Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1947 and lives in Ljubljana.

On 6 January 1992 the applicant and her then husband F.B., who had decided to get divorced, entered into an agreement on the partition of their joint property. The agreement stipulated, inter alia, that F.B. would transfer to her, within one year, the ownership of premises on Zaloška Street, unless they agreed on a different location. The agreement further stipulated that if the stated obligations were not fulfilled, the applicant could terminate the agreement and claim a share of the joint property in accordance with the relevant domestic law. On 24 April 1992 the applicant and F.B. divorced.

Subsequently, F.B. did not transfer the ownership of premises on Zaloška Street to the applicant. However, on 24 September 1992 the applicant accepted the keys of certain premises on Trubarjeva Street. After F.B. had bought the latter premises, on 6 November 1992, he offered the applicant the possibility of signing a supplement to the agreement. According to the supplement, the applicant would receive forty per cent of the premises on Trubarjeva Street as a form of alternative performance of the relevant part of the agreement. The applicant refused to sign the supplement to the agreement.

On 3 May 1993 she instituted proceedings in the Ljubljana Basic Court (Temeljno sodišče v Ljublani) seeking termination of the agreement and partition of the joint property.

On 16 November 1993 F.B. died and his heirs, J.B.J, B.E.B. and M.B., took over his capacity in the proceedings.

On 9 November 1995 the court issued a partial judgment terminating the relevant agreement and rejecting the counter-claim lodged by J.B.J, B.E.B. and M.B (“the heirs”).

On 11 April 1996 the Ljubljana Higher Court (Višje sodišče v Ljubljani) quashed the first-instance court’s judgment and remitted the case for re-examination. The applicant then challenged that decision in an appeal on points of law, but that was rejected by the Supreme Court on 22 May 1997.

In the re-examination proceedings, on 14 September 1998, the (renamed) Ljubljana District Court (Okrožno sodišče v Ljubljani) issued a new judgment rejecting the applicant’s claim. The court considered that the relevant agreement was not a “fixed contract” (fiksna pogodba) which could be terminated without allowing additional time for its performance. Moreover, from F.B.’s conduct it had not been apparent that he was not going to honour his obligation. The applicant should therefore have offered an additional time-limit to F.B. In addition, the court found that F.B. had in large part fulfilled his obligations and that the applicant, by accepting the keys to the premises on Trubarjeva Street, had agreed to an alternative performance of the agreement.

On 31 March 1999 the Ljubljana Higher Court upheld the first-instance court’s judgment. It, however, amended certain parts concerning the payment of costs and expenses.

On 13 May 1999 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). She supplemented the appeal on 25 May 1999.

On 19 April 2000 the Supreme Court upheld the applicant’s appeal to the extent that it concerned the application of law by the lower courts, but dismissed the remainder. The Supreme Court considered that the interpretation of the relevant agreement concerned the application of the law. It then concluded that F.B. had not fulfilled his obligations by offering the applicant only a share of the premises on Trubarjeva Street. In addition, the applicant had not consented to the alternative performance nor had F.B. showed an intention to fulfil his obligations. The Supreme Court consequently varied the lower courts’ judgments and terminated the relevant agreement. As far as the partition of the joint property was concerned, the Supreme Court remitted the case to the first-instance court.

Two of the heirs (J.B.J. and B.E.B.) lodged a constitutional appeal complaining, inter alia, of the arbitrariness of the Supreme Court’s judgment and of a breach of the provision guaranteeing equal protection of rights (Article 22 of the Constitution). On 30 January 2001 the Constitutional Court (Ustavno sodišče) accepted the appeal for consideration, which is equivalent to declaring it admissible. On 10 May 2001 it upheld the appeal by five votes to three, quashed the Supreme Court’s judgment and remitted the case to the Supreme Court for re-examination (decision no. Up-232/00). It would appear that the applicant was informed of that decision (see paragraph 22 below), but there is no document in the case file certifying as to when.

The Constitutional Court found that the Supreme Court’s decision was based on the interpretation of the parties’ motivation and of the content of the agreement. In its view, such interpretation constituted an interference with the facts established by the lower courts. However, according to the domestic legislation, the Supreme Court, when deciding on an appeal on points of law, had jurisdiction only for the determination of legal issues. The Constitutional Court found that the Supreme Court’s decision was obviously erroneous and therefore arbitrary. This, and the fact that the Supreme Court had exceeded its jurisdiction, represented an interference with the appellants’ right to equal protection of rights.

In the re-examination proceedings, the Supreme Court, on 17 December 2001, again varied the lower courts’ judgments by terminating the relevant agreement and remitting the case to the first-instance court to determine the partition of the joint property.

After accepting for consideration the relevant part of the heirs’ further constitutional appeal on 17 June 2002, the Constitutional Court, on 12 December 2002, quashed the Supreme Court’s judgment, dismissed the applicant’s appeal on points of law and upheld the Ljubljana Higher Court’s judgment of 31 March 1999. The decision was adopted by six votes to two (decision no. Up-140/02).

The Constitutional Court found that the Supreme Court had again dealt with questions of fact – a matter over which it had no jurisdiction; that it had failed to provide reasons for its decision, which was different from previous decisions adopted in other cases concerning the same issue; and that it had disregarded the instructions given by the Constitutional Court. The latter therefore again found a violation of the right to equal protection of rights. Using the special power afforded in section 60 of the Constitutional Court Act and because of the already lengthy duration of the proceedings, the Constitutional Court, in order to secure effective judicial protection, decided on the merits of the case itself and upheld the Higher Court’s judgment of 31 March 1999.

The Constitutional Court’s decisions of 10 May 2001 and 12 December 2002 noted, under paragraph 3, as follows:

“in accordance with the provisions of sections 6 and 56 of the Constitutional Court Act, the Constitutional Court served the constitutional appeal on the Supreme Court, on the opposite party (plaintiff) to the proceedings [the applicant] and on the third defendant in the proceedings. None of them replied to the constitutional appeal.”

According to the applicant, she had not received a copy of the first constitutional appeal. On 4 July 2001, a note was prepared by an official in this connection on the Constitutional Court’s premises. The note, which appeared to be part of the file no. Up 232/00, mentioned that the constitutional appeal and admissibility decision of 30 January 2001 had been handed over to the applicant.

In addition, the applicant submitted to the Court copies of receipts relating to the attempt to serve the process by the Constitutional Court, concerning the file no. Up 140/02. It would appear that this process included a copy of the second constitutional appeal, the admissibility decision and a letter informing the applicant that the constitutional appeal had been accepted for consideration and that that the applicant should submit her comments within eight days. It transpires from the receipts that the process was sent by the Constitutional Court on 21 June 2002 but had not been served on the applicant. The address referred to in the receipts and the letter is different from the applicant’s address as mentioned in her claim and in the decisions issued in the domestic proceedings, including in the last Supreme Court judgment. According to the applicant, the address used to serve the process was actually the address of one of the other parties to the proceedings.

The Constitutional Court Act (Zakon o Ustavnem sodišču, Official Gazette no. 15/94) provides, in so far as relevant, as follows:

“For procedural questions which are not governed by this Act, the Constitutional Court shall apply the relevant provisions of legislation concerning [ordinary] court proceedings, taking into consideration the nature of the matter.”

“After being accepted, a constitutional appeal shall be referred to the body which issued the decision against which the constitutional appeal is lodged, in order for that body to reply to the constitutional appeal within a given time-limit.”

“1. If the Constitutional Court quashes a decision, it may also decide on a relevant right or freedom if such procedure is necessary in order to bring to an end consequences that have already occurred on the basis of the quashed decision, or if so required by the nature of the constitutional right or freedom, and provided that a decision can be given on the basis of information in the file.

On 30 May 2007 the Slovenian Parliament adopted amendments to the Constitutional Court Act (Official Gazette no. 51/2007). Section 56 was amended to read:

“1. If the Constitutional Court accepts a constitutional appeal for consideration, it shall inform the body which issued the decision against which the constitutional appeal is lodged accordingly. A Constitutional Court judge .... can request the body ... to submit information or an explanation necessary for the decision on the constitutional appeal.

In the above circumstances, the constitutional appeal should be sent to the persons who participated in the proceedings leading to the decision challenged in the appeal if that decision concerned one of their rights, obligations or legal interests, so that they can reply to it within a certain time-limit.”

Paragraph 3 of section 370 of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that an appeal on points of law is not allowed in respect of an alleged erroneous or insufficient establishment of the facts.

Under section 394 of the Civil Procedure Act, proceedings which have been finally concluded by a court decision (pravnomočno končan) can be reopened at the request of a party to the proceedings, if, inter alia, that party did not have an opportunity to give testimony in court, due to some illegality, in particular lack of service. The final conclusion of the proceedings in principle refers to the final decision against which no ordinary appeal lies; that would normally be a decision of a first-instance court, or if an appeal has been lodged, that of a second-instance court.

Section 142 of the same act provides that certain documents (such as statements of claim, notices of extraordinary remedies or judgments which can be appealed against) should be served on parties in person. If the party is not found at his or her address, the server should leave a note informing him or her of a new date on which he or she is to be served with the process. If the party is not found at his or her address on that date, the server will serve the process on, inter alia, an adult family member, who will be required to accept the process. If that is not possible, the server will return the process to the court or leave it at a local post office. The server will leave a note at the party’s address informing him or her of the process and the fifteen-day deadline for its collection. The note shall also state the reasons why the process was left at the post office or the court and the date of that event. Under the above conditions and, as the case may be, after the expiry of the deadline, the process will be considered to have been effectively served on the addressee (sections 140-142).

The Government submitted six decisions by which the Constitutional Court had decided on requests for reopening of the proceedings before it. Two of them (decision no. U-I-18/99 of 4 October 2001 and decision no. U-I-217/02 of 17 March 2005) concern proceedings by which the constitutionality and legality of a statutory act were being challenged (postopek za oceno ustavnosti in zakonitosti). In both of them, the Constitutional Court found that neither the Constitutional Court Act nor any other legislation provided for the possibility of reopening such proceedings.

In the oldest of the remaining four decisions concerning proceedings in which a constitutional appeal had been dismissed (decision no. Up-95/95 of 26 February 1998), the panel of three members of the Constitutional Court (that is a formation in which a decision on admissibility is normally taken) dismissed the request for reopening. It explained that the appellant had not invoked any of the grounds which would justify reopening under the relevant provision of the Civil Procedure Act and section 6 of the Constitutional Court Act. Likewise, in all the remaining decisions (decision no. Up-189/01 of 21 November 2001, decision no. Up-524/01 of 13 January 2003 and decision no. Up-550/02 of 7 March 2006) the Constitutional Court found that the appellants had not demonstrated any grounds which could justify reopening under section 6 of the Constitutional Court Act and the relevant provisions of the legislation concerning court proceedings. It therefore rejected the requests, but added that this decision was taken “without considering the issue whether the reopening of the proceedings before the Constitutional Court was actually possible”.


No violation of Art. 6-1;No violation of Art. 6-2

Mr Amosi Salabiaku, a Zaïrese national born in 1951, resides in Paris with his family.

On 28 July 1979, Mr Salabiaku went to Roissy Airport to collect a parcel which he had been informed by telex message was to arrive on board an Air Zaïre flight. According to the applicant, he expected the parcel to contain samples of African food sent to him through the intermediary of one of his relatives who was an Air Zaïre employee. As he was unable to find it, he approached an airline official who directed him to a padlocked trunk which had remained uncollected and bore an Air Zaïre luggage ticket but no name. The official, acting on the advice of police officers watching the trunk, suggested that he left it where it was, intimating to him that it might contain prohibited goods.

The applicant took possession of it nevertheless, and passed through customs without difficulty. He had chosen to go through the "green channel" for passengers having nothing to declare. He was accompanied by three other Zaïrese nationals whom he had met there for the first time. Immediately afterwards he telephoned to his brother Lupia to come and meet him at a terminal near their home in order to help him since the package had proved heavier than expected.

Customs officials then detained Mr Amosi Salabiaku and his three companions as they were about to board the Air France terminal coach. Mr Salabiaku identified himself as the person for whom the trunk had been intended and denied that it was anything to do with his three compatriots who were immediately released.

Customs officials forced the lock of the trunk and found, lying underneath victuals, a welded false bottom which concealed 10 kg of herbal and seed cannabis. The applicant asserted that he was unaware of the presence of the cannabis and that he had mistaken the trunk for the parcel of whose arrival he had been advised. His brother was also arrested at the Porte Maillot (Paris).

On 30 July 1979, Air Zaïre telephoned to Mr Amosi and Mr Lupia Salabiaku’s landlord, informing him that a parcel bearing the applicant’s name and his address in Paris had arrived by mistake in Brussels. It was opened by an investigating judge but was found to contain only manioc flour, palm oil, pimento and peanut butter.

Mr Amosi and Mr Lupia Salabiaku were released on 2 August 1979 and, together with a certain K., also a Zaïrese national, were charged with both the criminal offence of illegally importing narcotics (Articles L. 626, L. 627, L. 629, L. 630-1, R. 5165 et seq. of the Public Health Code) and the customs offence of smuggling prohibited goods (Articles 38, 215, 414, 417, 419 and 435 of the Customs Code, Articles 42, 43-1 et seq. and 44 of the Penal Code). By an order dated 25 August 1980, they were committed for trial before the Tribunal de Grande Instance, Bobigny.

On 27 March 1981, the 16th Chamber of this court acquitted Mr Lupia Salabiaku and K. giving them the benefit of the doubt but found the applicant guilty. It stated in particular:

"The accused’s bad faith is evidenced by the fact that he showed no surprise when the first package opened in his presence turned out to contain none of the foodstuffs contained in the second package, although he described clearly what he claimed to be expecting from Zaïre and received in the second.

The latter package arrived in Brussels in circumstances which it has not been possible to determine and its existence cannot rebut presumptions which are sufficiently serious, precise and concordant to justify a conviction ...."

Consequently, the court imposed on Mr Amosi Salabiaku a sentence of two years’ imprisonment and a definitive prohibition on residing in French territory. Furthermore, in respect of the customs offence, it imposed on him a fine of 100,000 French francs (FF), under Article 414 of the Customs Code, to be paid to the customs authorities, which had joined the proceedings as a civil party.

The applicant and the Public Prosecutor appealed.

On 9 February 1982, the Paris Court of Appeal (10th Chamber) set aside the judgment with regard to the criminal offence of illegal importation of narcotics, on the following grounds:

"... the facts alleged against the accused are not sufficiently proven; ... in fact, although Mr Amosi Salabiaku, who had been expecting only a parcel of victuals, took possession of a very heavy trunk secured by a padlock to which he did not have the keys, which bore no name of any addressee and for which he did not have the corresponding luggage ticket counterfoil, it has been established that a package in his name containing victuals arrived two days afterwards in Brussels on an Air Zaïre flight from Kinshasa. This package had apparently been sent to Brussels in error, its intended destination being Paris;

... in those circumstances, it is not impossible that Mr Amosi Salabiaku might have believed, on taking the trunk, that it was really intended for him; ... there is at least a doubt the benefit of which should be granted to him, resulting in his acquittal ..."

The court, on the other hand, upheld the first-instance decision as regards the customs offence of smuggling prohibited goods:

"... any person in possession (détention) of goods which he or she has brought into France without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted ...;

... Mr Amosi Salabiaku went through customs with the trunk and declared to the customs officials that it was his property; ... he was therefore in possession of the trunk containing drugs;

... he cannot plead unavoidable error because he was warned by an official of Air Zaïre ... not to take possession of the trunk unless he was sure that it belonged to him, particularly as he would have to open it at customs. Thus, before declaring himself to be the owner of it and thereby affirming his possession within the meaning of the law, he could have checked it to ensure that it did not contain any prohibited goods;

... by failing to do so and by having in his possession a trunk containing 10 kg of herbal and seed cannabis, he committed the customs offence of smuggling prohibited goods ..."

The Court of Appeal also confirmed the fine of 100,000 FF imposed on the applicant; it fixed at the minimum period the duration of imprisonment for non-payment.

Mr Amosi Salabiaku appealed on points of law. He relied on paragraphs 1 and 2 of Article 6 (art. 6-1, art. 6-2) of the Convention: in his submission, by placing upon him an "almost irrebuttable presumption of guilt", which "operated in favour of the customs authorities", the Court of Appeal had violated both his right to a fair trial and his right to be presumed innocent until proved guilty.

The Court of Cassation (Criminal Chamber) dismissed the appeal on 21 February 1983, finding that the judgment appealed against had "properly" applied Article 392 para. 1 of the Customs Code, under the terms of which "the person in possession of contraband goods shall be deemed liable for the offence":

"... contrary to what is alleged, the aforementioned Article was not repealed by implication by France’s adhesion to the Convention ... and had to be applied since the Court of Appeal, which reached its decision on the basis of the evidence adduced by the parties before it, found that the accused was in possession of the trunk and inferred from the fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid."

Infringements under the French Customs Code constitute criminal offences with various specific characteristics.

The Customs Code essentially prohibits smuggling (Articles 417 to 422) and undeclared importation or exportation (Articles 423 to 429). This case is concerned solely with smuggling. The notion of smuggling covers "any importation or exportation effected outside official customs premises and any infringement of the provisions or regulations concerning the possession and transport of goods within the customs territory" (Article 417 para. 1), for example, but not exclusively, where the goods concerned are "prohibited on importation" (Article 418 para. 1, to be read in conjunction with Article 38).

At the material time Article 408 classified these infringements in five classes of petty offences (contraventions) and three of more serious offences (délits). Articles 410 to 416 imposed "primary penalties" which varied according to the gravity of the infringement: such penalties included fines fixed either within set maximum and minimum limits (Articles 410 para. 1, 412 and 413 bis) or at "between one and three times the amount of duty and taxes evaded or unpaid" (Article 411 para. 1), "the value of the disputed goods" (Article 413), of "the contraband article" (Articles 414 and 415) or of "the confiscated articles" (Article 416), with a fixed minimum (Article 437); confiscation of "the disputed goods" (Article 412) or "the contraband article", "the means of transport" and "articles used to conceal the offence" (Articles 414, 415 and 416); and imprisonment for terms of up to one month (Article 413 bis), three months (Article 414), one year (Article 415) or three years (Article 416), according to the type of offence involved.

Mr Salabiaku was charged under Article 414, according to which:

"Any act of smuggling and any undeclared importation or exportation of goods falling within the category of goods which are prohibited ..., on importation, ..., shall be punishable by the confiscation of the contraband article, confiscation of the means of transport employed, confiscation of articles used to conceal the offence, a fine of not less than the value of the contraband article and not more than three times its value and a term of imprisonment of up to three months."

Certain of these punitive measures - fines not fixed in advance and confiscations - are also described as "fiscal penalties" (Articles 343 para. 2 and 415). In general they are regarded as being compensatory in nature in so far as they are intended to make good loss sustained by the customs authorities.

There are also a number of "additional penalties" (Articles 430 to 433), including in particular measures of disqualification (Article 432).

Both primary and additional penalties may give rise to an entry in the criminal record of the person concerned.

Seizure "reports" drawn up "by a customs officer or any other official" may constitute - and usually do - evidence of customs offences (Articles 323 to 333). Depending on whether they are issued by one or more officials, they attest "the facts which they record" merely until "the contrary is proved" or until "forgery proceedings have been instituted" (Articles 336 para. 1 and 337 para. 1). They are "remitted to the Public Prosecutor and the persons charged with the offence are brought" before him (Article 333 para. 1).

The initiative for instituting prosecution lies with the Public Prosecutor’s Office for "criminal penalties", stricto sensu, and with the customs authorities - or the Public Prosecutor’s Office, "in conjunction with the criminal proceedings" - for "fiscal penalties" (Article 343). District courts have jurisdiction to try petty customs offences, and criminal courts, more serious customs offences (Articles 356 and 357). In principle the procedure follows the rules of the ordinary law (Articles 363, 365 and 366).

The offence with which the applicant was charged - the smuggling of narcotics, "prohibited goods" (Article 414) - does not necessarily require possession. However, where possession is established, "the person in possession ... is deemed liable for the offence", without prejudice to any penalties which may be incurred by other persons, for example any accomplices (Article 398) or "persons with an interest in the offence" (Article 399). This principle is set out in Article 392 para. 1.

The provision in question appears in Chapter V ("Liability and Joint Liability") of Title XII ("Contentious Proceedings") of the Customs Code, at the beginning of Section I ("Criminal Liability"), and not among the "punitive provisions" of Chapter VI. It is a general clause which applies both to smuggling offences and undeclared importation or exportation as well as to any "unlawfully imported or exported goods", irrespective of whether they are prohibited as such.

Read strictly this provision would appear to lay down an irrebuttable presumption, but, in any event, its severity has been to some extent moderated by the decisions of the courts. Thus the Court of Cassation now upholds the trial court’s unfettered power of assessment with regard to "evidence adduced by the parties before it" (see, for example, the Abadie judgment of 11 October 1972, Bulletin no. 280, p. 723) and recognises that the accused may exculpate himself by establishing "a case of force majeure" resulting "from an event responsibility for which is not attributable" to him and which "it was absolutely impossible for him to avoid", such as "the absolute impossibility ... of knowing the contents of [a] package" (see, for example, the Massamba Mikissi and Dzekissa judgment of 25 January 1982, Gazette du Palais, 1982, jurisprudence, pp. 404-405, and the judgment delivered in this case on 21 February 1983, paragraph 15 above; see further Court of Appeal, Paris, 10 March 1986, Chen Man Ming and Others, Gazette du Palais, 1986, jurisprudence, pp. 442-444). At the same time Article 399, which concerns third parties "with an interest in the offence" and not "persons in possession", states in paragraph 3 thereof that "the interest in the offence cannot be imputed to a person who has acted out of necessity or as a result of unavoidable error".

On the other hand under paragraph 2 of Article 369 the courts were required to refrain from "acquitting offenders for lack of intent". While it is true that Law no. 87-502 of 5 July 1987 repealed this provision, clearly this had no effect on the present case.

It is necessary to distinguish between the possibility of a simple acquittal and that provided for in Article 369 para. 1: namely recognition of extenuating circumstances. In such cases the court may, inter alia, "refrain from imposing on the accused the criminal penalties laid down in the ... Code", order that their enforcement be suspended or decide "that the conviction should not be entered in ‘Bulletin no. 2’ of the criminal record", order the return to the person concerned of certain confiscated goods or reduce the amount of the "fiscal fines".


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine P1-1;Violation of P4-2

On 27 November 1993 Strasbourg police officers spotted an occupied vehicle parked in a car park. It turned out that the vehicle had been stolen the previous day in Strasbourg. The investigators proceeded to arrest O.H., who had come to take delivery of the stolen vehicle, and S.B, who had handled it. The on-the-spot investigation established that other transactions had taken place and that the two arrested men used to meet in a hotel in Brumath (Bas-Rhin). The police officers went to the hotel where they arrested O.H.'s wife and Miss C.E while the latter was about to get into a vehicle belonging to the applicant.

When questioned at the hotel C.E. stated that her boyfriend, the applicant, had been staying at the hotel for some time, but had been taken into hospital in Germany on 26 November 1993 because his health had given cause for alarm.

Their hotel room was searched. The investigators seized a German passport in the applicant's name, 7,700 German marks (DEM) and 2,150 French francs (FRF) found in C.E.'s handbag, bank documents, a vehicle registration certificate and various hand-written documents. Those items were sealed and deposited at the consignment of exhibits department at the Strasbourg tribunal de grande instance.

After her release from police custody no court proceedings were brought against C.E. None were brought against the applicant either.

On 30 November 1993 O.H. and S.B were charged by an investigating judge of the Strasbourg tribunal de grande instance.

The applicant's lawyer lodged an application under Article 99 of the Code of Criminal Procedure on 6 December 1993, registered at the investigating judge's office on 8 December 1993, requesting the investigating judge to return the money and other seized items, including the passport. He received no reply from the investigating judge.

On 5 January 1994 the applicant was arrested by the criminal police of Pirmasens (Germany) and convicted by a criminal court in Landau. Since then he has since been imprisoned in Zweibrücken Prison, where he is due to remain until 4 March 2006.

O.H. and S.B. were committed for trial at the Strasbourg Criminal Court where they were tried and convicted on 13 June 1994 without the applicant or his girlfriend having been informed. The applicant could not therefore lodge an application for the return of his possessions with the criminal court trying the case.

On 14 September 1994 the applicant's lawyer renewed his request to the investigating judge of 6 December 1993. He received no reply.

On 28 October 1994 the applicant's lawyer lodged an application with the public prosecutor under Article 41-1 of the Code of Criminal Procedure for the return of the DEM 7,700, the bank statements and a rechargeable mobile-telephone battery.

On 7 November 1994 the public prosecutor refused his application on the ground that the items had been confiscated by order of the Criminal Court in its judgment of 13 June 1994 in the proceedings against O.H. and S.B. In his reply the public prosecutor referred to the application lodged with the investigating judge on 6 December 1993 and renewed on 14 September 1994.

On 6 January 1995 the applicant's lawyer lodged an application with the Sixth Criminal Division of the Strasbourg tribunal de grande instance under Article 710 of the Code of Criminal Procedure for the return of the seized items. The application, which just bore the stamp of the Strasbourg public prosecutor's office, dated 6 January 1995, concerned the applicant's passport, the DEM 7,700, the bank statements and the rechargeable mobile-telephone battery.

On 6 February 1995 the public prosecutor replied to that application as follows:

“Despite my letter of 7 November 1994 advising you that nothing could be returned to Mr Baumann on any grounds whatsoever because the court had ordered confiscation of the sealed items, you persist in wishing to obtain a hearing in connection with the sealed items in question.

I regret to have to repeat myself in pointing out that the judgment dated 9 May 1994 has become res judicata and that Article 710 of the Code of Criminal Procedure does not provide for the reopening of proceedings terminated by a confiscation decision which has become final.

Article 710 of the Code of Criminal Procedure is reserved for interlocutory applications relating to the execution of a decision and not disputes about the penalties imposed. The court in question did not have any power to reconsider a measure which had become res judicata. ...”

In a letter of 12 February 1996 C.E. requested the public prosecutor to return the seized DEM 7,700 and FRF 2,150 on the ground that the money belonged to her and that she was not in any way involved in the criminal proceedings. In a letter of 29 April 1996 she renewed her request, stating among other things: “my ex-boyfriend has put me in a difficult position which has seriously changed my life ... I have incurred debts because of him ... it is very important for me to recover my money...”

The relevant provisions of the Code of Criminal Procedure provide:

“Where the nature of the crime is such that it can be proved by seizing papers, documents or other objects in the possession of persons who appear to have participated in the crime or to hold documents or objects relating to the offence, a senior police officer shall immediately go to their place of residence where he shall search the premises and draw up a search report.

He alone, together with the persons listed in Article 57 and those to whom he may refer under Article 60, shall have power to examine papers or documents before seizing them.

However, he must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected.

An inventory shall be made immediately of all seized objects and documents which shall then be placed under seal. Where an on-the-spot inventory presents difficulties, the items shall be provisionally sealed until an inventory of them can be made and they can be definitively sealed, which shall be done in the presence of the persons present during the search in accordance with the conditions laid down in Article 57.

With the agreement of the public prosecutor, the senior police officer shall retain only those objects and documents necessary for establishing the truth.”


CASE OF TEMPESTI CHIESI AND CHIESI v. ITALY

Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were both born in 1940 and live in Florence.

They are the owners of a flat in Florence, which they had let to A.Q.

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.

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.

In the meanwhile the tenant died and his wife refused to leave the premises.

On 25 September 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for their son.

On 16 November 1989, the applicants served notice on the tenant requiring her to vacate the premises.

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.

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.

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.

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.

On 9 March 2001, the applicants recovered possession of the flat.

Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.

The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies.

Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.

Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:

“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.

However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.

In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.


CASE OF ASADBEYLI AND OTHERS v. AZERBAIJAN

Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were participants in or were alleged to be organisers of the unauthorised demonstration of 16 October 2003, which escalated into violent clashes between the law-enforcement authorities and the demonstrators, as described below.

The events of the present case occurred in the aftermath of the presidential elections of 15 October 2003. The main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, lost the elections of 15 October 2003.

On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party’s headquarters in the centre of Baku, claiming victory for their candidate in the election. Violent altercations between opposition supporters and the security forces took place at this time.

At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that on the way some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence.

It has been claimed that some police officers who had been deployed in Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder, and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question.

At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath.

On 16 October 2003 the Prosecutor General’s Office instituted criminal proceedings (case no. 80308) concerning the events of 15 and 16 October 2003. More than 100 people, of the several hundred arrested in connection with those events, were eventually prosecuted in connection with those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan, no. 22684/05, §§ 23 and 114, 2 April 2009).

Almost the whole pre-trial investigation, in respect of all the defendants, was conducted in the context of this single set of criminal proceedings. However, as the investigation drew close to completion, criminal case no. 80308 was gradually split into several cases, eventually dividing the accused into fifteen separate groups. It appears that the only reason formally given by the prosecution for splitting up the case was the concern that the sheer number of defendants involved (more than 100) would prolong the proceedings and that it would be impractical to hold a single trial involving so many defendants (see Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 28, 26 July 2011). Furthermore, it appears that no significant investigative steps were taken after the cases were split (ibid., §§ 29 and 166). Each of the fifteen defendant groups thus created was tried separately. Fourteen of those trials concerned the events of 16 October 2003: they were all conducted by the Assize Court and were completed in March and April 2004 (one trial concerned the events of 15 October 2003, and this trial was conducted by the Sabail District Court). All the defendants in those trials, including the applicants in the present case, were found guilty and sentenced to either imprisonment, suspended prison terms or restriction of liberty.

The circumstances relating to each individual applicant in the present case are summarised separately below.

Mr B. Asadbeyli was the head of the Sumgayit branch of the Müsavat Party. Mr S. Hamidov, Mr E. Huseynli and Mr H. Mammadov held various positions within the Müsavat Party. Mr S. Aliyev and Mr E. Mammadov were students at a public university and had no formal affiliation to any political party.

Applicant H. Mammadov died on 27 May 2008, after the events described below and after the present application had been lodged with the Court. His brother, Mr Islam Mammadov, expressed a wish to continue pursuing the application on his behalf.

Mr S. Aliyev was arrested on 16 October 2003 during the dispersal of the demonstration by the police. He was charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. On the same day the Nasimi District Court remanded him in custody for a period of three months.

Mr E. Mammadov was also arrested on 16 October 2003. He states that the arresting police officers issued a “report on an administrative offence” (inzibati xəta barədə protokol), accusing him of non-compliance with police orders in Azadliq Square, an offence under Article 310.1 of the Code of Administrative Offences (“the CAO”).

It appears from the documents submitted by the Government that on 18 October 2003 Mr E. Mammadov was brought before the judge of the Narimanov District Court in connection with the charge under the CAO. According to the transcript of the hearing, the applicant admitted that he had not complied with police orders, and expressed remorse for his actions. On 18 October 2003 the Narimanov District Court convicted him under Article 310.1 of the CAO and sentenced him to fifteen days’ “administrative detention”.

On 25 October 2003 Mr E. Mammadov lodged an appeal seeking a reduction of his sentence on the grounds of family circumstances and the fact that he was a student. On the same day, 25 October 2003, the Court of Appeal reduced the sentence to nine days’ detention and, having regard to the fact that he had already been in detention for nine days, ordered his immediate release.

According to Mr E. Mammadov, no copies of decisions concerning these administrative proceedings were made available to him.

However, soon after his release from “administrative detention”, Mr E. Mammadov was arrested again and charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. In particular, he was accused of joining other participants in the demonstration in destroying public benches and asphalt and concrete revetments of pavements and roads, and of using stones as well as wooden and concrete debris obtained from the properties destroyed to assault police officers in Azadliq Square, in a manner posing a danger to their life and health.

Mr E. Mammadov was then remanded in custody pending criminal trial.

During their pre-trial detention, both Mr S. Aliyev and Mr E. Mammadov were expelled from the university.

On 17 October 2003 Mr B. Asadbeyli, Mr S. Hamidov, Mr E. Huseynli and Mr H. Mammadov were taken from their homes to the Sumgayit City Prosecutor’s Office for questioning. Several hours later they were allowed to go home but were instructed to come back the next morning. On 18 October 2003 they were taken to the Prosecutor General’s Office in Baku. When they arrived in Baku they were held in a police car for around nine to ten hours outside the building of the Prosecutor General’s Office. In the evening they were taken into the building and questioned. On both days they were questioned in the absence of a lawyer.

Following the questioning, the four applicants were charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court, issuing separate detention orders for each of the four applicants, remanded them in custody for three months. Some of the applicants were represented by Stateappointed lawyers at the hearings.

On 15 November 2003 the court replaced Mr S. Hamidov’s detention with a written undertaking not to leave his place of residence, and he was released pending trial.

According to the applicants, prior to their trial, several high-ranking state officials, including the Prosecutor General and the Minister of Internal Affairs, made public statements on television and in newspapers, referring to the participants in the demonstration of 16 October 2003 as “criminals” and promising that they would be punished.

In the course of the investigation, following a request by the prosecution, the Nasimi District Court authorised the Prosecutor General’s Office to obtain from Azercell Telecom, a cellular network operator, detailed information on all mobile phone connections registered during the period from 11 a.m. to 5 p.m. on 16 October 2003 in the area around Azadliq Square, with the purpose of establishing whether various defendants were present in the square at the relevant time. However, according to Mr B. Asadbeyli, he subsequently discovered that the case file contained print-outs of a “call details report” concerning all his private phone calls made over a longer time span and a larger geographical area than those authorised by the court.

All the applicants were tried together by the Assize Court (this trial was referred to as “Trial Group 8” in the OSCE report cited below). In total, there were nine defendants in the case, including the applicants.

The court relied on statements from a number of police officers as witnesses, who testified against the demonstrators. During the pre-trial investigation several police officers were shown photographs of the applicants and recognised them as demonstrators who had been throwing stones at police officers during the events of 16 October 2003. According to the applicants, they were not given an opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicants were able to question all the witnesses who testified in court.

By a judgment of 24 March 2004, the Assize Court convicted all the applicants as charged under Articles 220.1 and 315.2 of the Criminal Code. Mr B. Asadbeyli, Mr S. Hamidov, Mr H. Mammadov and Mr E. Mammadov were given suspended sentences of four years and six months’ imprisonment and released immediately from the courtroom. Mr E. Huseynli and Mr S. Aliyev were sentenced to three and two years’ imprisonment respectively.

All the applicants appealed against the Assize Court’s judgment of 24 March 2004. The Court of Appeal examined all six appeals together. According to the applicants, they were not notified in advance of the time of the hearing at the Court of Appeal. Only Mr B. Asadbeyli, Mr S. Aliyev and the latter’s lawyer were able to attend the hearing. Mr B. Asadbeyli learned of the examination of the appeal by chance on the day the hearing was held. On 8 June 2004 the Court of Appeal dismissed the applicants’ appeals and upheld the Assize Court’s judgment of 24 March 2004. That court reduced the sentences of Mr E. Huseynli and Mr S. Aliyev to two years and one year respectively.

On 30 July 2004 Mr E. Huseynli lodged a cassation appeal against the Court of Appeal’s judgment. According to the Government, on 9 March 2005 the Supreme Court informed the applicant of the date of the hearing; however, the applicant failed to request the court to ensure his presence at the hearing and both the applicant and his lawyer failed to appear at the hearing. However, according to the applicant, he did not receive any response from the Supreme Court to his cassation appeal.

After his release from prison, on 28 March 2005 Mr E. Huseynli sent an inquiry to the Supreme Court concerning his appeal. On 31 March 2005 the Supreme Court sent him a letter informing him that his appeal was still pending and stating, inter alia: “... your cassation appeal will be examined.”

According to Mr E. Huseynli, his appeal was never examined.

On an unspecified date, Mr S. Aliyev lodged a cassation appeal with the Supreme Court. In reply, on 3 September 2004 the Supreme Court sent him a letter stating the following:

“The Supreme Court has received your cassation appeal. We would like to inform you that if you disagree with the judgment of the Court of Appeal, you may lodge a cassation appeal with the Supreme Court in accordance with Articles 407-413 of the Code of Criminal Procedure.”

According to Mr S. Aliyev, his appeal was never examined.

The other four applicants, Mr B. Asadbeyli, Mr S. Hamidov, Mr H. Mammadov and Mr E. Mammadov, also lodged cassation appeals against the Court of Appeal’s judgment of 24 March 2004. The Supreme Court examined their appeals together and, on 19 October 2004, dismissed them, upholding the lower courts’ judgments. The full text of the Supreme Court’s decision was sent to the applicants on 2 November 2004.

Mr S. Aliyev served his full one-year prison sentence and was released on 16 October 2004.

Following a presidential pardon decree, on 21 March 2005 Mr E. Huseynov was released from serving the remainder of his sentence of two years’ imprisonment.

The applicant was arrested on 16 October 2003 during the dispersal of the demonstration.

After the arrest, he was taken to the Sabail District police station and later to the Baku Central police station. His family was not informed of his arrest. According to the applicant, at both police stations he was questioned in the absence of a lawyer. Interrogations were accompanied by illtreatment, in order to make him confess that he had actively participated in the disorder and had used violence against police, as well as to disclose the names of the organisers of the disorder.

On 17 October 2003 the applicant was formally charged under Articles 220 and 315.2 of the Criminal Code. He was then taken to the Prosecutor General’s Office, where, he states, he was forced to sign selfincriminatory statements.

On the same day, a district court in Baku remanded the applicant in custody for three months. This decision was taken in the applicant’s absence. He was not informed of the decision and was not given a copy of it. He was still unrepresented by a lawyer at this stage.

On 18 October 2003 the applicant’s parents were informed about the applicant’s arrest. On 23 October 2003 he was allowed to meet his lawyer for the first time.

The trial at the Assize Court began on 30 January 2004 (Trial Group 3). The applicant was tried with six others, including another applicant in this case, Mr Ramiz Guliyev. During the first hearing, the applicant declared that he was not guilty and claimed that he had been forced to give self-incriminatory evidence during his first days in detention. He asked the court not to admit in evidence his statements made during the pre-trial investigation. Some of the other defendants made similar complaints and requests.

Following the applicant’s allegations of ill-treatment in pre-trial detention, the court ordered a medical examination of the applicant. According to the forensic report of 14 February 2004, the forensic expert found no injuries which could have been inflicted at the time and in the circumstances alleged by the applicant. The applicant’s lawyer protested, claiming that he had not been informed about the time and place of the medical examination and was therefore unable to put questions to the medical expert. His request for a new medical examination was refused. The court found the applicant’s and other defendants’ allegations of ill-treatment unsubstantiated and admitted in evidence their statements given during pretrial investigation.

During the trial, the court heard and relied on statements from over 100 prosecution witnesses (the great majority of whom were police officers and military personnel) who testified against all demonstrators in general, describing the public disorder which had taken place and characterising the demonstrators’ intentions and actions as violent. The court also heard two police officers who testified against the applicant in particular; they stated that they had seen the applicant throwing stones at police officers. The court also watched a video recording which allegedly identified the applicant as one of the demonstrators throwing stones and running around with a club and a shield in his hands. The court refused the applicant’s request for witnesses to be examined who would testify to violence by law-enforcement officers against peaceful demonstrators, and also refused to admit in evidence a video recording and photographs with scenes of police brutality against demonstrators. The court noted that this evidence did not contain any information specifically concerning the applicant, and was therefore irrelevant.

On 4 March 2004 the Assize Court convicted the applicant of organising mass disorder and use of violence against the police, and sentenced him to four years’ imprisonment.

The applicant lodged an appeal, complaining, inter alia, that the Assize Court had conducted the proceedings unfairly and had relied only on the evidence provided by police officers. On 29 April 2004 the Court of Appeal dismissed the appeal and upheld the Assize Court’s judgment. On 21 September 2004 the Supreme Court upheld the lower courts’ judgments.

The applicant was an active member of the Müsavat Party. He was an election observer during the presidential elections of 15 October 2003.

On 17 October 2003 the applicant was taken from his home to a police station and questioned. He told the police that during the events of 16 October 2003 he had not been present in Azadliq Square but had been in another part of the city. He was then allowed to leave the police station.

However, on 21 October 2003 he was arrested and accused of resisting the police when he had been called to the police station to testify about the events of 16 October. The applicant was brought before a judge of the Yasamal District Court who, on the same day, found the applicant guilty of resistance to the police under Article 310.1 of the Code of Administrative Offences, and sentenced him to fifteen days’ “administrative detention”.

On the same day, the applicant was taken to the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) where he was asked questions about his role in the events of 16 October 2003. According to the applicant, the interrogators beat him and burned him with cigarettes. He was held in the OCD until 31 October. He stated that throughout his detention he was ill-treated by various means, such as beating, crushing his fingers and toes, and burning his skin with cigarettes.

On 28 October 2003 the applicant was taken to the Prosecutor General’s Office for interrogation, but refused to testify because his lawyer was absent. He was taken back to the OCD.

The applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”. On 31 October 2003 the applicant was taken to an unspecified district court, which remanded him in custody for three months. The applicant was not represented by a lawyer during this hearing. Following this, the applicant was transferred from the OCD’s detention facility to Detention Facility no. 1.

The applicant was tried at the Assize Court with six others (Trial Group 3), one of whom was another applicant in this case, Mr Shahin Gojayev (see section C. above). It appears that during the trial he was represented by a State-appointed lawyer. In his submissions to the court, the applicant maintained that he was not in Azadliq Square on 16 October 2003.

Some of the facts concerning the trial and witnesses heard by the court have been described above (see paragraph 48 above). As to the applicant’s particular situation, the court heard statements from several police officers and one civilian witness, who had been shown a photograph of the applicant during the pre-trial investigation and had identified him as one of the demonstrators who had been throwing stones at the police officers during the events of 16 October 2003. According to the applicant, those statements were false and hearsay evidence. The witnesses gave the same statements during the trial. According to the applicant, he was not given an opportunity to confront the witnesses during the pre-trial investigation. According to the Government, he was given an opportunity to confront them at the trial hearings.

According to the applicant, during the trial, he requested the court to hear three witnesses who could confirm that he was not in Azadliq Square on 16 October 2003. However, the court heard only one of these witnesses and refused to hear the other two.

The applicant also complained before the Assize Court that he had been ill-treated during his detention in the OCD’s detention facility. The court requested that the applicant be medically examined by a forensic expert. The forensic report of 24 February 2004 found a dark bruise on one of the fingers of the applicant’s left hand and four dark spots on his belly. The expert estimated that the bruise on the finger had most likely been caused by a hard blunt object about one month before, while the dark spots on the belly could be considered marks of burns which had been inflicted about two months before. The court also had regard to a letter from Detention Facility No. 1, dated 24 February 2004, stating that no injuries had been observed on the applicant’s body when he was transferred to Detention Facility No. 1 on 31 October 2003. The court concluded that the applicant’s allegations that he had been ill-treated in the OCD’s detention facility during the period between 21 October and 31 October 2003 were not supported by the available evidence.

On 4 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment.

Following an appeal by the applicant, on 29 April 2004 the Court of Appeal upheld the Assize Court’s judgment of 4 March 2004. On 23 November 2004 the Supreme Court upheld the lower courts’ judgments.

Following a presidential pardon decree of 21 March 2005, the applicant was released from serving the remainder of his sentence.

The applicant was a member of the Müsavat Party. During the presidential elections of 15 October 2003 he was the chairman of the Gabala regional headquarters for I. Gambar’s electoral campaign.

The applicant was in Azadliq Square on 16 October 2003. He went back to Gabala on the same day, after the demonstration. In the morning of 17 October he was taken to a local police station and questioned. In the evening of 17 October he was taken to Baku, where he was detained in a police station until the next day.

On 18 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court remanded the applicant in custody for three months. During the court hearing, the applicant was represented by a State-appointed lawyer whom he had not met before. The lawyer did not introduce himself to the applicant and did not talk to him. The applicant did not meet this lawyer again after the hearing of 18 October 2003.

The applicant was tried by the Assize Court with six others (Trial Group 5). It appears that he was represented by a lawyer during the trial. In his submissions to the court, the applicant denied that he had personally taken part in any violence during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and police. The court relied on statements from more than 200 prosecution witnesses, mostly police officers and internal forces soldiers, who testified against all the demonstrators as a group, describing the public disorder which took place. During the pre-trial investigation, one police officer and one soldier were shown a photograph of the applicant and recognised him as one of the demonstrators who had been throwing stones at the police officers during the events of 16 October 2003. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicant’s lawyer had questioned them at the trial hearings.

On 5 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to four years and six months’ imprisonment.

On 27 April 2004 the Court of Appeal upheld this judgment. It appears from the case file that the applicant’s lawyer, but not the applicant himself, was present at the appellate hearings. On 21 December 2004 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 5 January 2005. According to the applicant, neither he nor his lawyer were present at any of the appeal hearings.

In accordance with a presidential pardon decree of 19 March 2005, the applicant was released from serving the remainder of his prison sentence. Despite his early release, in accordance with Article 83 of the Criminal Code, the applicant’s conviction would remain on his criminal record for a period of six years after he was released.

In July 2005 the applicant made an application to the Gabala District Court for early expunging of the conviction from his criminal record, in accordance with Article 83.5 of the Criminal Code, taking into account his good behaviour in prison and after release. On 26 July 2005 the Gabala District Court refused this application. The Court of Appeal and the Supreme Court upheld this decision on 31 August 2005 and 22 March 2006 respectively.

According to the applicant, he had intended to stand as a candidate in the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so.

The applicant was the chairman of several non-governmental organisations dealing with issues of civil society and freedom of religion, a chief editor of a magazine and an information portal, and a religious leader of a small congregation of Muslims. During the presidential elections of 15 October 2003, he publicly supported I. Gambar.

The applicant was in Azadliq Square on 16 October 2003. According to him, he left the square prior to the eruption of violence between the demonstrators and the police, and observed the subsequent events from a distant location.

On 17 October 2003 the applicant was leading public prayers in Juma Mosque. During the prayers, a number of police officers surrounded the mosque with the intention of arresting the applicant. The applicant managed to avoid arrest with the aid of some “members of the international community” in Baku who, according to the applicant, included representatives of the OSCE, the Council of Europe and some foreign embassies. He was taken to the Norwegian embassy, where he remained for three days.

According to the applicant, on the same day, state television reported that all the “organisers” of the public disorder of 16 October 2003 had been arrested, with the exception of the applicant and one other person.

The applicant left the Norwegian embassy after receiving guarantees that “no unlawful actions would be taken against him”. Shortly thereafter, he attended a conference in Georgia. According to the applicant, during his stay in Georgia, it was reported on State television that “having committed a crime, he fled the country”. According to the applicant, a number of government officials, including the Prosecutor General, were featured in those television reports.

On 1 December 2003 the applicant was summoned to the Prosecutor General’s Office. After some questioning, he was arrested in connection with the events of 16 October 2003.

On 3 December 2003 the applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”. On same day, at around 7 p.m., the Nasimi District Court remanded him in custody for three months.

During the first three days of detention the applicant was kept in a cold single cell, where he had to sleep on a metal bed without a mattress. He was then transferred to a cell which had previously been used for convicts awaiting the execution of their death sentence.

On 5 December 2003 the Prosecutor General sent a letter to the Head of the Baku City Executive Authority in connection with the alleged unlawfulness of the use of Juma Mosque by the applicant’s religious congregation, a matter which was not directly related to the criminal proceedings in the present case. However, among other things, the letter also contained the following statements:

“The Prosecutor General’s Office is conducting a criminal investigation under Articles 220.1, 233 and 315.2 in connection with the mass disorder in the city of Baku on 15 and 16 October 2003 ...

It has been determined that Ilgar Allahverdiyev took part in the mass disorder in Baku.”

The applicant was tried by the Assize Court with eight other defendants (Trial Group 13). The court relied on statements from a large number of police officers, who testified against the defendants and the demonstrators in general. Most of those statements did not relate specifically to the applicant. Two police officers testified that they had seen the applicant at Azadliq Square and that they had heard from someone that the applicant had instructed some of his followers to go to the square. The court also relied on the pre-trial deposition of a witness who failed to appear at the court hearings, despite the applicant’s requests to cross-examine him. According to the applicant, written depositions from some prosecution witnesses were identical, word for word. The court refused to hear the majority of witnesses who had been called by the applicant to testify on his behalf.

On 2 April 2004 the Assize Court convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code. He received a suspended sentence of five years’ imprisonment and was released immediately from the courtroom.

On 25 May 2004 the Court of Appeal upheld this judgment. According to the applicant, the appellate hearing took place in the presiding judge’s office in the applicant’s absence, despite his request for the hearing to be postponed owing to his inability to attend because of illness. The hearing lasted a few minutes.

On 5 April 2005 the Supreme Court dismissed the applicant’s cassation appeal. According to the applicant, the hearing in the Supreme Court lasted six minutes.

The applicant was in Azadliq Square on 16 October 2003. In the evening of the same day he was arrested after he had returned home from the demonstration, and was taken to a local police station. He was then questioned, with no lawyer present, and detained at the police station until the next day.

On 17 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day the Nasimi District Court remanded the applicant in custody for three months. During the court hearing the applicant was represented by a State-appointed lawyer he had not met before.

The applicant was tried at the Assize Court with seven others (Trial Group 11). It appears that he was represented by another State-appointed lawyer during the trial. In his submissions to the court, the applicant denied taking part personally in any violence that had taken place during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and the police.

During the trial, the Assize Court relied on statements from a number of police officers and internal forces soldiers as witnesses who testified against the demonstrators. Several police officers testified that they had seen the applicant in Azadliq Square. During the pre-trial investigation two police officers had been shown a photograph of the applicant and recognised him as one of the demonstrators throwing stones at the police officers during the events of 16 October 2003. These police officers gave the same testimony during the trial. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation, or to cross-examine them during the trial.

On 19 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment, suspended, with a four-year probation period. The court ordered that he be released after the conviction became final following any appeals.

Following an appeal by the applicant, on 24 May 2004 the Court of Appeal upheld the Assize Court’s judgment of 19 March 2004. On 30 August 2005 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 13 October 2005.

Although the applicant was released because the sentence was suspended, his conviction would remain on his criminal record for a period of six years. According to the applicant, he had intended to stand as a candidate for the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so.

In July 2005 the applicant made an application to the Nasimi District Court for early expunging of the conviction from his criminal record. On 15 July 2005 the Nasimi District Court refused this application, noting that in accordance with the Criminal Code it was only possible for such a conviction to be expunged after the expiry of at least half the probation period, which in the applicant’s case had not yet happened. The Court of Appeal and the Supreme Court upheld this decision on 2 September 2005 and 23 March 2006 respectively. The full text of the Supreme Court’s decision of 23 March 2006 was sent to the applicant on 11 April 2006.

Article 310 of the CAO provides:

Article 310. Deliberate non-compliance with the lawful order of a police officer or military serviceman

“310.1. Deliberate non-compliance [by individuals] with the lawful orders of a police officer or military serviceman while the latter is carrying out his duties of protection of public order –

Article 220 of the Criminal Code provides:

Article 220. Mass disorder

“220.1. Organising or participating in mass disorder involving acts of violence, plunder, arson, destruction of property, use of firearms or explosives, or armed resistance to public officials –

is punishable by imprisonment for a period of four to twelve years.

220.2. Inciting active resistance to lawful orders of public officials and to mass disorder and violence against citizens –

is punishable by imprisonment for a period of up to three years.

Article 315 of the Criminal Code provides:

Article 315. Resistance to or use of violence against public officials

“315.1. Use of violence against, or violent resistance to, a public official in connection with the performance of his or her duties, or acts or threats of violence towards relatives of [such a public official], which do not pose danger to life or health –

315.2. Use of violence towards persons mentioned in Article 315.1 of this Code endangering their life or health –

is punishable by imprisonment for a period of three to seven years.”

Under Article 455 of the Code of Criminal Procedure (“the CCrP”), the finding of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights is a ground for reopening the proceedings. Pursuant to Article 456, in this case, the Plenum of the Supreme Court examines the case exclusively on points of law. After the examination of the case, the Plenum of the Supreme Court may decide to quash the lower courts’ rulings and remit the case to the relevant lower court, or to vary the decision of the courts of cassation or other courts, or to quash the decision of the courts of cassation or other courts and deliver a new decision (Article 459 of the CCrP).

According to Articles 13.3.1 and 13.3.2 of the Electoral Code, persons imprisoned pursuant to a final court judgment and persons convicted of criminal offences indicated in Articles 15.4 and 15.5 of the Criminal Code do not have a right to stand for election in parliamentary, presidential and municipal elections (see also paragraph 101 below).

Article 15 of the Criminal Code classifies criminal offences by degree of gravity into offences which do not pose a major public threat, “less serious” criminal offences, serious criminal offences and especially serious criminal offences. According to Article 15.3, a “less serious criminal offence” is an offence committed deliberately or negligently for which the maximum punishment does not exceed seven years’ imprisonment. According to Article 15.4, a “serious criminal offence” is an offence committed deliberately or negligently for which the maximum punishment does not exceed twelve years’ imprisonment. According to Article 15.5, an “especially serious criminal offence” is an offence committed deliberately for which the punishment exceeds twelve years’ imprisonment.

The maximum sentence for a criminal offence under Article 220 of the Criminal Code is twelve years’ imprisonment (see paragraph 95 above); accordingly, pursuant to Article 15.4 of the same Code, it is considered a “serious criminal offence”.

According to Article 83.1 of the Criminal Code, a person convicted pursuant to a final court judgment is considered a “convicted person” from the date the judgment enters into force until the date the conviction is expunged from his or her criminal record. According to Article 83.4 of the Criminal Code, the criminal conviction of a person convicted of a “serious criminal offence” is expunged after the expiry of a period of six years from the date he or she completed serving the sentence imposed. Article 83.5 provides that a conviction may be expunged earlier if an application is made and he or she is able to demonstrate exceptionally good behaviour following conviction.

Extracts from the report by the Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), on the Trial Monitoring Project in Azerbaijan 2003-2004 (“the OSCE Report”), containing detailed observations by the OSCE trial monitors concerning various deficiencies in the trials concerning the events of October 2003, have been previously extensively quoted in the Huseyn and Others judgment (cited above, §§ 107-08).

Extracts from a number of reports by international bodies and human rights NGOs describing the violent clashes between demonstrators and law-enforcement authorities during the events of 15 and 16 October 2003 have previously been quoted in the Muradova judgment (cited above, §§ 71-77).

Among other similar reports by international NGOs, the report by Human Rights Watch entitled Crushing Dissent: Repression, Violence and Azerbaijan’s Elections (January 2004 Vol. 16, No. 1(D)), contains lengthy summaries of numerous first-hand accounts by persons arrested in connection with the events of 15 and 16 October 2003 concerning the alleged acts of torture and ill-treatment they had been subjected to while in detention. The relevant statements were made by the alleged victims in interviews personally conducted by Human Rights Watch researchers during the organisation’s two missions to Azerbaijan between September and November 2003.


Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 14+9;Not necessary to examine Art. 9;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

On 9 December 1983 the Athens Permanent Army Tribunal (Diarkes Stratodikio), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day.

In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime (kakuryima).

On 8 May 1989 the applicant seised the Supreme Administrative Court (Simvulio Epikratias) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence.

On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed.

On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues.

The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed.

On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence.

Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece.

Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant.

According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service.

On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd.

Article 70 of the Military Criminal Code in force until 1995 provided:

“A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished –

(a) if the act is committed in front of the enemy or armed insurgents, with death;

(b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and

(c) in all other circumstances, with imprisonment between six months and two years.”

By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force.

Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life.

Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes (kakuryimata). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours (plimmelimata).

Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour.

Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years.

Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record.

Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides:

“Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...”