CASE OF AHMET ÖZKAN AND OTHERS v. TURKEY

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life;Pecuniary and non-pecuniary damage - award

The case mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. They further alleged that the security forces had returned to Ormaniçi later in 1993, when they had burned houses and destroyed harvested crops, and that they had returned once again in the spring of 1994 when they had killed four villagers and forced the villagers to leave Ormaniçi.

The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15 officials.

The certified transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court.

The parties' submissions on the facts (Sections A and B) and the proceedings conducted before the domestic authorities (Section C) are summarised below. The documentary material before the Court is summarised in Appendix II and the oral evidence to the Delegates in Appendix III, which appendices are available on the Court's website and which are held in the Court's archives.

In the early morning of 20 February 1993, military forces attacked the village of Ormaniçi. Many soldiers were dressed in white camouflage gear. There was snow on the ground and it was very cold. The military forces started attacking the village with rifles and heavy weaponry and later moved into the village, systematically removing each family from their house and taking them to the village square. Many families were unable to dress and were forced into the open with their children without proper clothing and/or shoes.

Most of the male villagers were beaten as they were taken to the village square, where they were made to lie face down in the mud and snow, and were subsequently blindfolded. The villagers arrived in the square between 10 a.m. and 12 noon and remained there until just before sunset. The women and children were also assembled near the village square but were not blindfolded.

While the villagers were being gathered in the square, a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes, using an incendiary agent that they appeared to have brought with them specifically for this purpose. Many of the animals which were kept in stables or were wandering around the village were shot, or burned in their stables.

During the raid one soldier threw a bomb into the house of a villager called Mevlüde Ekin. The bomb exploded, causing severe intestinal injuries to her six-year-old-daughter Abide. Ms Ekin and her other children, together with Abide, were then evacuated to the village square. The village muhtar, Mehmet Aslan, was taken to the house of Mevlüde Ekin to accompany the soldiers in a search. It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown. During this search a soldier inside the house was shot and killed instantaneously. The army commander instructed Mehmet Aslan to indicate that he had been shot by terrorists, whereas he had in fact been shot by another soldier.

Just before sunset about twelve people who had been blindfolded, including Mevlüde Ekin's daughter Halime Ekin, were taken from Ormaniçi to Şırnak by helicopter. They were placed in custody in Şırnak. The remainder of the men were roped together and forced to walk blindfolded and, in many cases, without adequate clothing or footwear, from Ormaniçi to Güçlükonak. They had to walk some 7 kilometres in the snow, which took 2½ hours.

When the men arrived in Güçlükonak, they were put into a partly constructed military building. The floors were wet and constantly under water to a depth of about 10 cm. There was no heating or furniture. Many of the men were not fed for several days. They were systematically tortured and forced, whilst blindfolded, to fingerprint statements which had been prepared for them. They suffered various forms of torture including electric shock treatment, burning with hot metal bars, beatings, and anal rape with a truncheon and with bottles.

As a result of the walk to Güçlükonak and the conditions of detention there, many of the men suffered severe injuries to their feet, some of which required subsequent amputation of toes or feet. The men at Güçlükonak were moved to Şırnak by helicopter on or about 5 March 1993.

The persons who had been taken directly to Şırnak were also tortured and forced to sign statements. Allegations were put to them that they were members or supporters of the PKK. One man, İbrahim Ekinci, having been tortured, fell ill and was removed to hospital, where he died of pneumonia on 16 March 1993.

On 21 February 1993, military forces returned to Ormaniçi to burn more houses and kill more animals. The women of the village, together with the children, slept in the mosque, in caves, and in some unburned outbuildings. Abide Ekin died in the mosque, without having received medical attention for her injuries. A few days later, another child, Ali Yıldırım, was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on 20 February 1993.

Most of the detained villagers were released either on 9 or 16 March 1993. They appeared before public prosecutors at Eruh (Siirt district) and many complained of the torture that they had suffered. On 30 April 1993 a number of the men were charged with terrorist offences, which were to be tried before the Diyarbakır State Security Court. A number of villagers remained in custody until approximately June 1993. Two villagers, Mehmet Nuri Özkan and Ali Erbek, were still in custody at the time of the oral hearing held in October 1998. Mehmet Nuri Özkan has been released since, but Ali Erbek is currently still in custody.

Both before and at the time of the transfer of the men from Şırnak to Eruh a number were taken to the Mardin and Diyarbakır State Hospitals, where they were placed in the prison wing. After medical treatment, some had parts of their feet amputated. This was the case of Fahrettin Özkan, who was only 13 years old at the material time.

At the time of their release on 9 and 13 March 1993 respectively, the majority of the detained men were taken by bus to Siirt and subsequently to a nearby village. For the most part they returned to Ormaniçi by mule since they were unable to walk. During the period between 9 March 1993 and the summer/autumn of 1993, as they gradually recovered from their injuries, many of the men attempted to rebuild the burnt houses.

In the late summer or autumn of 1993 there was a further incident in Ormaniçi. On this occasion all the villagers were assembled near the school. Two women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them. Some more buildings were also burnt, and further animals died after eating contaminated food. Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land.

A number of other villagers returned to Ormaniçi in the spring of 1994. In or about May 1994 the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby. After that the soldiers arrived in the village indicating that they had killed seven terrorists. In fact four villagers had been killed as well as three alleged members of the PKK. After this incident the villagers were given three days to leave the village, otherwise they would be killed. They all left and moved to various towns in south-east Turkey, including Güçlükonak, Tarsus and Siirt. A number also moved to İstanbul. They have been unable to return to the village since that date. Some have remained in a neighbouring village.

In August 1994 the Government carried out an investigation in Ormaniçi into the events which had taken place there in February 1993. No investigation was carried out into the detention of the villagers in Güçlükonak or Şırnak, notwithstanding the injuries they had suffered whilst in custody. None of the applicants has been offered any compensation for their losses.

While the security forces were approaching the village of Ormaniçi on 20 February 1993 in order to carry out a search in the valley of the Ormaniçi stream, they came under fire from the village.

In the course of the ensuing clash, the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire. No house was deliberately set on fire by members of the security forces involved in the incident. Although some livestock in the village may have died of suffocation caused by smoke, none of the members of the security forces involved deliberately killed any livestock there.

Apart from one soldier who was killed when conducting a search in one of the houses of the village, nobody was injured or killed in Ormaniçi on 20 February 1993.

Those villagers who were subsequently taken into detention were not ill-treated during their detention. The injuries sustained by a number of these villagers, which in the case of four villagers resulted in the amputation of toes, had been caused by frostbite, for which they received medical treatment while in detention.

One of the villagers taken into detention, who suffered from epilepsy, was transferred to hospital while in detention. He subsequently died in hospital of natural causes.

On 31 March 1993 the Eruh public prosecutor issued a decision of lack of jurisdiction in respect of 42 persons who had been taken into detention on 20 February 1993 in the village of Ormaniçi and referred the case to the office of the public prosecutor at the Diyarbakır State Security Court.

On 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued a decision of non-prosecution in respect of 25 Ormaniçi villagers for lack of sufficient evidence of the charges of membership of the PKK or aiding and abetting the PKK. These villagers were consequently released.

As regards the other 17 Ormaniçi villagers, on 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued an indictment committing them to appear before the State Security Court on charges of armed activities on behalf of the PKK, membership of the PKK and/or aiding and abetting the PKK. Although most of these villagers were released at some point in time, the villagers Mehmet Nuri Özkan and Ali Erbek were still in detention in October 1998. In September 1998 the proceedings before the State Security Court in the case were still pending.

On 24 June 1993 the public prosecutor at the Diyarbakır State Security Court took a decision of non-prosecution in relation to the death on 17 March 1993 of İbrahim Ekinci, one of the Ormaniçi villagers taken into detention on 20 February 1993. In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one's fault or influence. It was decided that, unless there were any objections, there were no grounds for instituting proceedings.

The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention. On 12 April 1993 Ayşe Ekinci filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband İbrahim Ekinci, who had died in hospital while in detention.

On 15 August 1994, on the basis of this criminal complaint, the Eruh public prosecutor took a decision of non-prosecution. In his decision it was pointed out that the cause of death found was pneumonia.

After the Commission had communicated the applicants' complaints to the Government, the Turkish Ministry of Justice ordered an investigation into the events of 20 February 1993 in Ormaniçi, including the death of two children in the village.

On 10 August 1994 the Siirt public prosecutor carried out an on-site inspection in Ormaniçi in order to establish whether houses had been demolished and burned and to take statements from applicants. He was accompanied by a civil engineer, who drew up a separate report on the conditions of the houses found in Ormaniçi. Also on 10 August 1994, the Eruh public prosecutor went to Ormaniçi in order to carry out an investigation of the death of two children, Abide Ekin and Ali Yıldırım, in the course of which the two children's remains were disinterred.

On 27 June 1995 the Eruh public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and Ali Yıldırım. In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormaniçi on 20 February 1993. The offence was described as causing the death of two persons by leaving explosive material in the village. According to this decision, the perpetrators – referred to as defendants – were an unspecified number of illegal PKK terrorists. The decision further stated that the case file was to be transmitted to the office of the public prosecutor at the Diyarbakır State Security Court for further proceedings.

On 21 July 1995 the public prosecutor at the Diyarbakır State Security Court decided that the Eruh public prosecutor – in co-operation with the Eruh District Gendarmerie Command, the Siirt Directorate of Security and the Siirt Provincial Gendarmerie Command – was to conduct a further investigation into the deaths of Abide Ekin and Ali Yıldırım and to communicate the results of this investigation to the office of the public prosecutor at the Diyarbakır State Security Court at regular intervals. It appears that such reports were sent on a regular basis. According to the wording of the last report made available, a letter of 3 June 1998 from the Siirt Provincial Directorate of Security to the office of the public prosecutor at the Diyarbakır State Security Court:

“the incident occurred as a result of the activities of the outlawed PKK terrorist organisation and upon the establishment of open [as yet unknown] identities and apprehension of the perpetrators information will be submitted separately”.

No information has been submitted as to the outcome of the investigation conducted by the Siirt public prosecutor into the destruction of houses in Ormaniçi.

Since approximately 1985 serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. By 1996 the violence had claimed the lives of 4,036 civilians and 3,884 members of the security forces. In 1987 ten of the eleven provinces of south-eastern Turkey became the subject of emergency rule.

Two principal decrees relating to the south-eastern region were made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). Decree no. 285 (of 10 July 1987) established a regional governorship of the state of emergency region in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the Decree, all public security forces and the Gendarmerie Public Peace Command were at the disposal of the regional governor. Decree no. 430 (of 16 December 1990) reinforced the powers of the regional governor.

The number of provinces affected by the emergency rule decreased over the period between 1987 and November 2002. The state of emergency in south-east Turkey was fully lifted on 30 November 2002 when the emergency rule ceased to apply to the last two provinces affected by it.

The Turkish Criminal Code (Türk Ceza Kanunu) makes it a criminal offence, inter alia:

– to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);

– to coerce through force or threats (Article 188)

– to issue threats (Article 191)

– to subject someone to torture and ill-treatment (Articles 243 and 245);

– to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450);

– to commit arson (Articles 369, 370, 371, and 372), or aggravated arson if human life is endangered (Article 382);

– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); and

– to damage another's property intentionally (Articles 526 et seq.).

The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). Pursuant to Article 135a of the Turkish Code of Criminal Procedure, evidence obtained by way of torture or ill-treatment is not admissible in criminal proceedings.

If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. An appeal against a conviction of a terrorist offence by a State Security Court lies with the Court of Cassation (Yargitay).

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the relevant local administrative council (for the district or province, depending on the suspect's status). That council will appoint an investigator (muhakik) to conduct the preliminary investigation, on the basis of which the council will decide whether to prosecute. These councils are made up of civil servants, chaired by the governor. If a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. A decision not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.

By virtue of Article 4, paragraph (i), of Legislative Decree no. 285, the 1914 Law on the prosecution of civil servants also applies to members of the security forces who come under the governor's authority.

If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage because of an act of the authorities may file a claim for compensation within one year after the alleged act was committed. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

“All acts or decisions of the authorities shall be subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

However, Article 8 of Legislative Decree no. 430 of 16 December 1990 (see paragraph 44 above) provided:

“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).

However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).

Article 19 of the Turkish Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days... These time-limits may be extended during a state of emergency...

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”

Article 168 of the Turkish Criminal Code reads as follows:

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.”

Article 169 of the Turkish Criminal Code provides:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...”

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half.

Under section 9(a) of Law no. 2845 on procedure in the State Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.

At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the State Security Courts – including those mentioned in paragraph 61 above – any arrested person had to be brought before a judge within fortyeight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively.

Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:

“Compensation shall be paid by the State in respect of all damage sustained by persons

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”

On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:

“1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention.

During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.

The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces.

Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.

To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...”

A descriptive summary of the contents of the Legislative Decrees nos. 424 and 425 was annexed to this notice.

According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkari, Batman and Şırnak.

In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. A descriptive summary of the decree was appended to this letter.

On 5 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms:

“As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.”

On 1 February 2002 the Turkish Government informed the Secretary General that its Notice of Derogation in respect of Article 5 of the Convention had been withdrawn.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) of the Council of Europe has carried out sixteen visits to Turkey between September 1990 and September 2002. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of illtreatment of persons deprived of their liberty, in particular, relating to those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's report on its visit in October 1997 was made public on 23 February 1999 with the authorisation of the Turkish Government.

In a public statement of 15 December 1992, the CPT reported that on its first visit to Turkey in 1990 it had reached the conclusion that torture and other forms of severe ill-treatment were important characteristics of police custody. It noted that the following types of illtreatment had been alleged time and time again - inter alia, Palestinian hanging, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. It emphasised that its medical examinations had disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and a psychological nature. The on-site observations in police establishments had revealed extremely poor material conditions of detention. It stated that on its second visit in 1991 it had found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons had made complaints of similar types of ill-treatment. An increasing number of allegations had been heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims had been found on examination to display marks or conditions consistent with their allegations. The CPT stated that on its third visit (a periodic visit) from 22 November to 3 December 1992 its delegation had been inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. In Ankara police headquarters and Diyarbakır police headquarters, it found equipment which was consistent with use for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.

In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe illtreatment by the police. A considerable number of persons examined by the delegations' forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the Anti-Terror Department at İstanbul Police Headquarters, cases which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. The persons examined showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that recourse to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.

In the CPT report on its visit in October 1997, it noted that the existence and extent of the problem of torture and other forms of ill-treatment of criminal suspects by law-enforcement officials – and, more particularly, by police officers – had been established beyond all doubt in the course of previous CPT visits to Turkey between 1990 and 1996. Further, in recent times, senior political figures had openly recognised the realities of the situation. During the CPT's visit in October 1997, a considerable number of allegations were once again heard of torture and ill-treatment by law-enforcement officials. Those allegations emanated from both ordinary criminal offenders and persons detained in respect of offences falling under the jurisdiction of the State Security Courts. Further, medical evidence of recent ill-treatment by the police was obtained by the CPT delegation.

The CPT further observed that several of the police establishments visited still possessed interrogation rooms of a highly intimidating nature and stressed that facilities of this kind had no place in a modern police service.

In the CPT report on its visit in September 2001, published on 24 April 2002 with the authorisation of the Turkish Government, the CPT expressed concerns about the continued use in the eastern part of Turkey of interrogation rooms with a highly intimidating character, such as those seen in the Anti-Terror Departments at Ağrı, Elazığ, Erzurum and Van Police Headquarters and in Van Provincial Gendarmerie Headquarters. According to the CPT, such oppressive facilities had no place in a modern police service.

The CPT further stated in this report that the findings made in the September 2001 visit indicated that the blindfolding of persons in police/gendarmerie custody remained common practice throughout Turkey and that persons suspected of narcotics or terrorist offences were apparently particularly prone to this practice. It noted that blindfolds were usually applied at the “preliminary questioning” stage prior to the taking of a formal statement, i.e. at the time when ill-treatment was most likely to occur. It could further not be ruled out that blindfolds were also applied at later stages. The CPT had been told by certain persons that they had been obliged to sign statements attributed to them whilst blindfolded. After the CPT delegation had discovered a blindfold in an interrogation room inspected, the delegation was informed by a senior officer that it would be applied to certain suspects undergoing questioning in order to prevent them from seeing the interrogating officers. In its report the CPT stated that it was clear from the information gathered by it over the years that in many, if not most, cases, persons were blindfolded in order to prevent them from being able to identify law-enforcement officials who inflicted ill-treatment upon them. As a result of this practice, legal proceedings against those who tortured and illtreated could be severely hampered.

As regards the medical examination of persons held in custody, as already addressed in considerable detail in previous CPT visit reports, the CPT noted that dialogue with the Turkish authorities on this point had focused on two issues: the principle that law-enforcement officials should not be present during the medical examination, and possible exceptions to that principle; and the need to ensure that doctors carrying out the medical examination used the standard forensic medical form approved by the Turkish authorities. The CPT delegation that carried out the visit in September 2001 found that there remained much room for progress as regards both these issues, in particular in the eastern part of Turkey, where interviews with detained persons suggested that it was very rare for lawenforcement officials not to be present during medical examinations. Numerous persons stated that they had been warned prior to the examination not to say anything to the doctor about the treatment they had received, and that the presence of law-enforcement officials during the examination had ensured that they heeded that warning. Some persons interviewed stated that when the doctor had inquired as to the origin of injuries they bore the law-enforcement official present had protested. Doctors at the Primary Health Care Centre in Elazığ acknowledged that the examination always took place in the presence of police officers or members of the gendarmerie. In discussion with doctors at Van State Hospital, it was indicated that it was common for two or more persons to be examined simultaneously and that lesions observed might not be recorded “in order to avoid problems with the police”. The CPT further concluded that it was clear that, instead of using the “General Judicial Medical Examination Form” approved by the Turkish authorities, the old practice of very brief findings set out on a piece of paper without any headings, and often covering several detained persons, remained common.

Reiterating that no legal safeguard against ill-treatment was more fundamental than the requirement that the fact of a person's deprivation of liberty be recorded without delay, the CPT indicated in its report that the current practice concerning the recording of detention required improvements in certain respects. It appeared that the trigger for making an entry in the book of admissions was the fact of placing someone in a cell. As a person could be deprived of his liberty for several hours in a lawenforcement establishment before being placed in a cell, this initial period of detention often appeared to go unrecorded.

In the preliminary observations made by the CPT delegation on its visit carried out in March 2002, it was noted that prison staff were still present during medical examinations. The CPT delegation further indicated that it had gathered compelling evidence of severe ill-treatment of several persons held by the gendarmerie in Diyarbakır in late 2001. This illtreatment had apparently begun during the initial period of custody and had continued during the period spent in the custody of the gendarmerie. The delegates' visit to the Provincial Gendarmerie Command, where the illtreatment was said to have occurred, reinforced the credibility of the allegations made. It was of an oppressive and intimidating nature, not unlike the facilities criticised in the CPT report on its September 2001 visit.

The CPT delegates further discovered that, in Diyarbakır, lawenforcement officials were systematically present when suspects were medically examined at the outset and at the end of their custody. Many prisoners interviewed told the CPT delegates that they had been warned not to make any complaints to the doctor about how they had been treated, and that the presence of law-enforcement officials had deterred them from making complaints. Some doctors spoken to indicated that, despite their objections, law-enforcement officials had been present during medical examinations. Moreover, some doctors mentioned cases in which reports which they had drawn up recording injuries had been torn up by law-enforcement officials.


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant, Ms Julieta Saviţchi, is a Moldovan national who was born in 1970 and lives in Chişinău. She is a journalist.

On 2 October 1999 the Russian language newspaper “The New Order” published an article entitled “Traffic Police – My Star” signed by the applicant. The article stated inter alia that:

“...This is quite a banal story for us regular citizens, and a normal phenomenon for the traffic inspectors. In any event, it serves as a good example of the ‘star syndrome’ suffered by the traffic inspectors.

A person was driving his Moskvitch on Stefan cel Mare Street. Let us call him ‘Victor’. When he approached the Stefan cel Mare and Tighina crossroads, the traffic lights turned red and, like any normal person, Victor pressed the brakes. But people who abide by the rules are not always lucky. A luxurious speeding Opel ran into the old Moskvitch. Both cars were damaged, but the Moskvitch was damaged more. Victor stayed at the place of the accident, as any man believing in the strictness of the law would do, awaiting the arrival of the police and their wise and fair verdict. The owner of the ‘Opel’ though, aware of his guilt, hit the gas and disappeared.

Before long a Sergeant of the traffic police arrived and began to take measurements and investigate, making notes in a note book. At the height of the investigation the owner of the Opel arrived, but without his car. He waited until the policeman finished his work, and then said that he would go to the Municipal Traffic Police Centre to solve the problem.

At the Municipal Traffic Police Centre the two car owners and the policeman were received by a person of a venerable age with the epaulets of a Sergeant-Major (later we found out that he worked in the emergency department). The owner of the Opel addressed him in a very friendly way, calling him ‘Jora’. The Sergeant-major Jora approached the young Sergeant, who investigated the accident, and asked him in a way more like an order than a question: ‘How many years have you been working for the Traffic Police?’ – Two years... ‘But I worked for twenty years; therefore you should listen to me. Don’t write anything, let the people come to an agreement themselves and the guilty one (i.e. the owner of the Opel) pay to the second one approximately 30 Moldovan Lei (MDL). In any event his car is a flea-pit, and there is no need to make a lot of fuss.’

The owner of the ‘flea-pit’, who cannot be considered a wealthy man, almost lost the power of speech when he heard that. How was it possible to offer him such a petty sum for his severely damaged car? Since the victim would not agree, Sergeant-Major Jora and the owner of the Opel increased somewhat the amount, bargaining for each leu. Afraid that he would not get anything, Victor agreed to the sum of MDL 75. He later had his car fixed by some acquaintances, who laughed at him for being fooled like a boy. Victor spent a little bit more than MDL 200 for the repair – a sum that might seem ridiculous to some traffic inspectors. For Victor though, this is really big money. But it is not the money, that he’s worried about, but the way he was treated at the Traffic Police Centre, in particular this Sergeant-Major Jora, who treated him as a man from the lowest strata, almost as a nonentity. After a few days Victor went to Jora and asked for his driver’s licence back. The Sergeant-Major promised to return the driver’s licence, but only on condition that Victor paid a fine of MDL 18. Victor was dumbfounded. – ‘Why should I pay a fine? What did I do?’ The Sergeant-Major, answered very furiously: ‘Once I say that you should pay, then you should pay, without asking any questions.’

Victor, who was very upset about the absurdity of the situation, warned the policeman that he would complain to his superiors. The Sergeant-Major, understanding that there was no way for him to prevail, literally went ballistic. He threw the driver’s licence in Victor’s face, shouting like a madman.

- ‘He would complain! Who are you? Take your documents and get out of here, and pray God not to come back to the Traffic Police, because otherwise you’ll get into big trouble.’

The man took his driver’s licence and left the Police Station, meditating on what Jora could possibly do to him if ever he came back...”

On an unspecified date in 1999 a policeman named G.R. lodged a civil action for defamation against the applicant and the publishing office of the newspaper with the Centru District Court. Relying on Articles 7 and 7/1 of the Civil Code, the complainant alleged that the article contained statements which were defamatory of him.

Between January and March 2000 several oral hearings were held and several witnesses were heard. The applicant and the newspaper stated that the facts presented in the article were a simple reproduction of the story told by Victor, the victim of the road accident. Victor gave evidence to that effect. They further stated that the information contained in the article was not of a defamatory nature and could not harm in any way the reputation of the complainant, particularly since it did not contain his full name, but only a diminutive of his first name.

By its judgment of 14 March 2000, the Centru District Court found that the information contained in the article was defamatory of G.R. and did not correspond to reality. It argued that in the emergency department of the Municipal Traffic Police there was only one Sergeant-Major Jora, and that he was therefore easily identifiable. In particular, the court quoted the following extracts from the article as being defamatory:

“...this sergeant-major Jora, who treated him as a man from the lowest strata, almost as a nonentity.”

The court found that this statement conveyed the idea “that ‘Jora’ was a policeman who could not behave with other people, and who was not a very positive person”.

“The sergeant-major, promised to return the driver’s licence, but only on condition that Victor paid a fine of MDL 18.”

The court found that this statement did not correspond to reality since Victor forgot to take his driving licence. Moreover, Victor could not prove that he was requested to pay a fine.

“He threw the driver’s licence in Victor’s face, shouting like a madman.”

“Take your documents and get out of here, and pray God not to come back to the Traffic Police, because otherwise you’ll get into big trouble.”

The court found that these statements were defamatory of G.R. since they characterised him as a brutal, menacing and vindictive person. Moreover, the applicant did not bring any evidence in support of these statements. The court did not make any note of Victor’s testimony in its judgment.

The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damages of MDL 180 (the equivalent of 14.4 euros (EUR) at the time) and MDL 1,800 (the equivalent of EUR 147 at the time) respectively. It also ordered them to publish a denial of the above statements.

Only the newspaper appealed against this judgment. The applicant lodged a request submitting that she fully agreed with the appeal and that she subscribed to it.

On 30 May 2000 the Chişinău Regional Court dismissed the appeal on the ground that the applicant had not proved the truth of her statements.

The newspaper lodged an appeal in cassation against the judgment of the Regional Court. The applicant neither lodged an appeal in cassation nor subscribed to the one lodged by the newspaper.

On 24 October 2000 the Court of Appeal upheld the appeal in cassation and quashed the judgments of the Centru District Court and of the Chişinău Regional Court in respect of both the newspaper and the applicant. It issued a new judgment, in which it found in favour of G.R.. In its judgment the court found that only the following statements were defamatory and did not correspond to reality:

“He threw the driver’s licence in Novac’s face, shouting like a madman.” (Бросил Новаку водительские права в лицо, крича как помешанный)

It ordered the newspaper to publish a denial of the above statements within fifteen days. It ordered the applicant and the newspaper to pay the complainant non-pecuniary damages of MDL 180 and MDL 1,800 respectively. It also ordered both the applicant and the newspaper to pay the court fees of MDL 90.

The relevant provisions of the Civil Code in force at the material time read:

Article 7. Protection of honour and dignity

“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.

(2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same rubric, on the same page or in the same programme or series of broadcasts.”

Article 7/1. Compensation for moral damage

“(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court.

(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 minimum wages if the information has been circulated by a legal person and between 10 and 100 if the information has been circulated by a natural person.”


The applicant is a Turkish national, born in Yeşilhisar and living in Kayseri, Turkey.

A. Circumstances of the case

The applicant was formerly a public prosecutor. In 1993 he wrote a letter to the Minister of Interior criticising him as well as a political party forming part of the coalition government for, inter alia, the continuation of the terrorist campaign. He stated that the party in question had been elected on the backs of the terrorists. Furthermore he criticised a number of new amendments made to the law on criminal procedure which were intended to increase the rights of the accused. The applicant repeated the same views and opinions in a book which he published.

On 9 June 1994 the Supreme Board of Judges and Public Prosecutors (Hakimler ve Savcılar Yüksek Kurulu : “the Supreme Board”) held that his statements were highly political and incompatible with the objectivity required by his functions. The Supreme Board transferred him to a lesser jurisdiction for disciplinary reasons.

The applicant requested the Supreme Board to rectify (“yeniden inceleme”) its decision. On 15 February 1994 his request was rejected. The applicant then raised an objection (“itiraz”) to the decision before the Objections Examination Board (İtirazları İnceleme Kurulu: “the Objections Board”). On 16 March 1995 the Objections Board upheld the Supreme Board’s decision.

On several occasions in 1994 the applicant made oral comments to his colleagues or published poems expressing his disapproval of the activities of the above-mentioned political party. He gave a television interview in which he criticised the Supreme Board’s decision to transfer him as well as the Board’s structure.

On 9 March 1995 the Supreme Board again ruled that the applicant’s statements and conduct were highly political and incompatible with the objectivity requirements of his office. The Supreme Board found, inter alia, that the applicant had been behaving “like a professional politician”. The Supreme Board also found that the applicant had spent his sick leave in a distant locality without prior permission. On the basis of these two grounds the Supreme Board again transferred the applicant to a lesser jurisdiction for disciplinary reasons. The applicant requested the Supreme Board to rectify this decision. On 20 April 1995 his request was rejected. The applicant then raised an objection to the initial decision with the Objections Board. On 25 September 1995 the Objections Board upheld the decision.

Subsequently the Supreme Board noted that the applicant had been given two disciplinary punishments. It held on 29 February 1996 that, in accordance with section 69 § 2 of Law no. 2802, the applicant should be removed from office. The applicant requested the Supreme Board to rectify this decision. In the meantime, on 3 April 1996, the applicant resigned from his functions.

On 23 September 1996 the Supreme Board re-examined the applicant’s disciplinary file and upheld the decision of 29 February 1996. The applicant raised objection to the decision of the Supreme Board. In his petition of 5 May 1997 to the Objections Board the applicant wrote inter alia that he had voluntarily (“kendi isteğimle”) resigned and requested that the administrative punishment (removal from office) be, at least, converted to a lighter form of punishment. The applicant was heard in person by the Objections Board on 5 May 1997. On the same day the Objections Board ruled that the Supreme Board’s decision of 29 February 1996 was taken in accordance with the law.

B. Relevant domestic law

According to Article 68(b) of the Code on Judges and Public Prosecutors, conduct of a judge or public prosecutor which is considered incompatible with the impartiality requirements of his functions renders him liable to be transferred to a lesser jurisdiction.

According to Article 69 of the Code, any judge or public prosecutor who has been sanctioned for disciplinary reasons on two occasions by being transferred to a lesser jurisdiction shall be liable to be removed form office.


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1968 and lives in Vienna. He is the owner and managing director of M, a building company.

On 10 October 1997 a worker employed by the M company mounted a scaffold (which was owned, however, by another building firm) at one of the company’s building sites at M. Street in Vienna. He fell and died a few days later.

Subsequently the Vienna District Public Prosecutor (Bezirksanwalt) started preliminary inquiries (Vorerhebungen) against the applicant on suspicion of having caused death by negligence (fahrlässige Tötung), an offence under Article 80 of the Criminal Code. On 27 March 1998 he discontinued the inquiries.

On 31 March 1998 the Vienna Municipality issued a penal order (Straferkenntnis) against the applicant as manager of the M company, imposing a fine for an administrative offence under section 130(1), no. 16, of the Industrial Safety Act (Arbeitnehmerschutzgesetz) read in conjunction with several provisions of the Construction Worker Safety Regulations (Bauarbeiterschutzverordnung). It found that the applicant had disregarded the duties of an employer concerning the properties, conditions, use, inspection or maintenance of equipment (Verpflichtungen betreffend die Beschaffenheit, die Aufstellung, die Benutzung, die Prüfung oder die Wartung von Arbeitsmitteln) as, on 10 October 1997, a scaffold used at the building site at M. Street, Vienna, had lacked protective barriers on three sides at head, chest and foot level and the protective barriers on the fourth side had not been properly secured.

On 31 March 1998 the applicant, assisted by counsel, appealed to the Vienna Independent Administrative Panel (“the IAP” – Unabhängiger Verwaltungssenat). He submitted that at the building site at M. Street in Vienna 25 scaffolds owned by different construction companies had been in use. While the one belonging to the M company had all the necessary protective elements, the defective scaffold used by the employees of the M company, which had led to the industrial accident, was owned by another company. On 29 May 2000 the applicant submitted further that the IAP should quash the penal order as the administrative criminal proceedings had been conducted in breach of the principle of ne bis in idem.

On 20 June 2000 the IAP quashed the penal order of 31 March 1998. Referring to the Constitutional Court’s case-law on Article 4 of Protocol No. 7, the IAP found that criminal proceedings for causing death by negligence under Article 80 of the Criminal Code and proceedings under section 130(1), no. 16, of the Industrial Safety Act, read in conjunction with the Construction Worker Safety Regulations, concerned essentially the same conduct as in both cases the authorities and courts had to examine whether the provisions for the protection of construction workers had been complied with. In such circumstances, the person responsible for compliance with these rules was also criminally liable under Article 80 of the Criminal Code in the event of an accident at work leading to the death of the victim. Therefore the IAP was prevented from conducting administrative criminal proceedings against the applicant even though finally the District Public Prosecutor had discontinued his inquiries into the charge of causing death by negligence against the applicant.

On 25 August 2000 the Federal Minister for Economy and Labour (Bundesminister für Wirtschaft und Arbeit) filed a complaint with the Administrative Court against the IAP’s decision. The Federal Minister pointed to the Constitutional Court’s case-law, according to which a conviction under Article 80 of the Criminal Code concerned essentially the same punishable conduct as the offence under section 130(1), no. 16, of the Industrial Safety Act. Thus, to conduct two sets of criminal proceedings concerning these offences would be in breach of Article 4 of Protocol No. 7. The IAP had, however, overlooked the fact that in the present case no proceedings had been conducted against the applicant before a criminal court. The inquiries by the District Public Prosecutor, an employee of the Public Prosecutor’s Office, had the purpose of verifying whether or not a charge should be brought against a person and whether proper criminal proceedings should be opened. As a result the District Public Prosecutor had discontinued the preliminary inquiries since he had not found sufficient reasons to prosecute the applicant. That being so, it could not be said that an act had been committed which fell within the scope of Article 80 of the Criminal Code. The ne bis in idem principle did not therefore apply.

On 26 April 2002 the Administrative Court quashed the IAP’s decision of 20 June 2000. The Administrative Court found that the ne bis in idem principle was not at stake if a public prosecutor discontinued preliminary inquiries on a criminal information pursuant to Article 90 of the Code of Criminal Procedure, as in such a case the public prosecutor – either immediately or after conducting inquiries – arrived at the conclusion that the criminal information was unfounded, and that the act to which it referred was not punishable or did not justify prosecution. Such a case must be distinguished from the material facts in the Constitutional Court’s decision to which the IAP had referred, as that case had not concerned the termination of investigations under Article 90 of the Code of Criminal Procedure.

On 11 February 2003 the IAP gave a fresh decision on the applicant’s appeal and this time upheld the Municipality’s penal order after having held oral hearings on 16 October and 13 December 2002. The IAP noted that the workers present at the building site had used a scaffold belonging to another building company. The applicant, as the person responsible, had not installed a properly functioning control system, verifying that the scaffolds and other materials used by the workers complied with safety regulations and that the workers had been trained in complying with these regulations. The applicant had therefore been responsible for the non-compliance with the safety regulations.

On 11 June 2003 the applicant lodged a complaint with the Constitutional Court, alleging, inter alia, that the impugned decision disregarded the principle of ne bis in idem.

On 23 September 2003 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success, and on 19 December 2003 the Administrative Court also declined to deal with the applicant’s complaint for lack of prospect of success in accordance with section 33a of the Administrative Court Act.

Sections 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen).

In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the public prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (Section 88 § 1).

Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she must either request the institution of preliminary investigations or file a formal indictment (Anklageschrift, Strafantrag; Section 90 § 1). Section 91 § 2 provides that preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit the person for trial and prepare the taking of evidence at the trial.

Section 93 § 1 provides that preliminary investigations are in principle conducted by the investigating judge personally and directly.

Section 5 § 1 of the Code of Administrative Offences provides:

“Unless a provision of administrative law states otherwise, negligent behaviour is sufficient to establish guilt. Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence, and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law.”


CASE OF ALEKSANDR LEONIDOVICH IVANOV v. RUSSIA

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in 1981 and is serving a prison term in the Ryazan Region.

The applicant was a student of a State University, which trained law enforcement officers. On 3 March 2001 the applicant was arrested on suspicion of murder. By a judgment of 23 April 2002, the Omsk Regional Court convicted the applicant of theft and murder, and sentenced him to seventeen years' imprisonment. On 10 April 2003 the Supreme Court of the Russian Federation upheld the judgment.

From 5 to 13 March 2001 the applicant was detained in a temporary detention centre in the town of Omsk. From 14 March 2001 to 10 June 2003 the applicant was detained in Omsk remand centre no. 55/1.

According to the applicant, he was kept in the remand centre in cell no. 163 (designed for eight persons) together with at least twenty other inmates. Owing to an insufficient number of beds, they had to sleep in shifts. The cell windows were covered with metal shutters that barred access to natural light and air. In 2003 the applicant was kept in the cell together with eight to ten other persons.

The applicant subsequently indicated that in 2001-02 he had been afforded less than two square metres of living space in the cell. The toilet was not separated from the living area. In the absence of any ventilation, the smell spread into the cell. He also alleged that on the days of court hearings in April 2001 he had to get up at 4 a.m. and was taken back at 8 p.m. without any food or drink.

The applicant was kept in the remand centre from 15 March 2001 to 10 June 2003. The applicant was placed in cell no. 163, which measured twenty-one square metres and had five beds. This cell was assigned to former law enforcement officers, who had to be kept separately from the other (potentially hostile) detainees. With reference to certificates issued in February 2008 by the acting director of the remand centre, the Government stated that this cell had accommodated three to five detainees during the relevant periods. In support of the above, the Government enclosed statements made in 2008 by three officers serving in the remand centre, who confirmed that the above information was correct and that the conditions of the applicant's detention during the relevant periods had been appropriate. The Government also enclosed a statement made in 2008 by a convict who had been detained in cell no. 163 from April to July 2001. This person stated that during that period there had been five beds and only four detainees and that the material conditions had been acceptable. A similar statement was made in 2008 by another detainee who had been kept in that cell from December 2002 to February 2003.

From 30 August to 4 September 2002 the applicant was also kept in cell no. 53, which measured 4.8 square metres and had one bed.

According to the Government, the applicant was provided with an individual bed and bedding in both cells. He had access to a shower once a week. He had daily outdoor walks. The metal shutters on the cell window(s) were aimed at preventing inter-cell communication and did not impede access to natural light. The works for removing the shutters were carried out between November 2002 and March 2003.

On the days when investigative measures were carried out or hearings were held (June 2001 – September 2002), the applicant had had to get up 6 a.m. and was taken back to the cell before 10 p.m. On those days, he had been fed and had also been able to take food bought by him or received from next of kin.

As can be seen from the certificate submitted by the Government, the cell record cards for October 2000 – October 2002 were destroyed on 8 August 2004 after the expiry of the one-year retention period. The registers concerning the population of the remand centre between July 2001 and December 2003 were destroyed on 30 August 2004 after the expiry of the one-year retention period.

The following data is given on one of the certificates submitted by the director of the remand centre. The “maximum design capacity” of the remand centre was 1,025 detainees. Between December 2002 and 2004 the design capacity went up to 1,515 detainees owing to the construction of new buildings. As can be seen from another certificate, in 2001 the remand centre accommodated an average of 2,685 persons (to 2,887 beds); in 2002 the figure was 1,999 persons (to 2,305 beds) and in 2003 there were 1,905 persons (to 2,305 beds).

The applicant complained to the prosecutor's office of the Omsk Region alleging that he had been ill-treated at the temporary detention centre and that his state of health had deteriorated while in detention. On 11 April 2001 the prosecutor's office rejected his complaints as unfounded. By a letter of 18 December 2003, the prosecutor's office rejected the applicant's further complaint concerning conditions of detention and stated, in particular, that his state of health had been satisfactory, except for a slight deterioration of his eyesight.

In February 2004 the applicant complained to the Regional Department for the Execution of Sentences about the allegedly degrading conditions of his detention, referring in particular to the overpopulation in the remand centre and lack of access to natural light and airflow in the cells. By a letter of 2 March 2004, the Penitentiary Office acknowledged the overpopulation problem in “certain cells” in the remand centre in 2001 and 2002 and stated that in 1999 the metal shutters had been partly removed from the cell windows and had been completed removed in March 2003.


The applicants, Mrs Maria Mazurek and Mr Tadeusz Mazurek, are Polish nationals who were born in 1932 and 1927 respectively. They live in Rumia, Poland.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants shared an apartment with a certain married couple, J.K. and U.K. On 2 November 1992 the applicants requested the Gdynia District Court (Sad Rejonowy) to order eviction of J.K. and U.K. (“the defendants”) from the apartment. They claimed that the defendants had no legal title to occupy the premises.

On 2 February 1993 the Gdynia District Court gave judgment, in which it ordered eviction of the defendants from the applicants’ apartment. The judgment became final. On 27 April 1993 the District Court issued a writ of enforcement.

The case was transferred to the Rumia Municipal Office (Urzad Miasta Rumia) which was charged with enforcement of the judgment by providing the defendants with an alternative dwelling (lokal zastepczy).

On 15 January 1997 the applicants lodged with the Gdańsk Governor (Wojewoda) a complaint about the inactivity of the Rumia Municipal Office. The complaint was transferred to the Gdańsk SelfGovernment Board, which ordered the Rumia Municipal Office to submit the applicants’ casefile. Subsequently, the Rumia Municipal Office informed the Gdańsk Self-Government Board that no decision had yet been made in the case.

Following several complaints made by the applicants to the Municipal Office, the MPs and the Ombudsman, on 19 May 1999 the Rumia Mayor informed them that it was not possible to give an exact date when the proceedings would end because the municipality did not have available a sufficient number of alternative dwellings.

On 3 January 2001 the applicants turned to the Pomorskie Governor complaining about the inactivity of the administrative authorities.

On 5 January 2001 the Pomorskie Governor requested the Rumia Mayor to deal with the case as soon as possible.

On 20 February 2001 the Rumia Mayor provided the defendants with an alternative dwelling.

According to the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), enforcement of a final court’s judgment concerning the provision of an alternative dwelling should be dealt by the municipalities in accordance with the provisions of the Code of Administrative Procedure.

Article 35 of the Code of Administrative Procedure lays down timelimits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new timelimit.

Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays.

Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge with the Supreme Administrative Court a complaint about the fact that an administrative authority had failed to issue a decision.

On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed. Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint against inactivity on the part of an authority obliged to issue an administrative decision.

Section 26 of the Law provides:

“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”

Moreover, the Court notes that pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.

Pursuant to section 31 of the Law, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months.

If the authority concerned fails to give a ruling in this respect within this timelimit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court.

Section 34 of the 1995 Act sets out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the abovementioned Article 37 of the Code of Administrative Procedure.


No violation of Art. 6-1 as regards the plea of nullity;Violation of Art. 6-1 as regards the appeal against sentence

On 8 March 1993 the Public Prosecutor's Office at the Feldkirch Regional Court (Landesgericht) filed an indictment charging the applicant with murder. It was alleged that the applicant, in December 1991, had killed his wife and had then buried her decapitated corpse in a field where it had been discovered in May 1992. It was further alleged that he had had a mistress, and had run into financial difficulties as he had rented and furnished an apartment for her and had maintained her, whereas his wife, who had opposed a divorce, had owned the spouses' house and a collection of jewellery of considerable value. In these and the trial proceedings the applicant was represented by official counsel, Mr. A.

On 1 October 1993 the Feldkirch Regional Court, sitting as a Court of Assizes (Geschworenengericht), gave judgment. The jury found the applicant guilty of murder. The court, sitting with the jury, sentenced him to life imprisonment. It considered as aggravating circumstances that the applicant had acted for particularly base motives and had acted cruelly. It found that there were no mitigating circumstances.

On 2 November 1993 the applicant, still represented by Mr. A., filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his plea of nullity he complained about the composition of the court, the court's failure to put alternative questions to the jury and about the lack of reasons for the jury's verdict. He also submitted that there was no factual basis for finding him guilty. In his appeal he complained in particular that the Regional Court's judgment did not give sufficient reasons for the sentence. As to the aggravating circumstances, it was not clear which motives had been established and deemed particularly base. Nor did the judgment mention any facts which would allow the conclusion that he had acted in a cruel manner. As to possible mitigating circumstances, the applicant complained that the Regional Court had failed to take his advanced age and lack of prior convictions into account. The applicant did not request to attend the hearing before the Supreme Court.

On 21 December 1993 the Supreme Court (Oberster Gerichtshof) fixed the hearing date for the applicant's plea of nullity and his appeal for 27 January 1994. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he would not be brought to the court as the conditions of S. 296 § 3 of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. At an unspecified date in the middle of January 1994, the applicant was informed by the Vienna Bar Association that for the purpose of his representation at the hearing before the Supreme Court a new official defence counsel, Mr K., had been appointed as Mr A. would be unable to attend.

On 27 January 1994 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his new official defence counsel, Mr. K., rejected his plea of nullity as well as his appeal. As regards the appeal, the Court found that the applicant had rightly claimed as a mitigating circumstance that he had no prior convictions. Furthermore, cruelty had not been factually established as an aggravating circumstance. However, there was evidential support for the conclusion that the applicant had acted for particularly base motives. Attaching particular weight to this aggravating circumstance, the Supreme Court found that - notwithstanding the aforementioned deficiencies - the sentence of life imprisonment was commensurate with the applicant's guilt.

The first-instance judgment of an assize court may be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 345 § 1 of the Code of Criminal Procedure. The Supreme Court's task is mainly to control the acts of the bench and the presiding judge of the assize court. Its examination includes whether the trial has been conducted in a manner which complies with fundamental procedural principles, whether the right questions have been put and the correct directions given to the jury. The Supreme Court may only verify whether the jury has provided unclear, incomplete or contradictory answers to the questions put to it. The Supreme Court supervises the correct application of the criminal law, but in so doing is bound by the jury's findings of fact.

In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence.

As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure provides:

“1. When the date of the public hearing is being fixed, the accused ... shall be summoned ...

If the accused is under arrest, the notice of the hearing given to him shall mention that he may only appear through counsel. ...”

Section 344 of the Code of Criminal Procedure extends these rules to nullity pleas arising out of jury trials.

However, if the hearing is a combined one on a plea of nullity and an appeal against sentence, an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea.

The sentence as such may be challenged by way of an appeal against sentence. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held.

As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides:

“An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement or otherwise if his personal presence appears necessary in the interests of justice.”


Mr Karlheinz Beer is a German national, born in 1952 and resident in Darmstadt. MrPhilipRegan is a British national, born in 1960 and resident in London in the United Kingdom.

In 1982 the first applicant, a civil engineer by profession and employed by the French company S., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt. The first applicant’s contract was later taken over by the French company T.

The second applicant, a systems programmer and employed by the Italian company T.I., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt in 1991.

The European Space Agency (“ESA”) with headquarters in Paris, formed out of the European Space Research Organisation (“ESRO”) and the European Organisation for the Development and Construction of Space Vehicle Launchers (“ELDO”), was established under the Convention for the Establishment of a European Space Agency (“ESA Convention”) of 30 May 1975 (United Nations Treaty Series 1983, vol. 1297, I – no. 21524). ESA runs the European Space Operations Centre (“ESOC”) as an independent operation in Darmstadt (Agreement concerning the European Space Operations Centre of 1967 – Official Gazette (Bundesgesetzblatt) II no. 3, 18.1.1969).

In October and November 1993 the applicants instituted proceedings before the Darmstadt Labour Court (Arbeitsgericht) against ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz), they had acquired the status of employees of ESA. In his submissions, the second applicant indicated that, by letter of 27 September 1993, his employer T.I. had dismissed him.

In the respective labour court proceedings, ESA relied on its immunity from jurisdiction under Article XV § 2 of the ESA Convention and its Annex I.

On 21 March 1995 the Darmstadt Labour Court, following hearings, declared the applicants’ respective actions inadmissible.

In both decisions, the Labour Court considered that ESA had validly relied on its immunity from jurisdiction. The Labour Court, referring to section 20(2) of the Courts Act (Gerichtsverfassungsgesetz), according to which immunity from jurisdiction could be provided for, inter alia, in international agreements, considered that ESA enjoyed such immunity under Article XV § 2 of the ESA Convention and its Annex I.

In its reasoning, the Labour Court considered in particular that ESA had been established in 1975 as a new and independent international organisation. It therefore rejected the applicants’ argument that ESA was bound by Article 6 § 2 of the Agreement concerning ESOC, which had subjected the former ESRO to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board.

The Labour Court further recalled that the Federal Labour Court (Bundesarbeitsgericht), in a decision of 10 November 1993 in a similar case (file no. 7 AZR 600/92; see the Waite and Kennedy v. Germany judgment of 18 February 1999, to be published in the Court’s official reports, §§ 21-25), had found that the rules in question did not conflict with fundamental principles of German constitutional law.

In view of the decisions taken in the case of Mr Waite and Mr Kennedy, the applicants did not pursue the matter.

In the proceedings instituted by the second applicant against his dismissal by the company T.I. (see paragraph 13 above), a settlement had been reached in the Darmstadt Labour Court on 6 September 1994. According to this settlement, the second applicant’s employment with the company T.I. had terminated on 31 December 1993, and the company T.I. undertook to pay to the second applicant the sum of 22,000 marks (DEM) for loss of job.

Under the terms of an agreement concluded on 20 June 1995 with the first applicant, terminating his contract of employment on 30 June 1995, the company T. undertook to pay to the first applicant the sum of DEM 14,000 for lawyer’s fees incurred in labour court proceedings concerning his dismissal and DEM 305,000 for the loss of his job.

Section 1(1)(1) of the Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz) provides that an employer who, on a commercial basis (gewerbsmäßig), intends to hire out his employees to third persons - hiring employers (Entleiher) - must obtain official permission. Section 1(9)(1) provides that contracts between the hirer-out (Verleiher) and the hiring employer and between the hirer-out and the employee hired out (Leiharbeitnehmer) are void if no official permission has been obtained as required by section1(1)(1). If the contract between a hirer-out and an employee hired out is void under section 1(9)(1), a contract between the hiring employer and the employee hired out is deemed to have been concluded (gilt als zustande gekommen) as from the envisaged start of employment (section1(10)(1)(1)). Section 1(10)(2) further provides for a claim in damages against the hirer-out in respect of any loss suffered as a consequence of having relied on the validity of the contract, except where the employee hired out was aware of the factor rendering the contract void.

Sections 18 to 20 of the German Courts Act (Gerichtsverfassungs-gesetz) regulate immunity from jurisdiction (Exterritorialität) in German court proceedings. Sections18 and19 concern the members of diplomatic and consular missions, and section 20(1) other representatives of States staying in Germany upon the invitation of the German Government. Section20(2) provides that other persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules.

The ESA Convention came into force on 30 October 1980, when ten States, members of ESRO or ELDO, had signed it and had deposited their instruments of ratification or acceptance.

The purpose of ESA is to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems (Article II of the ESA Convention). For the execution of the programmes entrusted to it, the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and, to this end, shall establish and operate such establishments and facilities as are required for its activities (Article VI § 1 (a)).

Article XV regulates the legal status, privileges and immunities of the Agency. According to paragraph 1, the Agency shall have legal personality. Paragraph 2 provides that the Agency, its staff members and experts, and the representatives of its member States, shall enjoy the legal capacity, privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the Agency and the establishments set up in accordance with Article VI shall be concluded between the Agency and the member States on whose territory the headquarters and the establishments are situated (Article VI § 3).

Article XVII concerns the arbitration procedure in case of disputes between two or more member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, and disputes arising out of damage caused by ESA, or involving any other responsibility of ESA (Article XXVI of Annex I), which are not settled by or through the Council.

Article XIX provides that on the date of entry into force of the ESA Convention the Agency shall take over all the rights and obligations of ESRO.

Annex I relates to the privileges and immunities of the Agency.

According to Article I of Annex I, the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings.

Pursuant to Article IV § 1 (a) of Annex I, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency.

Article XXV of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with the Staff Regulations. Moreover, any member State may submit to the International Arbitration Tribunal referred to in Article XVII of the ESA Convention any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency. According to ArticleXXVII of AnnexI, the Agency shall make suitable provision for the satisfactory settlement of disputes arising between the Agency and the Director General, staff members or experts in respect of their conditions of service.

Chapter VIII of the ESA Staff Regulations (Regulations 33 to 41) concerns disputes within ESA. As regards the competence of its Appeals Board, Regulation 33 provides as follows:

“33.1 There shall be set up an Appeals Board, independent of the Agency, to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member, a former staff member or persons entitled under him.

33.2 The Appeals Board shall rescind any decision against which there has been an appeal if the decision is contrary to the Staff Regulations; Rules or Instructions or to the claimant’s terms of appointment or vested rights; and if the claimant’s personal interests are affected.

33.3 The Appeals Board may also order the Agency to repair any damage suffered by the claimant as a result of the decision referred to in paragraph 2 above.

33.4 Should the Agency – or the claimant – maintain that execution of a rescinding decision would raise major difficulties the Appeals Board may, if it considers the argument valid, award compensation to the claimant for the damage he has suffered.

33.5 The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General’s refusal to waive the immunity of the latter.

33.6 The Appeals Board shall also be competent to settle disputes concerning its jurisdiction, as defined in these Regulations, or any question of procedure.”

The Agreement was concluded between the Government of the Federal Republic of Germany and ESRO for the purpose of establishing a European Space Operations Centre, including the European Space Data Centre. Articles 1 to 4 of the Agreement concern the site for construction of the ESOC buildings and related matters.

Part III of the Agreement contains general provisions. Article 6 provides as follows:

“1. Subject to the provisions of the Protocol on Privileges and Immunities of the Organisation and of any complementary Agreement between the Federal Republic of Germany and the Organisation according to Article 30 of that Protocol, the activities of the Organisation in the Federal Republic of Germany shall be governed by German law. If the terms of employment of a staff member of the Organisation are not governed by the Organisation’s staff regulations, then they shall be subject to German laws and regulations.

Disputes between the Organisation and such staff members of the Organisation in the Federal Republic of Germany who are not within the competence of the Organisation’s Appeals Board, shall be subject to German jurisdiction.”