the same day, holding that there were no new facts which required his release and that the length of pre-trial detention was not limited by statute. 70. The applicant appealed to the Supreme Court, which dismissed the appeal on 28 May 1996, sitting in private. 71. The Supreme Court reiterated its position that in view of the charges against the applicant pre-trial detention was mandatory save in exceptional circumstances where even a hypothetical danger of absconding, obstructing justice or committing an offence was objectively excluded. All other questions, such as those concerning the length of the proceedings and the soundness of the charges were irrelevant. 72. At the hearing of 29 and 30 October 1996, the applicant requested to be released on bail, referring to the alleged excessive length of his detention and the Regional Court’s failure to conduct the trial speedily. The application was dismissed on the same day on grounds similar to those previously stated. 73. On 7 November 1996 the applicant filed an appeal to the Supreme Court against the decision of 29 or 30 October 1996 claiming that there was no danger of his obstructing the course of justice since all the evidence had been gathered, and that the criminal proceedings were excessively lengthy owing to bad organisation of the trial. 74. On 11 November 1996, the Regional Court, sitting in camera, re-examined the matter ex officio and refused to reconsider its decision. On 19 November 1996 the appeal was transmitted to the Supreme Court. 75. On 25 November 1996 a prosecutor of the Chief Public Prosecutor’s Office submitted written observations to the Supreme Court, inviting it to dismiss the appeals of Mr Ilijkov, Mr Hristov and Mr Mihov, which were being examined simultaneously. The comments were not communicated to the applicant. 76. On 4 December 1996 the Supreme Court sitting in private dismissed the appeals. It stated that the danger of absconding, re-offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged. 77. On 31 January 1997, the applicant was found guilty on the forgery charges and on the charge of suborning a witness. He was sentenced to twelve years’ imprisonment. | [
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10. The first applicant is a private company incorporated under Cypriot law and registered in Nicosia on 3 July 1986. It has one director and two shareholders. The second applicant is a Cypriot national of Greek-Cypriot origin, born in 1948 and living in Nicosia. He is the director of the first applicant and also its principal shareholder. The second shareholder of the company is the second applicant's wife. From the date of the incorporation of the first applicant until 28 November 1986, the second applicant owned 1,960 shares and his wife 40 shares. However, since 29 November 1986 the applicant has been the owner of 1,999 shares and his wife the owner of one share. 11. In April 1988 the first applicant became the co-owner of a substantial amount of property by way of gift. The property is situated in the village of Tymvou, in the northern district of Nicosia, located in the “Turkish Republic of Northern Cyprus” (“TRNC”). It consists of 51 plots of land with registration numbers A174, A194, A195, B245, B121, B238, B321, E262, E266, E268, E279, E291, E292, F221, F222, F301, F308, F314, F318, G102, G162, G193, G246, G288, G298, G299, G407, G411, G414, G415, G418, H17, H18, H26, H76, H87, H90, H98, H109, H112, H117, H130, H136, H144, H179, J12, J13, J32, J38, J46 and J55. 12. The first applicant owned the property in equal shares with another company also registered in Nicosia. However, on 3 April 1996 the first applicant and the other co-owner transferred their shares in the above property by way of gift to the second applicant. As from 3 April 1996 the second applicant became the exclusive owner of that property. 13. The applicants state that they are prevented by the Turkish armed forces from having access to their property and using and enjoying possession of it. 14. On 30 June 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”, which entered into force on the same day. | [
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9. The applicant, Mr Mohamed Nuri Al Akidi, was born in 1961. 10. The applicant was arrested on 10 September 1993 on charges that he had used forged documents in order to obtain unlawfully an excise tax refund. The amount at stake, in respect of which the applicant was eventually convicted, was 15,294,000 Bulgarian levs (the equivalent of 558,236 US dollars at the relevant time). The applicant had acted in concert with three other persons all of whom later submitted applications under Articles 5 and 6 of the Convention (see Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, and the cases of Hristov v. Bulgaria, no. 35346/97, and Mihov v. Bulgaria, no. 35519/97). 11. The charges preferred against the applicant were based on Article 212 § 4 of the Penal Code, which provided for a sentence of ten to twenty years' imprisonment. The accusations concerned alleged false certification of fictitious exports of consignments of cigarettes which in reality had been sold in the country. 12. On 5 April 1994 the preliminary investigation was completed and an indictment was submitted to the Plovdiv Regional Court. The prosecution relied on 33 witnesses and voluminous documentary material. 13. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges. 14. The first hearing took place on 12 and 13 May 1994 when the Regional Court heard the four co-accused and several witnesses. Some of the witnesses did not appear. The prosecutor and the defence lawyers requested leave to submit further evidence. The court adjourned the hearing. On 16 May 1994 the court, sitting in private, appointed a graphology expert. 15. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court's refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor's opinion. 16. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused's appeal against detention to be examined and was returned on 30 June 1994. 17. The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence. 18. The trial resumed on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared and in order to enable the accused persons to submit further evidence. Some of the witnesses who had not appeared were ordered to pay fines. 19. The next trial hearing took place on 29 and 30 November 1994. The financial expert appointed by the court stated that he had been denied access to certain documents and therefore had not finalised his report. The court ordered a bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned. 20. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention. 21. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. 22. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill. 23. On 12 July 1995 the court sitting in private ordered an expert report. 24. The hearing listed for 21 September 1995 was adjourned owing to the illness of the applicant's lawyer. The court also observed that several witnesses had not been summoned properly and that others, albeit summoned, had not appeared. 25. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention. 26. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill. 27. After learning that the lay judges were prevented by illness from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges. On that date the court appointed two additional experts. 28. The new chamber of the court held a hearing on 26 and 27 March 1996. It heard several witnesses and experts. The hearing was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court's clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996. 29. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained. 30. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention. 31. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend. 32. The hearing of 30 October 1996 was further adjourned, because the medical experts considered that one of the co-accused was not in a condition to participate in the hearing as he was on a hunger strike. 33. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date. 34. The hearing resumed on 19 December 1996. One witness and the experts were heard. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment. 35. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses. 36. The last hearing before the Plovdiv Regional Court took place on 28‑31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. 37. On 31 January 1997 the applicant was found guilty of having forged tax documents with a view to obtaining an unlawful gain. He was sentenced to eleven years' imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between ten and thirteen years. 38. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment. 39. On 7 February 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence. 40. The case was listed for a hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw. The examination of the case could not proceed and the hearing was adjourned. 41. The hearing was held on 23 January 1998. 42. By judgment of 16 March 1998 the court upheld the applicant's conviction and sentence. 43. On 27 March 1998 date the applicant submitted a petition for review (cassation). 44. On 10 June 1998 the Supreme Court of Cassation held a hearing in the review (cassation) proceedings. As one of the co-accused joined the proceedings at that moment, the court adjourned the hearing to enable him to make the necessary submissions, which he did on 22 June 1998. 45. The hearing resumed on 9 December 1998. 46. On 22 March 1999 the Supreme Court of Cassation dismissed the petitions for review of the applicant and the other accused persons. 47. At all stages of the proceedings the applicant was legally represented. 48. On 10 September 1993 the applicant was arrested and detained pending trial. 49. On 22 September 1993 the applicant's lawyer filed an application for his client's release with the Regional Public Prosecutor. The application was dismissed on 1 October 1993 on the grounds that the charges concerned a crime punishable by more than ten years imprisonment and that there were no circumstances excluding the necessity of the detention. In particular, the applicant was a foreign citizen and, therefore, there was a danger of his absconding. 50. On 26 October 1993 the applicant appealed to the Regional Court stating that he was a political emigrant and could not return to Iraq and that his passport had been confiscated by the Bulgarian authorities. Furthermore, he had been living in Bulgaria for more than 12 years and his Bulgarian wife was expecting a child. 51. On 3 November 1993 the Regional Court sitting in private dismissed the appeal holding that the applicant had been charged with a serious wilful offence and that there was a danger of his absconding, committing further offences or obstructing the course of justice. 52. In March 1994 five persons who had been heard as witnesses in the criminal proceedings against the applicant and his accomplices were charged with perjury. Separate proceedings were brought against them. 53. At the hearing on 6 October 1994 the applicant requested his release on bail stating that he had been detained for more than one year and that he had a family and a permanent address. On the same day the Regional Court dismissed the applications for release filed by all co-accused stating that the charges carried a penalty of ten or more years imprisonment and that there were “no grounds to consider it established that the defendants would not abscond or commit a crime”. The family situation and health condition of the accused persons did not require their release. 54. On 30 November 1994 the Regional Court refused the applicant's renewed application for release, stating that there were no new circumstances. 55. The applicant appealed to the Supreme Court. He stated that the authorities had not provided any evidence as to the existence of a danger of his absconding, re-offending or obstructing the course of justice and that the charges against him had been weak. He also submitted that all relevant evidence had already been collected. 56. On 4 December 1994 the Plovdiv Regional Court, before transmitting the appeal to the Supreme Court, sitting in private, examined the matter again and refused to reverse its decision of 30 November 1994. The court held, inter alia, that according to the domestic law and the Supreme Court's practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious wilful offence. To substitute this judicial measure by a more lenient one would only be possible if there had been “not even a hypothetical danger that the accused might abscond or commit further offences”, in particular, “if he is ill or elderly”. 57. On 21 February 1995 the Supreme Court dismissed the appeal against the applicant's detention. 58. The Supreme Court explained its practice in matters of pre-trial detention stating that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure remand in custody was mandatory for everyone accused of a crime punishable by ten or more years' imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court's view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years' imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter. 59. The Supreme Court further refused to consider the applicant's contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for pre-trial detention under Article 152 of the Code of Criminal Procedure had been met. 60. At the hearing on 21 September 1995 before the Plovdiv Regional Court the applicant again appealed against his detention on the grounds that he had not committed an offence, that he had a permanent address and had been fully co-operating with the authorities during the preliminary investigation. 61. The prosecutor objected, stating, inter alia, that under the relevant law, and regard being had to the increase in the crime rate in the country, the court was not entitled to release the applicant or the other co-accused. 62. On 21 September 1995 the Regional Court dismissed the application for bail, holding that there were no new circumstances and that the domestic law required pre-trial detention to be imposed in all cases when a person had been accused of having wilfully committed a serious offence. 63. Another application for release was dismissed on 19 February 1996 at the trial hearing before the Plovdiv Regional Court on the ground that the applicant was charged with a serious wilful crime which automatically required the imposition of pre-trial detention in accordance with Article 152 § 1 of the Code of Criminal Procedure. 64. At the hearing on 27 March 1996 the applicant renewed his application for release on bail arguing, inter alia, that since all evidence in his case had already been gathered, there was no danger of his absconding or obstructing the course of justice. He also invoked the Convention. The Regional Court dismissed the application on the same day, holding that there were no new facts which required his release and that the length of pre-trial detention was not limited by statute 65. On 28 January 1997, at the trial hearing, the applicant applied for release on bail. 66. On 31 January 1997 the applicant was found guilty and was sentenced to eleven years' imprisonment. | [
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4. The applicants were both born in 1940 and live in Florence. 5. They are the owners of a flat in Florence, which they had let to A.Q. 6. In a writ served on the tenant on 14 September 1984, the applicants informed him of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Florence Magistrate. 7. By a decision of 14 November 1984, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 8. In the meanwhile the tenant died and his wife refused to leave the premises. 9. On 25 September 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for their son. 10. On 16 November 1989, the applicants served notice on the tenant requiring her to vacate the premises. 11. On 6 December 1989, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 January 1990. 12. Between 31 January 1990 and 8 February 2001, the bailiff made twenty-one attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 13. In the meanwhile, on 1 December 1998, the applicants made a second statutory declaration that they urgently required the premises as accommodation for their son. 14. Pursuant to section 6 of Law no. 431/98, on 9 July 1999, the tenant asked for a suspension of the enforcement proceedings. The Florence Magistrate suspended the proceedings until 8 February 2001. 15. On 9 March 2001, the applicants recovered possession of the flat. | [
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6. The applicants were born in 1908, 1929 and 1935 and live respectively one in Turin and the others in Tronzano Vercellese. 7. They are the owners of a flat in Turin, which they had let to M.M. 8. In a writ served on the tenant on 8 January 1992, the applicants informed the tenant of their intention to terminate the lease and summoned him to appear before the Turin Magistrate. 9. By a decision of 19 February 1992, which was made enforceable on the same day, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 19 February 1993. 10. On 22 February 1993, the applicants served notice on the tenant requiring him to vacate the premises. 11. On 18 March 1993 they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 2 April 1993. 12. Between 2 April 1993 and 13 January 1999, the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 13. Pursuant to article no. 6 of Law no. 431/98, the evictions proceedings were suspended until 20 January 2000. 14. On 27 January 2000, the applicants recovered possession of the flat. | [
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4. The applicant was born in 1943 and lives in Prato. 5. The applicant is the owner of a flat in Ercolano, which she had let to P.D.R. 6. In a registered letter of 9 April 1992, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 January 1993 and asked him to vacate the premises by that date. 7. In a writ served on the tenant on 15 May 1992, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Portici Magistrate (Naples). 8. By a decision of 15 June 1992, which was made enforceable on 22 June 1992, the Portici Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 January 1994. 9. On 11 February 1994, the applicant served notice on the tenant requiring him to vacate the premises. 10. On 26 February 1994, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 14 April 1994. 11. Between 14 April 1994 and 19 July 2000, the bailiff made ten attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 12. On 22 July 1999, pursuant to section 6 of law no. 431/98, the enforcement proceedings were suspended until 4 April 2000. 13. On 6 October 2000, the tenant spontaneously vacated the premises and the applicant recovered possession of the flat. | [
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4. The applicant was born in 1946 and lives in Rome. 5. She is the owner of a flat in Rome, which she had let to M.T.O.T. 6. In a writ served on the tenant on 28 January 1991, the applicant informed her that she intended to terminate the lease on expiry of the term on 31 December 1991 and summoned her to appear before the Rome Magistrate. 7. By a decision of 21 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 8. On 1 February 1993, the applicant served notice on the tenant requiring her to vacate the premises. 9. On 17 March 1993, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 7 April 1993. 10. Between 7 April 1993 and 17 December 1999, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful as the applicant was not entitled to police assistance in enforcing the order for possession. 11. On 25 January 2000, the applicant recovered possession of the flat. | [
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4. The applicant was born in 1955 and lives in Pino Torinese (Turin). 5. The applicant is the owner of a flat in Turin, which he had let to V.D.F. 6. In a registered letter of 10 February 1992, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 August 1992 and asked him to vacate the premises by that date. 7. In a writ served on the tenant on 27 May 1992, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Turin Magistrate. 8. By a decision of 26 June 1992, which was made enforceable on the same day, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 August 1993. 9. On 29 September 1993, the applicant served notice on the tenant requiring him to vacate the premises. 10. On 26 October 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 December 1993. 11. Between 7 December 1993 and 7 October 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 12. Pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 14 June 2000. 13. On 14 June 2000, the applicant recovered possession of the flat. | [
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4. The applicant was born in 1949 and live in Rome. 5. He is the owner of a flat in Rome, which he had let to L.E. 6. In a registered letter of 23 June 1983, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date. 7. The tenant told the applicant that she would not leave the premises. 8. In a writ served on the tenant on 5 February 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 9. By a decision of 4 April 1986, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 August 1986. 10. On 21 July 1986, invoking articles 10 and 11 of Law No. 84/82, the tenant asked for a postponement of the eviction proceedings and then the Rome Magistrate ordered that the premises be vacated by 15 May 1987. 11. On 3 July 1987, the applicant served notice on the tenant requiring her to vacate the premises. 12. On 22 July 1987, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 18 September 1987. 13. Between 18 September 1987 and 9 March 2000, the bailiff made fifty-five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 14. In the meanwhile, on 27 February 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 15. On 9 July 1999, pursuant to article 6 of Law No. 431/98, the tenant asked the Rome Magistrate to suspend the eviction proceedings. Consequently, the Rome Magistrate suspended the proceedings until 15 January 2000. 16. On 22 March 2000, the applicant sold the flat to the tenant. | [
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8. The applicant, Mr Mihail Simeonov Mihov, is a Bulgarian national who was born in 1966. 9. On 11 September 1993, the applicant, who worked as a custom officer, was questioned in relation to a preliminary investigation opened on 10 September 1993 by the Plovdiv Regional Public Prosecutor against persons suspected of having obtained unlawfully excise tax refunds through forged documents. 10. On 19 November 1993 the applicant was arrested and remanded in custody on suspicion of having aided and abetted those persons and having forged documents in contravention of Article 212 §§ 2 and 4 of the Criminal Code, which provided for a sentence of ten to twenty years’ imprisonment. 11. Four persons, including the applicant, were eventually prosecuted and convicted in one trial. All of them later submitted applications raising complaints under Articles 5 and 6 of the Convention (see, Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, and the cases of Hristov v. Bulgaria, no. 35436/97 and Al Akidi v. Bulgaria, no. 35825/97). 12. The accusations against the applicant concerned the alleged false certification, made by him on 9 May 1993, of a fictitious export of consignments of cigarettes which in reality had never left the country. That false certification had enabled Mr Ilijkov to obtain unlawfully 6,249,600 Bulgarian levs (the equivalent of 200,417 US dollars at the relevant time). 13. The applicant’s defence was apparently based on his assertion that on the relevant day he had been working in his office on the basis of documents only and that his colleagues had been checking the actual traffic of lorries. 14. On 5 April 1994, having completed the preliminary investigation, the prosecution authorities submitted an indictment to the Plovdiv Regional Court. The indictment relied on 33 witnesses and voluminous documentary material. 15. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges. 16. The first hearing took place on 12 and 13 May 1994 when the Regional Court heard the four co-accused and several witnesses. Some of the witnesses did not appear. The prosecutor and the defence lawyers requested leave to submit further evidence. The court adjourned the hearing. On 16 May 1994 the court, sitting in private, appointed a graphology expert. 17. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion. 18. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused’s appeal against detention to be examined and was returned on 30 June 1994. 19. The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence. 20. The trial resumed on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared and in order to enable the accused persons to submit further evidence. Some of the witnesses who had not appeared were ordered to pay fines. 21. The next trial hearing took place on 29 and 30 November 1994. The financial expert appointed by the court stated that he had been denied access to certain documents and therefore had not finalised his report. The court ordered a bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned. 22. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention. 23. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. 24. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill. 25. On 12 July 1995 the court sitting in private ordered an expert report. 26. The hearing listed for 21 September 1995 was adjourned owing to the illness of the lawyer of one of the co-accused. The court also observed that several witnesses had not been summoned properly and that others, albeit summoned, had not appeared. 27. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention. 28. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill. 29. After learning that the lay judges were prevented by illness from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges. On that date the court appointed two additional experts. 30. The new chamber of the court held a hearing on 26 and 27 March 1996. It heard several witnesses and experts. The hearing was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996. 31. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained. 32. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention. 33. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend. 34. The hearing of 30 October 1996 was further adjourned, because the medical experts considered that one of the co-accused was not in a condition to participate in the hearing as he was on a hunger strike. 35. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date. 36. The hearing resumed on 19 December 1996. One witness and the experts were heard. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment. 37. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses. 38. The last hearing before the Plovdiv Regional Court took place on 28‑31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. 39. On 31 January 1997 the applicant was found guilty of having made a false certification on 9 May 1993 thus enabling Mr Ilijkov to obtain unlawfully excise tax refund. He was sentenced to ten years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between eleven and thirteen years. 40. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment. 41. On 10 February 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence. 42. The case was listed for a hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw. The examination of the case could not proceed and the hearing was adjourned. 43. The hearing was held on 23 January 1998. 44. By judgment of 16 March 1998 the court upheld the applicant’s conviction and sentence. 45. On an unspecified date the applicant submitted a petition for review (cassation). 46. On 10 June 1998 the Supreme Court of Cassation held a hearing in the review (cassation) proceedings. As one of the co-accused joined the proceedings at that moment, the court adjourned the hearing to enable him to make the necessary submissions, which he did on 22 June 1998. 47. The hearing resumed on 9 December 1998. 48. On 22 March 1999 the Supreme Court of Cassation dismissed the petitions for review of the applicant and the other accused persons. 49. At all stages of the proceedings the applicant was legally represented. 50. On 19 November 1993 the applicant was arrested and remanded in custody. 51. On 1 March 1994 the applicant’s application for release was dismissed by the Plovdiv Regional Court, sitting in private, on the grounds that he was charged with a serious offence committed with intent and that there was a prima facie danger of his absconding, committing further offences or obstructing the course of justice. The court held that the state of health of the applicant’s wife and child was not a ground for ordering his release under the relevant law. 52. On 14 March 1994 the applicant complained of his detention to the Chief Public Prosecutor on the ground that he had not committed the offence in question. He did not receive an answer. 53. In March 1994 five persons who had been heard as witnesses in the criminal proceedings against the applicant and his accomplices were charged with perjury. Separate proceedings were brought against them. 54. At the hearing on 13 May 1994 the Regional Court dismissed the applicant’s application for release made on the same day. On 18 May 1994 the applicant appealed to the Supreme Court. On 30 June 1994 the appeal was dismissed at a sitting in private in the presence of the prosecutor. The Supreme Court held that the applicant’s detention was imperative as he had been charged with a serious offence with intent. 55. On 6 October 1994 the Regional Court dismissed the applications for release filed by all co-accused stating that the charges carried a penalty of ten or more years imprisonment and that there were “no grounds to consider it established that the defendants would not abscond or commit a crime”. The family situation and health condition of the accused persons did not require their release. 56. At the trial hearing of 29 and 30 November 1994, the applicant applied for release on bail on the grounds that there was no danger that he would abscond and that he had a permanent address. The court dismissed the application holding that there were no new facts to justify his being released. 57. The applicant appealed to the Supreme Court. He stated that he had been detained for more than one year, that most evidence had been collected, that he had a family and two small children one of whom was seriously ill and that therefore there was no danger of absconding or committing an offence. 58. On 4 December 1994, the Regional Court, before transmitting the appeal to the Supreme Court, sitting in private, examined the matter again and refused to reverse its decision of 30 November 1994. The court held, inter alia, that according to the domestic law and the Supreme Court’s practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious wilful offence. To substitute this judicial measure by a more lenient one would only be possible if there had been “not even a hypothetical danger that the accused might abscond or commit further offences”, in particular, “if he is ill or elderly”. 59. On 21 February 1995 the Supreme Court dismissed the appeal against the applicant’s detention. 60. The Supreme Court explained its practice in matters of pre-trial detention stating that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure remand in custody was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. 61. The Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with an appeal against pre-trial detention. Its only task was to examine whether the conditions for detention under Article 152 of the Code of Criminal Procedure had been met. 62. At the hearing on 21 September 1995 the applicant again appealed against his detention on the ground that there was no danger of his absconding. In particular, he pointed out that he had continued to work at the customs office although he had been aware of the preliminary investigation. Furthermore, no steps had been taken by the authorities for almost a whole year. 63. The prosecutor objected, stating, inter alia, that under the relevant law, and regard being had to the increase in the crime rate in the country, the court was not entitled to release the applicant or the other co-accused. 64. On 21 September 1995 the Regional Court dismissed the application for bail, holding that there were no new circumstances and that pre-trial detention was required as a matter of law in all cases where the charges concerned a serious offence with intent. 65. On 28 September 1995 the applicant appealed to the Supreme Court. 66. On 6 November 1995 the Supreme Court sitting in private, upon receipt of the prosecutor’s observations which had not been communicated to the applicant, dismissed the appeal stating that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding, re-offending or obstructing the investigation. However, no such evidence was available in the applicant’s case. 67. On 19 February 1996 the applicant again submitted an application for release to the Plovdiv Regional Court. It was dismissed on the same day as there had been no new facts and on the ground that the applicant was charged with a serious wilful crime which automatically required the imposition of pre-trial detention in accordance with Article 152 § 1 of the Code of Criminal Procedure. 68. At the hearing of 27 March 1996 the applicant renewed his application for release on bail which was refused on the same day by the Regional Court as there had been no new circumstances. 69. On 24 September 1996 the applicant submitted a request for release. The Regional Court dealt with the appeals of the applicant and two of the other co-accused persons at the hearing on 29 and 30 October 1996 and dismissed them on grounds similar to those previously stated. On 1 November 1996 the applicant appealed against that decision to the Supreme Court. He stated, inter alia, that his detention had been continuing for three years only because the Regional Court had failed to conduct the trial promptly. In particular, it had not replaced the lay judge who had been ill. 70. On 11 November 1996, the Regional Court, sitting in camera, re‑examined the matter ex officio and refused to reconsider its decision. On 19 November 1996 the appeal was transmitted to the Supreme Court. 71. On 25 November 1996 a prosecutor of the Chief Public Prosecutor’s Office submitted written observations to the Supreme Court, inviting it to dismiss the appeals of Mr Ilijkov, Mr Hristov and Mr Mihov, which were being examined simultaneously. The comments were not communicated to the applicant. 72. On 4 December 1996 the Supreme Court sitting in private dismissed the appeals. It stated that the danger of absconding, re-offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged. 73. On 31 January 1997 the applicant was found guilty and sentenced to ten years’ imprisonment. | [
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4. The applicants live in Rome. 5. They are the owners of a flat in Rome, which they had let to G.B. and R.B.F. 6. In a writ served on the tenants on 23 July 1992, the applicants informed the tenant of their intention to terminate the lease and summoned them to appear before the Rome Magistrate. 7. By a decision of 17 December 1992, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 August 1993. 8. On 8 October 1993, the applicants served notice on the tenants requiring them to vacate the premises. 9. On 29 October 1993, they served notice on the tenants informing them that the order for possession would be enforced by a bailiff on 16 December 1993. 10. Between 16 December 1993 and 25 January 2000, the bailiff made thirty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 11. On 27 March 2000, the applicants recovered possession of the flat. | [
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