Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2;No violation of Art. 3;Not necessary to examine Art. 6-1;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants were born in 1928, 1955, 1980, 1982, 1984, 1987 and 1994 respectively. The first applicant lives in Diyarbakır and the remainder of the applicants live in Istanbul. The first applicant is the father, the second applicant is the wife and the remainder of the applicants are the children of Adnan Yıldırım, who was killed on 3 June 1994.

On 3 June 1994 at about 4.30 a.m. while Adnan Yıldırım was leaving the casino at the Çınar Hotel in the Yeşilyurt area of Istanbul with his two friends Savaş Buldan and Hacı Karay, seven or eight people wearing bullet-proof vests and carrying firearms approached them. They introduced themselves as police officers and forced the three men into three cars.

The applicants were informed of the incident on that same day. They immediately contacted the Bakırköy public prosecutor and the Yeşilköy police headquarters to find out more about the kidnapping. They were informed that the three persons had not been taken into custody. The same day, the brother of Savaş Buldan filed a complaint with the Bakırköy public prosecutor and complained that his brother and his two friends, Adnan Yıldırım and Hacı Karay, had been abducted by people who had introduced themselves as police officers.

On 3 June 1994 at about 9 p.m. İsmail Taşcan contacted the Yığılca gendarmerie station within the district of Bolu. He informed the gendarmes that he had seen three bodies in an area near the river where he had gone to fish. At about 9.15 p.m. the gendarmerie arrived at the scene. The positions of the bodies were recorded. No documents or other property were found on the bodies which might establish their identities. The corpses were taken to the Health Centre in Yığılca for further examination.

On 4 June 1994 a post mortem examination of Adnan Yıldırım's body was carried out by two doctors in the presence of the Yığılca public prosecutor. In the body examination report, it was noted that there was an ecchymosis measuring 1x1 cm and an abrasion on the surface of the knee cap of the second body that was later identified as that of Adnan Yıldırım. It was further recorded that cyanosis was noted on the front part of the body, left leg upper part, left knee, genitals and the head. It was perceived that rigor mortis was fading. According to the report, when the body was touched, the skin peeled - which was most probably due to its damp condition. One bullet entrance hole on right occipital area and burnt hair caused by a close-range shot and a bullet exit hole behind the right ear (which damaged the tissue, internal tissue and bones) were noted. A wide haematoma on the left eye due to trauma caused by a blunt object, fracture of the nose, and blood from the nostrils to the moustache area were also noticed. No other signs or abnormalities were observed either on the back of the body or the genital area. There were no documents to prove identification, nor were there any valuables or money. On the surface of the right hand and wrist a further ecchymosis measuring 1 cm. in width was noted, which was probably caused when the hands were tied with a rope. The doctors further concluded that as the cause of death was clearly cerebral haemorrhage, there was no need to conduct a classical autopsy. The estimated time of death was given as 10 hours before the autopsy was carried out.

The bullets recovered from the bodies were sent for ballistic examination to the Central Police Forensic Laboratory, which prepared two forensic reports dated 6 and 14 June 1994 respectively. The report dated 14 June 1994 showed that the five spent bullet cases found at the scene of the killing had been discharged by three different pistols. The report concluded that comparisons of the five spent bullet cases with other bullet cases recovered from the scenes of other unknown perpetrator killings since 1985 did not reveal any similarities.

The bullets were then sent to the Gendarmerie Forensic Laboratory which prepared its own report on 17 June 1994. The report stated that comparisons of the five spent bullet cases found at the scene of the killing with other bullet cases recovered from the scenes of other unknown perpetrator killings did not reveal any similarities.

On 4 June 1994 the Yığılca public prosecutor conducted a search of the scene of the crime in the presence of İsmail Taşcan, who had found the bodies. During the examination, a person named Ms Ayşe Araç told the public prosecutor that she had heard a gun shot in the morning of 3 June 1994.

From 4 to 7 June 1994 the Yığılca gendarmerie took statements from twenty-six persons.

On 4 June 1994 the Bakırköy public prosecutor took a statement from Sebahattin Uz, the doorman at the Çınar Hotel. In his statement, Mr Uz explained that when Adnan Yıldırım, Savaş Buldan and Hacı Karay, who were regular customers at the hotel casino, left the hotel around 5 a.m. on 3 June 1994, six or seven persons, who had arrived in two cars, approached them and conducted body searches holding them against the wall. The three persons were then put into a dark-coloured Mercedes car with registration number 34 CK 420. The doorman stated that he had overheard one of the men saying that they were police officers and that they would release the three persons as soon as their statements were taken. The Mercedes was followed by a sports car. The doorman was unable to describe any of the men, since it was dark and he had seen them from a distance.

Also on 4 June 1994 the Bakırköy public prosecutor took the statement of Hüseyin Kılıç, a security guard at the Çınar Hotel. He stated that seven or eight men, wearing waistcoats and carrying weapons, had approached the three men as they walked out the door. They forced the three men into the waiting cars, after having conducted body searches. This witness stated that one of the cars was a sports car.

On 5 June 1994 Serdar Özdemir, a taxi driver waiting at the taxi rank outside the Çınar Hotel, gave his statement to the Bakırköy public prosecutor. He stated that while waiting for customers, he had noticed three persons coming out of the casino. At that very moment, seven or eight men walked towards them, made the three persons face the wall and then searched them. Afterwards, the three were put into the waiting cars. One of the cars was a black-coloured Mercedes 300 SEL. The second car was a cherry-red Hyundai. The witness also recalled that he had seen a third car, a sports car, which was driven away by one of the men wearing a waistcoat. The witness had been unable to see the licence plates of the cars or the faces of these men.

Again on 5 June 1994 the Bakırköy public prosecutor took a statement from another taxi driver, Hüsnü Durmazer. He stated that as he approached the taxi rank outside the hotel, he saw some people forcing three men into a black car.

On 9 June 1994 the Istanbul Security Department established that the car with registration number 34 CK 420 was a burgundy coloured 1987 model BMW and that it belonged to a certain C.P., who resided in Istanbul.

On 18 June 1994 the first applicant, Selim Yıldırım, gave a statement to the police. He stated that his son, Adnan Yıldırım, had been abducted from the Çınar Hotel. He explained that when the Bolu Gendarmerie informed him about the three dead bodies that had been found in Yığılca, he had identified his son's body in the Bolu State Hospital. He asked the authorities to find the perpetrators of this crime.

The preliminary enquiries led the Bakırköy public prosecutor to issue a continuous search warrant on 23 June 1994, which was valid for ten years. The investigation file was forwarded to the Yığılca public prosecutor on 17 March 1995 since the bodies were found within his area of jurisdiction.

As it had not been possible to establish the identities of the perpetrators, on 31 August 1995 the Yığılca public prosecutor issued a permanent search warrant for the perpetrators of the killings, which would remain valid for twenty years pursuant to Article 102 of the Criminal Code. The prosecutor further stated in his report that no evidence had been found during the investigation. Copies of this search warrant were distributed to the Yığılca gendarmerie and the Yığılca police as well as to the Bakırköy public prosecutor in Istanbul so that they could inform the Yığılca public prosecutor if they found the perpetrators. The prosecutor also instructed these authorities to continue carrying out meticulous searches for the perpetrators.

After the Susurluk incident, Hanefi Avcı, who was the Head of Intelligence Branch of Istanbul Police Headquarters at the time, gave a statement to the public prosecutor in connection with the Susurluk incident. In his statement, he referred to the killings of Savaş Buldan, Adnan Yıldırım and Hacı Karay as the work of an illegal group. He further stated that, as that information was based on secret intelligence, he did not have any documents to prove the allegations. He was, however, of the opinion that, if an investigation was carried out into certain sources, it would be possible to find documents to verify the accuracy of these allegations. He was prepared to indicate those issues in respect of which it might be possible to find documents. Among his submissions, which were recorded in a seven-page statement, Mr Avcı stated, inter alia, the following:

“The Gendarmerie and the National Intelligence Service (Milli İstihbarat Teşkilatı, hereinafter MIT) became concerned about the financial assistance being provided to the PKK from certain members of the Kurdish community, which they felt accounted for its increased activity between 1991 and 1993. They did not feel that they had enough evidence to bring charges and consequently some officers from the Police, Gendarmerie and MIT started talking about using different methods of dealing with certain members of the Kurdish community. A special team was formed for this purpose by, inter alia, the Chief of Police, Mehmet Ağar and the Chief of Special Forces, Korkut Eken. This team consisted both of members of the Special Forces and certain civilians, including Yaşar Öz. The activities of this special team were known to other members of the MIT and the Intelligence Branch of the Gendarmerie (the JİTEM). The kidnapping and the killing of Savaş Buldan and his friends formed part of such activities. It was established that these persons were helping the PKK financially. The way they were kidnapped and killed did not bear any resemblance to the activities of a Mafia or other underground organisation known to us. Police identity cards and policing methods were used during the kidnapping of Savaş Buldan and his friends, otherwise it would not have been possible to kidnap them and to kill them as there are checkpoints on the roads along which they would have been stopped. To go through these checkpoints could only have been possible by making use of an official title”.

On 24 March 1997 Hanefi Avcı was interrogated once again in Ankara at the request of the Yığılca public prosecutor. In his statement, he stated that he did not know how and by whom the killings were carried out.

On 11 March 1997 the police officers Ercan Ersoy, Oğuz Yorumaz and Ayhan Çarkın, who were in detention in connection with an investigation into the Susurluk incident, were shown to the eyewitnesses to the abduction, Hüsnü Durmazel and Sabahhattin Uz. However, the eyewitnesses stated that they had not seen these persons before.

The photo-fit drawings of the three abductors made on the basis of the statements of the witnesses were compared with the photographs of Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın at the Criminal Police Laboratory. In the laboratory report, dated 19 March 1997, it was stated that the photo-fits did not have the necessary facial characteristics to make a positive comparison.

The photo-fits were also compared with the photograph of Yaşar Öz, another suspect detained in connection with the Susurluk investigation. The report of the criminal laboratory dated 27 March 1998 concluded that one of the photo-fits bore resemblances to the photograph and that the person in the photo-fit could be Yaşar Öz. Accordingly, on 20 April 1998 the Yığılca Magistrates' Court issued an arrest warrant for Yaşar Öz. On 7 May 1998 Yaşar Öz gave a statement to the public prosecutor. He stated that he was not in Istanbul between 1 April 1994 and October 1994 and that he did not know who had carried out the kidnapping on 3 June 1994. He further stated that he did not fit the description of any of the abductors as he had had a beard at the time of the kidnapping. He explained that this fact could be easily verified because he had given an interview to a local television channel in Milas at around the time of the kidnapping.

On 14 May 1998 the Yığılca Criminal Court rejected the appeal of Yaşar Öz against the decision ordering his arrest for the kidnapping and killing of the applicants' relative and the other two persons. On 29 May 1998 an identity parade was held in the prison where Yaşar Öz was being detained on remand. Both Sebahattin Uz, the doorman at the Çınar Hotel, and Hüsnü Durmazer, the taxi driver who had witnessed the kidnapping on 3 June 1994, stated that Yaşar Öz, who was included in a line-up of ten persons, was not one of the men who had carried out the kidnapping. On 14 July 1998 Ali Osman Sivri was questioned by the public prosecutor. Mr Sivri was a watchman working at the Karadere Forest, which was on the road to the Yedigöller National Park. He referred to his previous statement which he had given on 7 June 1994 and stated that he had only seen a red car stop outside his office in the forest at around 10.30 a.m. on 3 June 1994. One person had left the car and filled a container with water from a fountain. When he was shown pictures of Yaşar Öz, the witness stated that the person he had seen did not look like Yaşar Öz.

On 24 July 1998 the Yığılca public prosecutor took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor sent the investigation file to the Ankara State Security Court which, in the prosecutor's opinion, was the competent court to prosecute Mr Öz.

In the meantime, on 29 September 1998, the Istanbul Security Department wrote to the management of the Çınar Hotel Casino and requested that the video recordings of the security camera for the night of 3 June 1994 be transmitted to them. In reply, on 2 October 1998 the casino management informed the security department that the video recordings were kept for one month and then erased. They further stated that as the casino was closed as of 12 February 1998, all video recordings were deleted.

On 7 October 1998 the public prosecutor attached to the Ankara State Security took a decision of non-jurisdiction in respect of Yaşar Öz. The prosecutor concluded that there was insufficient evidence to suggest that the killings had been carried out by or on behalf of an illegal organisation. He therefore concluded that the State Security Court did not have jurisdiction in this matter. The file was sent to the Düzce public prosecutor, who later transferred the file to the Yığılca public prosecutor.

On 2 November 1998 the Yığılca public prosecutor, noting that Yaşar Öz had been arrested and put on trial for the killings, decided to continue the search for the other perpetrators. The prosecutor also asked the Düzce public prosecutor to charge Yaşar Öz, who, according to the evidence gathered by the Yığılca public prosecutor, was one of the perpetrators of the kidnappings and subsequent killings.

On 16 November 1998 the Düzce public prosecutor filed a bill of indictment with the Düzce Assize Court. The prosecutor alleged that the evidence justified the prosecution of Yaşar Öz for the murder of the applicant's brother and his two friends.

During the proceedings before the Düzce Assize Court, the court took into consideration the indictment which had been submitted to the Istanbul State Security Court on 29 April 1997 and which dealt with Yaşar Öz's role in the Susurluk affair. The Düzce Assize Court noted that, according to this indictment, Mr Öz was a notorious international drugs trafficker who held three official service passports, two of which were in the names of Tarık Ümit and Eşref Çuğdar.

The Düzce Assize Court finally noted that Yaşar Öz's name had been implicated in the Susurluk Report which had concluded that the fight against terrorism had gained momentum in 1993 when Mehmet Ağar was appointed head of the General Police Headquarters in Ankara. According to this Report, there had been a number of unknown perpetrator murders in the area between Izmit, Adapazarı and Bolu after the then prime minister declared publicly that she had in her possession a list containing the names of those businessmen who were supporting the PKK. The Report further stated that the killings of Savaş Buldan, Behçet Cantürk, Vedat Aydın, Medet Serhat Yöş and Metin Can formed part of such activities.

Recalling that Savaş Buldan, Adnan Yıldırım and Hacı Karay had been kidnapped by seven persons and then killed in the area between Izmit, Adapazarı and Bolu, the Düzce Assize Court held that these killings resembled the above-mentioned killings in the same area. Considering that the defendant was already facing prosecution before another court for membership of an organisation which was allegedly responsible for killing persons who had much in common with the deceased persons in the present case and as there was no other evidence to suggest that these killings were carried out for personal reasons, the Düzce Assize Court concluded on 24 November 1998 that it was precluded from examining the merits of the case for reasons of jurisdiction.

The case file was transferred to the Ankara State Security Court which had jurisdiction to deal with cases involving organised crime. On 16 December 1998 the court concluded that it too did not have jurisdiction to deal with the case. It held that, according to the Düzce public prosecutor's indictment of 16 November 1998, Yaşar Öz was charged with multiple murders. The indictment had made no reference to organised crime and the court did not have jurisdiction to examine this allegation ex officio. The case file was sent to the Court of Cassation in order to resolve the dispute over jurisdiction.

On 25 February 1999 the Fifth Criminal Chamber of the Court of Cassation, upholding the decision of the Ankara State Security Court, ruled that the Düzce Assize Court had jurisdiction to deal with the case.

Seven hearings were held before the Düzce Assize Court in the course of the criminal proceedings against Yaşar Öz. The applicants joined the proceedings as a civil party. Yaşar Öz told the court that there was no evidence to link him to the killings and that the only reason for putting him on trial was to prove to the European courts that the killings were being investigated. Nineteen eyewitnesses, who had either seen the three men being put into the cars outside the hotel in Istanbul or had seen the three cars near the spot where these persons were killed, stated during the hearings that they had never seen Yaşar Öz before.

On 18 November 1999 the Düzce Assize Court acquitted Yaşar Öz of the charge of multiple murders due to lack of evidence. On 25 May 2001 the Court of Cassation upheld this decision.

The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, may be listed as follows.

(i) Scene of incident report, dated 3 June 1994, prepared by the District Gendarme Commander.

(ii) Second scene of incident report, dated 4 June 1994, prepared by the District Gendarme Commander.

(iii) Sketch of the scene of incident drawn by District Gendarme Commander, dated 4 June 1994.

(iv) Decision of the Yığılca public prosecutor for a continuous search warrant, dated 31 August 1995.

(v) A further scene of incident report, dated 4 June 1996, prepared by the Yığılca public prosecutor.

(vi) Further statement of Ayşe Araç, dated 4 June 1996, who allegedly heard gun shots on the day of the incident.

(vii) A further sketch of incident, dated 4 June 1996, prepared by the Yığılca public prosecutor's office.

(viii) An expert report, dated 6 June 1996, stating that from the point where the witness, Ayşe Araç, had been standing on the day of the incident it was probable that she might have heard gun shots.

(ix) The letter of the Ministry of Justice International Law and Foreign Affairs Directorate, dated 3 June 1996, to the Düzce public prosecutor's office.

(x) Periodic follow-up reports (thirty one in all) of gendarmes between 1998 and 2004.

(xi) Bakırköy public prosecutor's decision to transfer the case file to Yığılca public prosecutor's office, dated 17 March 1995.

(xii) Report of the Istanbul Security Department to the Yeşilköy police, dated 15 November 1996.

(xiii) Report of identity parade, in which it is indicated that Ercan Ersoy, Oğuz Yorulmaz and Ayhan Çarkın were shown to two eyewitnesses to the kidnapping, Mr Sebahattin Uz and Hüsnü Durmazel, and that no similarities with the perpetrators had been noted.

(xiv) Letter of Çınar Hotel Casino Management to the Istanbul Security Directorate, dated 2 October 1998.

(xv) Decision of the Yığılca public prosecutor to continue searching for the perpetrators of the killings, dated 2 November 1998.

(i) Statements of Sabahattin Uz, doorman of the Çınar Hotel, dated 4 June 1994 and 10 March 1997 respectively, taken by the Bakırköy public prosecutor's office.

(ii) Statement of Hüseyin Kılıç, security guard of the Çınar hotel, dated 4 June 1994, taken by the Bakırköy public prosecutor's office.

(iii) Statement of Serdar Özdemir, dated 5 June 1994, taken by the Bakırköy public prosecutor's office.

(iv) Statements of Hüsnü Durmazer, dated 5 June 1994 and 10 March 1997 respectively, taken by the Bakırköy public prosecutor's office.

(v) Statement of İsmail Taşcan, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.

(vi) Statements of Ayşe Araç, a villager, dated 6 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(vii) Statement of Bengül Ünsal, a student, dated 4 June 1994, taken by Yığılca District Gendarmerie.

(viii) Statement of Nuriye Cesur, a student, dated 4 June 1994, taken by the Yığılca District Gendarmerie.

(ix) Statements of Ayşe Uzun, a villager, dated 4 June 1994 and 6 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(x) Statement of Hazım Yıldız, driver of the school bus, dated 4 June 1994, taken by the Yığılca District Gendarmerie.

(xi) Statements of Mehmet Baş, a villager, dated 4 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xii) Statements of Seyfettin Çakmak, a villager, dated 4 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xiii) Statement of Fevzi Aydın Aslan, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xiv) Statement of Bayram Yılmaz, a villager, dated 4 June 1994, taken by the Yığılca District Gendarmerie.

(xv) Statements of İrfan Kurşunlu, a villager, dated 4 June 1994 and 4 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xvi) Statements of Hasan Baş, a villager, dated 4 June 1994 and 6 June 1994 taken by theYığılca District Gendarmerie and the public prosecutor respectively.

(xvii) Statements of Mehmet Beşir Erdoğan, a villager, dated 4 June 1994 and 22 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xviii) Statement of Mehmet Yıldız, a villager, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xix) Statements of Şevket Öztürk, a villager, dated 6 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xx) Statements of Yunus Öztürk, dated 6 June 1994 and 14 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xxi) Statement of Ruhi Aldal, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxii) Statement of Halit Sivri, who works at the Yedigölller national park, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxiii) Statement of Fikret Gürez, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxiv) Statement of Hasan Salcı, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxv) Statement of Kamil Çolak, dated 6 June 1994, taken by the Yığılca Ditrict Gendarmerie.

(xxvi) Statements of Muzaffer Yıldız, dated 6 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the prosecutor.

(xxvii) Statement of Mehmet Yıldız, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxviii) Statement of İsmail Topcan, dated 6 June 1994, taken by the Yığılca District Gendarmerie.

(xxix) Statement of İlyas Topuz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.

(xxx) Statements of Hasan Topuz, dated 7 June 1994 and 21 June 1996, taken by the Yığılca Gendarmerie and the public prosecutor respectively.

(xxxi) Statement of Şükrü Bayram Yılmaz, dated 7 June 1994, taken by the Yığılca District Gendarmerie.

(xxxii) Statement of Fevzi Aydın, dated 7 June 1994, taken by the Yığılca District Gendarmerie.

(xxxiii) Statement of Ali Osman Sivri, dated 7 June 1994, taken by the Yığılca District Gendarmerie.

(xxxiv) Statements of Bahar Yıldırım, dated 7 June 1994 and 12 June 1996, taken by the Yığılca District Gendarmerie and the public prosecutor respectively.

(xxxv) Statement of Bengü Çelebi, dated 6 June 1996, taken by the Yığılca District Gendarmerie.

(xxxvi) Statement of Nihat Buldan, the brother of Savaş Buldan, dated 21 June 1994, taken by the Yığılca District Gendarmerie.

(xxxvii) Statement of Arif Karay, the brother of Hacı Karay, dated 18 June 1994, taken by the police.

(xxxviii) Statement of Selim Yıldırım, dated 18 June 1994, taken by the police.

(i) Body examination report, dated 4 June 1994.

(ii) Photo-fits of three of the perpetrators.

(iii) Ballistics examination reports, dated 6 and 14 June 1994, prepared by Central Police Forensic Laboratory.

(iv) Ballistics report dated 17 June 1994, prepared by Gendarmerie Forensic Laboratory.

(v) Ballistics examination report dated 10 January 1995, prepared by the Central Police Forensic Laboratory.

(vi) Ballistics examination report of the Gendarmerie Forensic Laboratory, dated 15 January 1997.

(vii) Report of Central Police Laboratory dated 19 March 1997, comparing the photo-fits of the perpetrators to Ercan Ersoy, Oguz Yorulmaz and Ayhan Çarkın.

(i) Statement of Korkut Eken, Head of Special Operations team, dated 11 March 1997.

(ii) Statements of Hanefi Avcı, dated 7 February 1997, 24 March 1997, and 20 April 1998 concerning the Susurluk incident.

(iii) Report of the Central Police Laboratory indicating that the photo-fits of the perpetrators had similarities with the photo of Yaşar Öz.

(iv) Statement of Yaşar Öz, dated 7 May 1998.

(v) Report of identity parade, dated 29 May 1995, which indicates that although Yaşar Öz had been shown to two eye witnesses to the kidnapping, Mr Sabahattin Uz and Hüsnü Durmazer, the witnesses concluded that they had not seen Yaşar Öz before.

(vi) Decision of non-jurisdiction, delivered by the Yığılca public prosecutor concerning the prosecution of Yaşar Öz, dated 7 March 1998. The file was transferred to Ankara State Security Court.

(vii) Non-jurisdiction decision of the Ankara State Security Court, dated 7 October 1998.

(viii) Non-jurisdiction decision of Düzce Assize Court, dated 24 November 1998, and transfer of case file to the Ankara State Security Court.

(ix) Non-jurisdiction decision of Ankara State Security Court, dated 16 December 1998. The case was sent to the Court of Cassation to settle the dispute on jurisdiction.

(x) Decision of the Court of Cassation, dated 25 February 1999, settling the dispute over jurisdiction between the Ankara State Security Court and the Düzce Assize Court. The case file was sent to Düzce Assize Court.

(xi) Minutes of the criminal proceedings against Yaşar Öz before the Düzce Assize Court.

(xii) Decision of the Düzce Assize Court, dated 18 November 1999, by which Yaşar Öz was acquitted of the charges against him due to lack of evidence.

(xiii) Judgment of the Court of Cassation, dated 25 May 2001, upholding the decision of the Düzce Assize Court dated 18 November 1999.

The applicants submitted a copy of the so-called “Susurluk Report”, which was produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.

The introduction states that the Report was not based on a judicial investigation and did not constitute a formal investigation report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.

The Report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. In the Report, reference is made to the killing of the applicant's brother:

“All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter represented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. (page 74).”

The Report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police force outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken.

For the relevant domestic law and background information on the Susurluk Report, the Court refers to the judgments of Ülkü Ekinci v. Turkey (no. 27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no. 27244/95, §§ 115-22, 9 May 2003).


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The first applicant was born in 1922 and died in 2006. The other two applicants were born in 1948 and 1946 respectively and live in Bucharest.

In 1950, Apartments nos. 203 and 215 situated in Bucharest, Vasile Conta no. 7-9, the property of B.M., were seized by the State under Decree no. 92/1950 on nationalisation. B.M. was S.D.’s stepfather, S.D. being the husband of the first applicant and the father of the other two applicants.

In 1994 S.D. together with his brother B.R. sought to have the seizure declared null and void and to recover ownership of the two apartments.

On 8 February 1995 the Bucharest Court of First Instance allowed the action by S.D. and ordered restitutio in integrum of the two apartments. However, on the basis of an inheritance certificate, it held that B.R. had no standing in the proceedings.

An appeal by the authorities was dismissed on 20 November 1995 by the Bucharest County Court, which considered the seizure as being unlawful. That judgment became final.

On 12 May 1997, at the request of S.D., the Bucharest Town Council, having regard to the fact that the judgment of 8 February 1995 had become enforceable, ordered the restitution of Apartments 203 and 215.

Although S.D. had secured judicial recognition of his property right, he was not able to recover possession of those apartments because the State had sold them on 23 December 1996 and 13 January 1997 respectively to the then tenants, under Law no. 112/1995.

In 1998 S.D. lodged two requests to have the sales by the State declared null and void. S.D. died in 2000 and the applicants continued the proceedings.

On 7 February 2001 the Bucharest Court of Appeal, by a final decision, dismissed the action regarding Apartment 215, considering that the sale had complied with the provisions of Law no. 112/1995 and that the former tenants had made the purchase in good faith.

On 13 August 2001 the applicants applied to the administrative authorities for restitution of Apartment 215 under Law no. 10/2001 governing immovable property wrongfully seized by the State. By a letter of 12 April 2006 the Town Council informed the Agent of the Government that the file was incomplete as it lacked some of the necessary documents.

On 12 December 2002 the Court of Appeal, by a final decision, upheld the other action lodged by S.D. in 1998 and declared the sale of Apartment 203 null and void.

On 22 February 2008 the Bucharest Court of First Instance allowed a request by the second and third applicants to have the former tenants of Apartment 203 evicted from that apartment.

On 4 December 2008 the Bucharest County Court dismissed an appeal by the former tenants. The latter lodged a further appeal on points of law. The proceedings are still pending.

On 20 September 1999 the Bucharest Town Council, at the request of the former tenants of Apartment 203, sought the revision of the judgment of 8 February 1995 (cerere de revizuire), on the basis of alleged new documents attesting the lawfulness of the 1950 nationalisation. The former tenants also intervened in the proceedings.

The Bucharest Court of Appeal dismissed that request as being out of time, by a final decision of 20 September 2001.

On 12 June 2002 the Town Council again sought to have that judgment revised, following a request by the same former tenants of Apartment 203, alleging that there were new documents proving that S.D. was not the only heir of B.M. The former tenants intervened in the proceedings.

On 20 November 2002 the Bucharest Court of First Instance dismissed the action as being out of time. There is nothing in the file to say that an appeal was lodged against that judgment.

On 22 November 2002, at the request of the former tenants, the Prosecutor’s Office attached to the Bucharest Court of First Instance brought proceedings to have that judgment revised, on the basis of an inheritance certificate from 1958, considered to be a new document attesting that S.D. was not the only heir.

On 31 January 2003 the Bucharest Court of First Instance found that request inadmissible, since that certificate could have been obtained by the authorities, which were defendants in those proceedings, with minimum diligence.

The prosecutor, the town council and the former tenants of Apartment 203 appealed. Eventually, on 14 February 2006 the Bucharest County Court dismissed their appeals as groundless or for lack of interest.

All the parties lodged a further appeal on points of law. According to the documents in the file, the proceedings are still pending.

On 27 April 2005 the Bucharest Town Council made a fresh attempt, at the request of the same former tenants who had intervened in the proceedings, to have the judgment of 8 February 1995 revised. The former tenants informed the Town Council that the prosecutor had found that the signatures on the 1994 application form (see paragraph 6 above) were forged, since they belonged to the plaintiffs’ lawyer, although it had been alleged that they belonged to the plaintiffs themselves. However, the prosecutor acknowledged that the lawyer’s criminal responsibility had become time-barred.

On 30 September 2005 the Bucharest Court of First Instance upheld the action and declared null and void the action introduced by those plaintiffs in 1994, for lack of a valid signature.

On 18 January 2006 the Bucharest County Court considered an appeal by the applicants as being out of time.

On 6 November 2006 the Bucharest Court of Appeal allowed a further appeal, on points of law, by the second and third applicants, quashed the previous judgment and sent the case back for fresh consideration of the applicants’ appeal against the judgment of 30 September 2005.

On 13 March 2007 the Bucharest County Court allowed the applicants’ appeal against that judgment and dismissed the request for revision, considering that the application form had not represented relevant evidence in delivering that judgment.

The Bucharest Town Council lodged a further appeal on points of law. By a letter of 18 March 2009 the Government informed the Court that the proceedings were still pending.

The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008).


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicants, Mr Nurettin Demir and Mrs Çiçek Demir, are Turkish nationals who were born in 1976 and 1975 respectively and live in Manisa. They were represented before the Court by Mr C. Hüseyni, a lawyer practising in Manisa.

The Turkish Government (“the Government”) are represented by their Agent.

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

On 31 July 2002 the applicants’ three-year-old daughter Melisa, while walking with the second applicant, was severely injured and later died, after a rubbish container she had touched fell on top of her.

According to the post-mortem examination report, dated 1 August 2002, the cause of death was bleeding into the chest cavity (haemothorax), possibly resulting from the falling of a rubbish container on the deceased. A classic autopsy was not deemed necessary.

On the same day the first applicant gave a statement to the police in which he stated, inter alia, that if the incident was the result of negligence on the part of the Municipality then he wished to lodge a complaint.

On 6 August 2002 the second applicant gave evidence to the police. She submitted that while they were walking home from a visit, her daughter had grabbed the open metal lid of the rubbish container and the rubbish container had fallen on top of her.

On the same day the second applicant’s sister – an eye-witness to the events – also gave evidence along the same lines as the second applicant.

On 7 August 2002 two police officers inspected the area where the incident had taken place. They noted, inter alia, that the back wheels of the container were faulty and that the container had a tendency to fall backwards if the lid was pulled.

On 14 April 2003 the prosecutor heard evidence from Mr A.L., the municipal official responsible for rubbish containers, as a suspect. He maintained, inter alia, that he had been informed of the incident ten days after the events, that the municipality had given financial support to the family, and that the incident had been due to the applicants’ daughter pulling the lid of the rubbish container.

On the next day, 15 April 2003, the prosecutor filed a bill of indictment charging the second applicant and Mr A.L. with causing death by negligence. The charges were brought under Article 455 of the Criminal Code (no. 765).

Subsequently, criminal proceedings commenced before the Turgutlu Criminal Court of First Instance.

On 16 June 2003 the Turgutlu Criminal Court of First Instance conducted an on-site inspection.

On 4 July 2003 an expert report, prepared by Mr E.Ö., found that the degree of fault attributable to the second applicant for the death of the applicants’ daughter was 2/8, and it was 6/8 in respect of Mr A.L. The defendants objected to the report and a second expert report was commissioned by the court.

On 15 September 2003 a second expert report, prepared by one lawyer and two experts on job safety, held that no fault could be attributed to the accused as the responsibility lay with the Turgutlu Municipality, on the basis of the notion of service fault (hizmet kusuru), since the wheels of the rubbish container in question had been broken and it had been placed on an uneven surface.

On 25 February 2004 the Turgutlu Criminal Court of First Instance, on the basis of the expert report, acquitted the applicant of the charges against her. It also decided to halt the proceedings against Mr A.L. since no prior authorisation for his prosecution had been obtained, as required under domestic legislation.

On an unspecified date the prosecuting authorities requested the Turgutlu District Governor’s Office to grant authorisation for Mr A.L.’s prosecution.

On 11 November 2004 the Turgutlu District Governor’s Office, after a preliminary investigation, declined to grant the necessary authorisation for Mr A.L.’s prosecution. In its decision, the District Governor’s Office noted that under the provisions of the contract concluded between the Turgutlu Municipality and the Hastürkler limited company (the firm responsible for rubbish collection – hereinafter “the company”), it had been the responsibility of the company to repair the faulty container and to inform the municipal official with responsibility for rubbish containers about it.

On 8 December 2004 the Manisa Regional Administrative Court dismissed an objection by the prosecutor and upheld the decision of the Turgutlu District Governor’s Office.

On 7 February 2005 the prosecutor, noting that authorisation to prosecute Mr A.L. had been refused, decided not to prosecute him.

On 16 January 2004 the applicants had applied to the Turgutlu Municipality for compensation. Since no response was received, on 13 May 2004 the applicants brought an action for compensation in the Turgutlu Administrative Court against the Municipality.

On 1 July 2004 the first-instance court dismissed the applicants’ claim for compensation on the ground that they had submitted it too late (süre aşımı). In this connection, the court, referring to section 13 of Law no. 2577, noted that it should have been obvious to the applicants that the responsibility of the Municipality was engaged and therefore they should have applied to the relevant authority within a year of the death of their child.

On 9 February 2005 the Supreme Administrative Court, by a majority, upheld the judgment of the first-instance court. A request by the applicants for rectification of its judgment was also dismissed by the same court on 13 February 2006. On both accounts one judge dissented on the ground, inter alia, that the applicants had become aware of the fault of the municipality only on receipt of the expert reports, and that therefore they were within the applicable time-limits.

On 18 August 2006 the applicants lodged a criminal complaint with the Turgutlu public prosecutor’s office against Mr M.H., the authorised representative of the Hastürkler limited company, requesting that he be prosecuted and convicted for the death of their daughter. They submitted that nineteen months had elapsed since the prosecutor’s office had decided not to prosecute the municipal authorities and that no other steps had been taken since that time. In this connection, the applicants requested the prosecutor’s office to act without further delay as the statutory time-limit for trial in respect of the offence was approaching.

Mr M.H. gave evidence to the police on 6 December 2006, denying the allegations against him and claiming that the company was responsible only for collecting rubbish in and around the rubbish containers and nothing further.

In an indictment dated 13 May 2007 the Turgutlu Public Prosecutor charged Mr M.H. with causing death by negligence. The charges were brought under Articles 85 § 1, 22 and 50 § 4 of the Criminal Code.

On 21 May 2007 the criminal proceedings against the accused began before the Turgutlu Criminal Court of First Instance.

In the course of the trial the court heard evidence from the accused and the applicants, commissioned expert reports and conducted an on-site inspection.

The expert report prepared by Mr C.B., an inspector at the Labour and Social Security Ministry, concluded that the Municipality and the company responsible for collecting the rubbish were at fault.

On 14 September 2007 the applicants joined the proceedings as civil parties (müdahil).

On 5 December 2007 an expert report prepared by three engineers, experts on job safety, concluded that the second applicant was at fault to the degree of 4/8 for the death of the applicants’ daughter as she had not been diligent, the Municipality was at fault 2/8 for not conducting the necessary inspections, and Mr M.H. was at fault 2/8 for failing to replace the broken wheels of the rubbish container.

On 27 February 2008 the first-instance court, relying on the findings of the expert reports of 31 January 2007 and 5 December 2007, found that Mr M.H. was guilty as charged and sentenced him to two years’ imprisonment. This sentence was subsequently reduced to six months’ imprisonment and commuted to a fine.

On 16 September 2010 the Court of Cassation quashed the decision of the first-instance court and discontinued the proceedings against the accused on the ground that the prosecution of the offence had become timebarred under Articles 102 § 4 and 104 § 2 of the Criminal Code (no. 765) and Article 322 of the Code of Criminal Procedure.

On 30 July 2007 the applicants initiated compensation proceedings against the company on the ground that the latter was responsible for the death of their daughter. The first applicant requested 7,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 15,000 in respect of nonpecuniary damage. The second applicant requested TRL 8,000 in respect of pecuniary damage and TRL 15,000 in respect of non-pecuniary damage. The applicants further requested, on behalf of their remaining two children, TRL 5,000 in respect of non-pecuniary damage. They further requested the court to issue a temporary injunction banning the sale or transfer of the cars belonging to the company.

The company requested the court to dismiss the proceedings as they considered that no fault could be attributed to it.

On 1 August 2007 the compensation proceedings commenced before the Turgutlu Civil Court of First Instance. Regular hearings were held. The court examined the case-file of the criminal proceedings brought against the company representative and commissioned an additional expert report to examine the discrepancies between the expert reports contained in the casefile.

At a hearing on 9 October 2007 the first-instance court issued an injunction in respect of two cars belonging to the company.

On 18 July 2008 an expert report prepared by Mr Ö.T. concluded that both the Municipality and the company were 50% at fault.

On 30 July 2008 an expert report prepared by a lawyer was submitted to the court. This report concerned the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the expert report of 18 July 2008.

Another expert report prepared by three engineers, experts on job safety, concluded, on 15 December 2008, that the company was at fault in the circumstances of the present case. They considered that since the municipality had not been informed of the condition of the rubbish container, no fault could be attributed to it. The report further concluded that no fault could be attributed to the second applicant, as she had been holding the deceased’s hand at the time of the incident.

At a hearing held on 6 March 2009 the first-instance court decided to commission an additional expert report, as it considered the conclusions as to the attribution of fault in the earlier reports were divergent.

On 20 April 2009 an expert report prepared by three engineers, experts on job safety, was submitted to the court. That report concluded that the company was 25% at fault for not preventing its workers from misusing the containers, for not supervising the work, for the placing of the container on an uneven surface, and for the failure to inform the authorities about the broken wheel. It considered that Mr M.H. was 5% at fault for not ensuring general work discipline. The second applicant was 20% at fault for not preventing the child from touching the container, and the Municipality was 50% at fault for not placing the container on an even surface, for not ensuring the container did not overbalance when the lid was open, for not checking or prescribing and taking measures to prevent misuse of the container from causing harm, and for not checking whether the relevant work was being conducted in accordance with the provisions of the contract.

On 26 October 2010 an additional expert report was prepared by a lawyer, calculating the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the latest expert report.

On 5 October 2009 and 3 November 2009 the applicants requested the court to broaden the case so as to include Mr M.H. and the Municipality as co-defendants in the compensation claim.

On 3 November 2009 the first-instance court partially ruled in the applicants’ favour. It first held that the second applicant was at fault for letting her child get too close to a rubbish container in the middle of the night; the municipality was at fault for several reasons, such as not placing the bin on a proper surface, not ensuring that its lid was properly functional, and not checking whether the rubbish container posed a danger, or whether the company was abiding by its contractual obligations. It found that the company was at fault for various reasons, such as not enforcing work discipline, not preventing the misuse of its rubbish containers, and failing to monitor and inform the relevant authorities about faulty rubbish containers. It considered that the responsibility of the company for the incident was 25%. It thus awarded the first applicant TRL 3,319.56 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage, and the second applicant TRL 3,155.62 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage. It further awarded TRL 1,500 in respect of nonpecuniary damage to each of the applicants’ surviving children. The court fixed the interest at the statutory rate applicable on 31 July 2002, the date of the incident. Finally, the court dismissed the applicants’ request for the broadening of the case to include Mr M.H. and the Municipality as codefendants, as no such procedure existed in domestic law.

The applicants appealed.

On 15 January 2010 the applicants commenced enforcement proceedings in order to claim the sums due, which amounted in total to TRL 53,671.49 at the time. The Government submitted correspondence between the enforcement office and various institutions, notably banks, concerning whether the company had any existing assets. According to the record prepared by Mr R.C., a deputy enforcement officer, on 16 February 2012 no movable or immovable property was registered under the name of the firm and the case-file was closed on 29 December 2011.

On 14 July 2011 the Court of Cassation rectified and upheld the decision of the first-instance court.

On 30 September 2011 the applicants initiated compensation proceedings against the Turgutlu Municipality. The latter raised the objection that the court was prevented from examining the case as the statutory time-limit had expired.

On 3 February 2012 the Turgutlu Civil Court of First Instance held that the statutory time-limit for examining a compensation claim arising out of a tortious act (haksız fiil) had expired. Referring to Article 60 of the Civil Code of Obligations, the court noted that the liability of the municipality as regards the events had been held to be 50% in the previous compensation proceedings, and thus the applicants had failed to lodge an application with the court against the Municipality within one year of the date on which they had learned of the damage and its perpetrator.

The relevant domestic law applicable at the time of the events is as follows.

Article 17 of the Constitution provides that everyone has the right to life.

Article 455 § 1 of the Criminal Code (no. 765) reads:

“Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.”

A prosecution for an offence punishable by a prison sentence of a maximum of five years must be brought within five years (Article 102 § 4 of the Criminal Code (no. 765)).

At the time of the incident, under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, was informed of a situation which gave rise to a suspicion that an offence had been committed was required to investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, the public prosecutor’s jurisdiction was restricted ratione personae at the preliminary investigation stage if the suspected offender was a State employee or public servant and the alleged offence had been committed during the exercise of official duties. Law no. 4483 (Law on the prosecution of civil servants and public officials) determined which authorities were empowered to give permission for a State employee or public servant to be prosecuted for an offence committed in the exercise of official duties and regulated the procedure to be followed. In such cases, it was for the competent authority (depending on the suspect’s status) to conduct a preliminary investigation and, consequently, to decide whether criminal proceedings should be opened. The decision given by the relevant authority could be challenged before the Supreme Administrative Court. A decision not to prosecute was automatically reviewed by that court.

On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Under Article 85 § 1 of the new Criminal Code a person causing the death of another person by negligence was liable to a term of imprisonment of between two and six years.

Section 13 of Law no. 2577 (Code on Administrative Procedure) provides that persons who have suffered damage on account of a wrongful act of the administration must apply to the relevant authority for rectification of the situation within a year of the date on which they were notified or otherwise learned of the impugned act, before bringing a lawsuit. Should all or part of the claim be dismissed, or if no reply is received within sixty days, the victim may bring administrative proceedings.

Under the Code of Obligations (no. 818), anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53).

In civil law, the claim for damages must be initiated within one year of the date when the prejudiced party has received knowledge of the damage and of the person liable, but in any case within ten years of the date when the act which caused the damage took place (Article 60 of the Code of Obligations (no. 818)).


Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant, Mr Mohamed El Morabit, is a Moroccan national who was born on 24 January 1981. His current place of residence is El Hoceima, Morocco, his place of birth. He was represented before the Court by Mr M. Wijngaarden, a lawyer practising in Amsterdam.

and as apparent from information available to the public, may be summarised as follows.

The applicant entered the Netherlands in 1998, at the age of seventeen, for the purpose of lawful family reunion. He was granted a residence permit (vergunning tot verblijf) for that purpose, which was extended several times at his request until the events complained of.

After his arrival in the Netherlands, the applicant went to school for a time; he later became unemployed.

In November 2004 the applicant was arrested on suspicion of belonging to an Islamist terrorist group known as the “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located).

On 20 January 2005 the then Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) notified the applicant of her intention to withdraw his residence permit on the ground that he posed a threat for national security. That finding was based on an individual intelligence report (individueel ambtsbericht) dated 24 December 2004 that the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) had submitted, and which was appended.

According to the intelligence report of 24 December 2004, the applicant was a member of a group led by a Syrian national who recruited radical Muslim youths. The group, of which the applicant was stated to be one of the more radical members, held regular meetings, during which the Syrian preached Islamic extremism and violent jihad (holy war). The applicant was understood to be in the possession of tape recordings calling for armed jihad and stating that it was forbidden to have dealings with “Christian dogs” (dat omgang met “christenhonden” is verboden). The applicant was stated to have radicalised a young woman of Moroccan origin to the point where she had taken to wearing a burka and refused to pray with her own family. The report identified other members of the group by name; of these, the best known was Mohamed B., who was later convicted of the murder of the film director Theo van Gogh.

An earlier intelligence report, dated 4 November 2004 and on which the later intelligence report was based in part, described the members of the group meeting to discuss and plan violent jihad, and watching and expressing approval of films showing the beheading of persons including hostages in Iraq.

On 11 February 2005 the applicant, through his counsel, submitted written comments denying his involvement in the planning of unlawful violence, arguing that the AIVD information was unreliable and unverifiable, and that the measure intended was a disproportionate interference in his family life.

On 1 March 2005 the Minister gave a decision withdrawing the applicant's residence permit, essentially on the same grounds as those stated in the original notification. The following day she gave an additional decision declaring the applicant an undesirable alien, entailing the imposition of an exclusion order (ongewenste vreemdeling).

On 7 March 2005 the applicant applied for an interim measure (voorlopige voorziening) aimed at preventing his deportation pending the outcome of the proceedings. He lodged an objection (bezwaarschrift) against each of the two decisions on 24 March 2005.

On 20 April 2005 the applicant supplemented his objection with a statement of grounds in which he argued that the AIVD information was unreliable and that he could not be expected to return to Morocco and accept permanent separation from his parents. In a separate letter of the same day he asked to see the information on which the AIVD intelligence report was based.

On 2 May 2005 the applicant asked for the decision on his objection to be deferred until he had had a chance to study the AIVD information. This request was repeated on 6 July and 22 July 2005. On 27 July 2005, however, the Minister for Immigration and Integration replied that there was no reason not to proceed.

On 19 September 2005 the Minister gave two separate decisions dismissing the objections. The conclusions reached by the AIVD were presumed correct; the immigration authorities were not duty bound to undertake any further investigation of their own.

The applicant appealed to the Regional Court (rechtbank) of The Hague against both decisions on 12 October 2005.

On 10 March 2006, in criminal proceedings distinct from the immigration proceedings, the Regional Court of Rotterdam convicted the applicant of membership of a criminal organisation and membership of an organisation aiming to commit terrorist crimes and sentenced him to two years' imprisonment.

On 12 June 2006 the Regional Court of The Hague, sitting in Amsterdam, gave an order for a provisional measure that would allow the applicant to await the outcome of the proceedings in the Netherlands. In separate decisions, it declared the appeals well-founded; it considered the AIVD intelligence reports to be insufficiently “objective and transparent” (objectief en inzichtelijk). The Minister's decisions were annulled and the Minister was ordered to decide afresh.

On 19 June 2006 the Security and Integrity Office (Bureau Veiligheid en Integriteit) of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) submitted a written statement to the Minister to the effect that, after examination of the documents underlying the reports, it appeared that the AIVD intelligence investigation had met applicable standards of due care as regards content and procedure followed and was transparent.

The Minister appealed to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) against the Regional Court's decisions on 10 July 2006.

In parallel, the Minister gave a new decision on the objection against the withdrawal of the applicant's residence permit on 20 July 2006. She accepted that the AIVD reports were adequate as to their objectivity, impartiality and thoroughness and that the AIVD had to protect their sources of information. In so far as the applicant had denied the accuracy of the AIVD reports, he had not given any relevant arguments.

The following day the Minister gave a new decision in much the same terms in which she dismissed the objection against the decision to impose an exclusion order on the applicant.

On 28 July 2006 the President of the Administrative Jurisdiction Division of the Council of State declared the Minister's appeal of 10 July 2006 well-founded. He annulled the Regional Court's decisions of 12 June 2006 and remitted the cases to the Regional Court. In the same decision he annulled the Minister's decisions of 20 and 21 July 2006, which had been adopted pursuant to the Regional Court's decision of 12 June 2006, and ordered the deferral of the applicant's deportation until 4 August 2006 so that the applicant had a realistic chance to seek a provisional measure from the Regional Court itself.

The applicant applied to the Regional Court of The Hague for a stay of deportation on 2 August 2006. In his statement of grounds, submitted the following day, he now relied on Article 3, arguing that the Moroccan authorities treated terrorist suspects harshly. On 24 August 2006 the Regional Court granted an interim measure allowing the applicant to await the outcome of his appeals in the Netherlands.

Having held a hearing on 4 October 2006, the Regional Court decided that it needed to study the information on which the conclusions of the AIVD intelligence reports were based. To that end, it reopened the case.

The Regional Court gave its decision on 12 January 2007. Having studied the AIVD information, it found that the AIVD's conclusions had an adequate basis in fact; there was no need to reopen the discussions on that score. A threat relevant to Article 3 of the Convention in the event of the applicant's return to Morocco had not been established. The applicant's appeal against the withdrawal of his residence permit was held to be inadmissible in view of the decision to impose an exclusion order on the applicant; the appeal against the latter decision was dismissed as unfounded.

The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which on 27 April 2007 dismissed it, referring to standing case-law.

The applicant was deported to Morocco on 19 January 2007.

The applicant appealed against his conviction (paragraph 16 above). On 24 January 2008 the Court of Appeal of The Hague quashed the conviction and acquitted the applicant.

The Public Prosecution Service lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad) against the acquittal. On 2 February 2010 the Supreme Court quashed the judgment of the Court of Appeal and remitted the case to the Court of Appeal of Amsterdam where it remains pending.

On 21 December 2006 the Council of the European Communities adopted a list of persons, groups and entities to be subjected to restrictive measures pursuant to Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (Council Decision 2006/1008/EC). This list was updated on 28 June 2007 (Council Decision 2007/445/EC). These lists mentioned the applicant as follows:

“EL MORABIT, Mohamed, born 24.1.1981 in Al Hoceima (Morocco), passport (Morocco) No. K789742 (Member of the 'Hofstadgroep')”

As provided for in Council Regulation (EC) No 2580/2001, this restricted the applicant's use of financial services and of any assets which he might possess, access to these being permissible only for limited purposes including the fulfilment of essential human needs and the payment of taxes.

The applicant brought actions in the Court of First Instance (now re-named the General Court; the first-instance body of the Court of Justice of the European Communities, as it was named at the time) for annulment of Council Decisions 2006/1008/EC and 2007/445/EC in so far as they included his name (Cases T-37/07 and T-323/07 respectively). The European Commission and the Netherlands Government sought, and were granted, permission to intervene.

On 2 September 2009 the Court of First Instance dismissed both actions and ordered the applicant to pay his own costs and those of the Council.

Section 67 of the Aliens Act 2000 (Vreemdelingenwet 2000) provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to national security. An alien on whom an exclusion order has been imposed cannot be lawfully resident in the Netherlands.

An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (section 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.


Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in 1948 and is currently detained in Voghera.

On 6 August 1996 the applicant, accused of international drugtrafficking, was arrested in Milan. He was in possession of a false passport in the name of José Luis Troccoli Perdomo.

On 7 August 1996 the applicant was questioned by the Milan Public Prosecutor. Criminal proceedings were instituted against José Luis Troccoli Perdomo.

By an order of 9 August 1996, the Milan investigating judge remanded the applicant in custody. He observed that there was strong evidence of guilt against the applicant, who was in possession of documents showing that he was in contact with persons connected to drug-trafficking. Given the amount of cocaine (104 kilograms) imported by those persons and the fact that they were probably part of a major criminal organisation, the investigating judge considered that there was a serious risk of re-offending and a risk of tampering with evidence. Moreover, the applicant had declared that he was a tourist and that he had no links whatsoever to Italy. It was therefore reasonable to believe that he would try to abscond in order to avoid the consequences of the legal proceedings commenced against him.

The applicant challenged the order before the Milan District Court, which dismissed his appeal on 23 September 1996. The District Court observed that new evidence had emerged against the applicant, who had been recognised as the person who had rented a deposit box in which the cocaine had been found, had helped to move a container into the deposit box and was facing another set of proceedings for drug-trafficking pending in Bassano del Grappa. The Milan District Court held that there was a serious risk of his re-offending, as evidenced by the fact that the applicant was part of a powerful criminal organisation. Moreover, if he were released, the applicant might try to get in touch with the other members of the organisation in order to tell them about the investigations with a view to tampering with the evidence. Finally, there was a risk of his absconding, confirmed by the fact that the applicant had given a different name to the Bassano del Grappa judicial authorities.

The applicant did not appeal on points of law to the Court of Cassation against the order of 23 September 1996.

On 27 May 1997 the Milan Public Prosecutor’s Office requested that the applicant and twelve other persons be committed for trial. The preliminary hearing was scheduled for 23 June 1997, on which date the applicant was committed for trial, to begin on 2 April 1998 before the Milan District Court.

In a judgment of 22 April 1998, filed with the registry on 27 April 1998, the Milan District Court declared that the case was outside its jurisdiction ratione loci and ordered the transmission of the case-file to the Genoa Public Prosecutor’s Office.

In a decision of 8 May 1998 the Genoa investigating judge extended the applicant’s detention on remand. After confirming the observations made in the orders of 9 August and 23 September 1996, he noted that further investigation had revealed that the applicant had played an active role in renting the deposit box where the cocaine had been found and in sending the container in which it was concealed and had kept in contact with the other defendants who had been caught by the police in the act of removing the cocaine from the container. The investigating judge considered moreover that there was a risk of his re-offending and absconding after having committed the offence. He noted in that respect that another set of criminal proceedings had been instituted against the applicant in Bassano del Grappa, and that the accused had tried to abscond, producing false identification papers.

The applicant did not appeal against the decision of 8 May 1998.

On 4 November 1998 the Public Prosecutor attached to the Genoa District Court forwarded the case-file to the Como Public Prosecutor’s Office.

In a judgment of 7 October 1999, filed with the registry on 28 October 1999, the Como District Court found the applicant guilty of the charges against him and sentenced him to fifteen years’ imprisonment and imposed a fine of 130,000,000 Italian lire (ITL). The applicant’s name was established as being in reality Horacio Sardinas Albo.

On 20 December 1999 the applicant appealed against that judgment. He challenged, in particular, the jurisdiction of the Como District Court.

The hearing was scheduled for 16 March 2000. On that date, the applicant concluded a plea bargain (applicazione della pena su richiesta delle parti) with the Public Prosecutor attached to the Milan Court of Appeal. The applicant agreed to withdraw his appeal in return for a reduction in his sentence.

In a judgment of 16 March 2000, the Milan Court of Appeal recognized the agreement reached by the parties and reduced the applicant’s sentence to eleven years’ imprisonment and a fine of ITL 100,000,000.

The applicant’s appeal on points of law was declared inadmissible by the Court of Cassation in a judgment of 2 February 2001.

Meanwhile, on 14 May 1998, the Ministry of Justice had requested that the applicant be placed in detention with a view to his extradition to the United States. In an order of 15 May 1998 the Brescia Court of Appeal had provisionally granted the request.

On 22 May 1998 the applicant was interviewed by the President of the Brescia Court of Appeal. He declared that he did not agree to be extradited since the absence of diplomatic relations between Cuba and the United States could result in his being detained for an indefinite period of time (a situation commonly known as “limbo incarceration”).

On 22 May 1998 the applicant challenged the order of 15 May 1998. He contested in particular the authorities’ assumption that it was necessary to prevent him from absconding before the extradition decision could be enforced. By an order of 26 May 1998 the Brescia Court of Appeal rejected his claim. The applicant’s appeal on points of law was declared inadmissible.

On 22 June 1998 the United States authorities requested the applicant’s extradition for offences related to drug-trafficking (importation and possession of 425 kilograms of cocaine).

On 25 August 1998 the Brescia Public Prosecutor’s Office requested that extradition be granted. It was noted that an arrest warrant had been issued against the applicant on 9 June 1993 by the Porto Rico District Court and that in the light of the evidence produced by the United States authorities it was reasonable to believe that the applicant was guilty of the offences with which he had been charged.

In a judgment of 2 October 1998, filed with the registry on 6 October 1998, the Brescia Court of Appeal ruled in favour of extradition.

On 27 October 1998 the applicant appealed on points of law. He submitted that Cuban nationals incurred a serious risk of indefinite detention in the United States.

By a judgment of 29 January 1999, filed with the registry on 29 March 1999, the Court of Cassation dismissed the applicant’s appeal.

On 12 May 1999 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were then pending before the Como District Court, the Ministry decided, according to Article 709 of the Code of Criminal Procedure (hereinafter, the “CCP”), to suspend the enforcement of the extradition.

Meanwhile the United States authorities had once again requested the applicant’s extradition in relation to a charge of false statements. The applicant had allegedly declared that his name was Gilberto Ramos in order to obtain a United States passport and had produced evidence corroborating the assertion.

By an order of 4 June 1999 the Brescia Court of Appeal decided that the applicant should be detained with a view to extradition. It noted, in particular, that the applicant had already left the jurisdiction of the Florida courts and that there was a specific risk of his absconding. The order indicated that the applicant was a Cuban citizen who, in February 1973, had obtained a permanent residence permit in the United States.

On 8 July 1999 the applicant appealed on points of law against the order of 4 June 1999.

By a judgment of 19 August 1999, filed with the registry on 1 September 1999, the Court of Cassation declared the applicant’s appeal inadmissible because it had been lodged out of time.

By a judgment of 9 March 2000, filed with the registry on 21 March 2000, the Brescia Court of Appeal ruled in favour of extradition.

The applicant appealed on points of law. By a judgment of 19 September 2000, filed with the registry on 30 October 2000, the Court of Cassation, considering that the Court of Appeal had duly given reasons for its decision, dismissed the applicant’s appeal.

By an order of 3 November 2000 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were still pending, the Ministry decided to suspend enforcement of the extradition.

The first paragraph of Article 273 of the CCP provides that “no one shall be detained pending trial unless there is serious evidence of his guilt”.

Article 274 CCP goes on to provide that detention pending trial may be ordered: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; and (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ...”

Under Article 275 of the CCP, precautionary measures should be adapted, in each individual case, to the nature and degree of the conditions set out in Article 274; they must be proportionate to the seriousness of the offence and to the sanction which is likely to be applied. Detention pending trial may be ordered only if all other precautionary measures appear to be inadequate.

Article 292 CCP provides inter alia that a detention order must contain an explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt, including the factual elements on which the evidence is based and the grounds for its relevance, and must also take into account the time elapsed since the offence was committed.

According to the Court of Cassation’s case-law, the existence of evidence of guilt and of the reasons for detention set out in Article 274 of the CCP should be re-examined in the light of any new relevant facts, such as the time elapsed since the beginning of the enforcement of the precautionary measure (see the Fourth Section’s judgment no. 2395 of 16 October 1997 in the case of Luise).

Article 303 CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings and according to the seriousness of the offences with which the accused is charged.

In 1989 the Court of Cassation held that the Convention provisions were applicable in Italy, provided that they were drafted in sufficiently precise terms (see the Plenary Court’s judgment no. 15 of 8 May 1989 in the case of Polo Castro). According to the Constitutional Court, the Convention is a special source of law which cannot be modified by ordinary law (judgment no. 10 of 19 January 1993).

However, in more recent decisions, the Court of Cassation has held that Article 5 § 3 of the Convention is not directly applicable in Italy, by reason of its general and indeterminate character (natura programmatica see, in particular, the following judgments: no. 2549 of 28 May 1996 (First Section) in the case of Persico; no. 2550 of 31 May 1997 (First Section) in the case of Esposito; no. 1439 of 21 May 1998 (Fourth Section) in the case of Scattolin).

According to Article 709 of the CCP “The enforcement of extradition shall be suspended if the person to be extradited ought to be judged [in Italy] or must serve [in Italy] a sentence imposed on him or her for offences committed before or after the offence in respect of which the extradition has been granted ...”.