Preliminary objection rejected (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in 1940 and lives in Vladivostok.

In 1988 the applicant and her partner, Mr Filippov, together moved into a flat provided by Mr Filippov’s employer, a State enterprise. The applicant left the flat where she had previously lived to her daughter and her daughter’s family.

Although the applicant and Mr Filippov never married, from 1988 onwards they lived together as husband and wife. They purchased all household items for the new flat jointly. Between 1992 and 1995 Mr Filippov supported their family financially because the applicant was unemployed. According to the applicant, Mr Filippov’s relatives and their neighbours considered them to be a family. Postcards and letters were addressed to Mr and Ms Filippov and the applicant received correspondence at the new address.

The applicant retained her residence registration at her old address. The applicant explains that she suffered from an ear ailment and wanted to remain under the observation of her former ear-specialist. Had she changed her residence registration, she would no longer have been entitled to visit the doctor practising in her former neighbourhood.

The applicant and Mr Filippov spent the summer of 1998 in their country cottage. On 18 August 1998 Mr Filippov returned to the town for a week.

On 24 August 1998 Mr Filippov died and his body was found by a neighbour. On 26 August 1998 Mr Filippov was buried in the presence of his son and his two sisters who had been summoned by a telegram.

The applicant was not notified of her partner’s death or funeral service. She only learnt of it when she returned to the city late in the day on 26 August 1998.

On 27 August 1998 the applicant received a phone call from the local housing maintenance authority (жилищно-эксплуатационное управление), requesting an explanation as to why the flat was not empty. The applicant responded that she did not have formal residence registration in the flat, but she had lived there for more than ten years. On 1 September 1998 a representative of the housing maintenance authority visited the applicant at the flat and drafted a report to the effect that the flat was not empty. The applicant was not given a copy of the report. The representative advised the applicant to secure her right to use the flat through a court.

On 2 September 1998 the applicant filed a request with the housing maintenance authority to be given an occupation certificate (ордер) for the flat. Her request was refused because on 1 September 1998 an occupation certificate had already been issued to Mr Valetov, the head of the local police department and hierarchical superior of Mr Filippov’s son.

On 4 September 1998, on returning to the flat, the applicant found that the door had been broken open and that books and other household items were being loaded onto a lorry. The applicant states that the possessions were removed in the presence of Mr Valetov, Mr Filippov’s son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, the applicant was told to vacate the premises immediately. When the applicant refused to comply with the request, she was thrown out of the flat by force. The door was replaced and the applicant was not given keys.

On 7 September 1998 the applicant filed a complaint against Mr Valetov with the prosecutor’s office of the Sovietskiy District of Vladivostok. The applicant requested a criminal investigation into her forcible eviction and the removal of her possessions. On 14 September 1998 the prosecutor’s office informed the applicant that her allegations were unsubstantiated and refused to open criminal proceedings.

On 1 October 1998 the applicant filed a civil action against the Vladivostok City Council and Mr Valetov. The applicant claimed that she should be recognised as a member of her late partner’s household and asked for the occupation certificate issued to Mr Valetov to be declared void. The applicant submitted in evidence many witness statements by relatives, by neighbours living in the same block of flats and by summer house neighbours, as well as personal photographs, letters, postcards and mail receipts.

On 27 November 1998 the applicant complained to the Vladivostok city prosecutor’s office about the refusal to open a criminal investigation into Mr Valetov’s actions. By a letter of 17 December 1998 the applicant was informed that the prosecutor’s office had reversed the refusal and ordered the Sovietskiy District prosecutor’s office to carry out an inquiry.

On 5 January 1999 the Sovietskiy District prosecutor’s office reported that an inquiry had not established any indication of a criminal offence. On 7 May 1999, after the applicant had complained again, the Vladivostok city prosecutor’s office examined the matter and confirmed this conclusion.

On 9 August 1999 the Sovietskiy District Court of Vladivostok dismissed the applicant’s civil action, finding as follows:

“Under these circumstances, the court considers that it has been established in court that [the applicant] lived in the contested flat, which [fact] is corroborated by postcards addressed to Mr Filippov and [the applicant], a parcel delivery notice; however, [the applicant’s] residence was of a temporary nature.

The court has established that Mr Filippov, while still alive, did not recognise [the applicant’s] tenancy right in respect of the contested flat; [the applicant] did not produce evidence showing that Mr Filippov had recognised her right to tenancy. Besides, it has been established that [the applicant] retained her tenancy right in respect of [her daughter’s flat] and that she had moved into the contested flat in breach of the procedure established by Article 54 § 1 of the RSFSR Housing Code...

Furthermore, [the applicant’s] assertion about the presence of her personal effects (250 items) in the contested flat... is rebutted by the results of the inquiries carried out by the Sovietskiy District and Vladivostok City prosecutor’s offices, as well as the housing maintenance authority report of 4 September 1998.

Under these circumstances, the court finds that [the applicant] has not acquired the tenancy right to [the contested flat]...”

The court grounded its findings on the statements of Mr Filippov’s son and daughter-in-law; however, the court rejected a statement by the applicant’s daughter on the ground that she was an interested witness. It also determined that statements by five neighbours produced at the hearing were not sufficient to establish that the applicant and Mr Filippov had maintained a joint household.

The applicant appealed against the judgment. In her statement of the grounds of appeal of 17 August 1999 the applicant pointed to a very substantial body of evidence proving her residence in the flat (statements by witnesses, postcards, mail receipts, etc.). She alleged that her late partner’s son had conspired with his police superior to acquire the flat, which explained why they had managed to obtain in just two days the decisions of the City Council and of the housing maintenance authority, as well as the occupation certificate and residence registration stamp. She complained that she had been thrown out by force, contrary to the applicable provisions of the Housing Code.

On 6 October 1999 the Civil Section of the Primorskiy Regional Court upheld the decision of 9 August 1999. The Regional Court endorsed the arguments of the first instance court.

The applicant submitted several requests for supervisory review, all of which were turned down.

According to the applicant, the flat was privatised in 1999 and sold to a third party.

The RSFSR Housing Code of 24 June 1983 (as amended on 28 March 1998, effective at the material time) provided:

“The tenant’s family members shall include the tenant’s spouse, children and parents. Other relatives, disabled dependants, and – in exceptional circumstances – other persons may be recognised as the tenant’s family members if they live together with the tenant and maintain a joint household.”

“The tenant shall be entitled to accommodate in his living premises, in accordance with the established procedure, his spouse, children, parents, other relatives, disabled dependants and other persons, subject to the written consent of all adult members of his family...

The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are, or have been recognised as, members of the tenant’s family (Article 53) and that no other agreement on the use of the premises has been signed between these persons, the tenant and his family members.”

“Eviction from occupied living premises in state or public housing shall only be permissible on the grounds set out in the law.

Eviction shall be ordered by a court...”


CASE OF VAGAPOVA AND ZUBIRAYEV v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

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

The applicants live in the village of Chechen-Aul, in the Groznenskiy District of the Chechen Republic.

The applicants are married. At the material time they lived together with their children at 8 Lenin Street, the village of Chechen-Aul. One of their sons, Mr Alis Adnanovich Zubirayev, was born in 1986.

At about 5.15 a.m. on 21 December 2004 someone knocked at the entrance door of the applicants’ house. Alis Zubirayev opened the door. Three armed men wearing military uniforms burst inside and beat Alis Zubirayev with machine-gun butts. The men wore no masks. They did not identify themselves but the first applicant inferred that they belonged to the Russian military. At some point three other servicemen entered the house.

The first applicant called her husband; when he entered the room, one of the servicemen ordered him to produce identity papers. When the second applicant did so, he saw a serviceman pointing a machine gun at Alis Zubirayev.

The servicemen asked Alis’s family name, examined his identity papers and said that it was “him”. Two of the servicemen twisted the young man’s arms behind his back and dragged him to the entrance door. The applicants asked them where they intended to take their son. The servicemen replied that the applicants had no reasons to worry. One of them told the first applicant to give him Alis’s jacket and shoes but did not allow Alis to dress.

The six servicemen left the house and took Alis to the street. The applicants followed them and saw an all-terrain UAZ vehicle without a registration number parked next to their gates. The servicemen put Alis on the floor of that vehicle and then got in it. The UAZ vehicle drove off. The applicants noticed an armoured personnel carrier (“APC”) parked behind UAZ. The APC’s registration number was illegible.

The UAZ and APC drove down Lenin Street and eventually turned to Partizanskaya Street.

After a while the applicants heard a noise and realised that an APC was ramming the gates of a neighbouring house. Later the applicants found out that servicemen had taken away their neighbour, Mr A.K.

The applicants have had no news of Alis Zubirayev since 21 December 2004.

The Government did not submit their account of the circumstances of Alis Zubirayev’s kidnapping.

At about 9 a.m. on 21 December 2004 the second applicant and relatives of A.K. came to the Groznenskiy District Department of the Interior (“ROVD”). Mr A., the head of the ROVD, told them that four policemen in an all-terrain UAZ vehicle had gone to Chechen-Aul to arrest Aslan Khatatayev and Mr M. and that they had been assisted by Russian military servicemen in APCs. Mr A. further said that the police had had no intention of arresting Alis Zubirayev and that he was unaware of the latter’s whereabouts. He suggested that Russian servicemen could have taken Alis to the village of Starye Atagi and confirmed that A.K. was detained in the ROVD.

In the afternoon of 21 December 2004 the applicants learned that some villagers had seen two APCs and an UAZ vehicle driving in the direction of Grozny.

Two days later A.K. was released from the ROVD and told the applicants the following. On his apprehension he had been first placed in an APC; at some point the servicemen had put a bag on his head and placed him in the UAZ vehicle. He could not tell whether Alis Zubirayev was in that vehicle. The servicemen had taken him to the ROVD. In the evening of 21 December 2004 they had taken the bag off his head and questioned him.

According to the applicants, a Russian military unit had its headquarters in a mill in the village of Starye Atagi. The applicants visited the head of Starye Atagi’s local administration and asked him to help them to find their son; he went to the mill, met the military servicemen and informed the applicants that Alis had not been kept there.

Later Mr A. told the applicants that he had talked to servicemen of the Federal Security Service (“FSB”) in Starye Atagi and that they had assured him that Alis Zubirayev had not been detained at the mill.

The applicants and their relatives repeatedly complained about Alis’s disappearance to various State agencies and officials. In particular, they applied to the Russian and Chechen Presidents, the Prosecutor General, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit, the Russian Ombudsman, the Chechen Ministry of the Interior, the State Council of the Chechen Republic, the Committee for Protection of Constitutional Rights of Citizens of the Chechen Republic and the head of the local administration of the Groznenskiy District. Most of the complaints were forwarded to the prosecutors’ offices’ at different levels.

On 28 December 2004 the first applicant requested the prosecutor’s office of the Chechen Republic to help her to find her son. On 30 December 2004 her complaint was forwarded to the prosecutor’s office of the Groznenskiy District (“the district prosecutor’s office”).

On 6 January 2005 the district prosecutor’s office instituted an investigation into Alis Zubirayev’s disappearance under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”) and informed the applicants of the decision. The case file was assigned the number 44004.

On 31 January 2004 the district prosecutor’s office granted the second applicant the status of victim of a crime in case no. 44004.

On 15 February 2005 the district prosecutor’s office informed the first applicant that investigative measures were being taken to solve her son’s kidnapping.

On 21 February 2005 the first applicant requested the district prosecutor’s office to question eyewitnesses to her son’s abduction and Mr A.

On 6 March 2005 the first applicant requested the prosecutor’s office of the Chechen Republic to search for her son more actively.

On 6 April 2005 the district prosecutor’s office informed the first applicant that the term of preliminary investigation in case no. 44004 had been extended to four months.

On 11 April 2005 the first applicant requested the military commander of the Chechen Republic to help her to establish her son’s whereabouts.

On 19 and 28 April 2005 the military commander of the Chechen Republic ordered the military commander of the Groznenskiy District together with the heads of the ROVD and the FSB department, to carry out an inquiry into the facts complained of by the first applicant.

On 27 April 2005 the prosecutor’s office of the Chechen Republic informed the first applicant that the preliminary investigation in case no. 44004 was pending.

On 29 April and 15 May 2005 the military commander of the Groznenskiy District informed the military commander of the Chechen Republic that the criminal investigation into Alis Zubirayev’s kidnapping by unidentified armed men had been instituted and was under way. He also noted that various law-enforcement agencies had not arrested Alis Zubirayev and had no information on his whereabouts.

On 23 May and 2 June 2005 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaints to the district prosecutor’s office.

On 19 July 2005 the military prosecutor’s office of military unit no. 20102 informed the first applicant that the investigation in case no. 44004 pending before the district prosecutor’s office had been suspended and that military involvement in the crime had not been proven.

On 1 September 2005 the Prosecutor General’s Office informed the first applicant that the investigation in case no. 44004 had been suspended on 9 August 2005 for failure to identify those responsible and then resumed on 19 August 2005. It was ongoing under their supervision.

On 5 October 2005 the district prosecutor’s office informed the second applicant that the investigation in case no. 44004 suspended on 18 September 2005 had been resumed.

On 26 June 2007 the district prosecutor’s office informed the second applicant that the investigation had been resumed for ten days.

On 4 July 2007 the district prosecutor’s office granted the first applicant victim status.

On 16 July 2007 the first applicant requested the district prosecutor’s office to resume the investigation into her son’s kidnapping and to allow her access to the investigation file.

In the autumn of 2007 case no. 44004 was transferred to the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic. The applicants were not officially notified of it.

On 8 May 2008 the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic informed the applicants’ representative that no access to the file in case no. 44004 could be granted, as the investigation had not been completed, and that it had been suspended on 1 May 2008.

In a written statement addressed to the Court the first applicant noted that on an unspecified date she had participated in a confrontation with A.K. organised by the district prosecutor’s office. In the course of the confrontation A.K. had been afraid to admit that he had seen another person in the UAZ on the night of his arrest. The first applicant had reproached him for cowardice and then A.K. had told the investigator that there had been a second detained person in the UAZ but he had not seen his face. A.K. had signed an interview record containing his statement which was kept in the investigation file.

On 27 December 2004 the district prosecutor’s office received the second applicant’s complaint concerning his son’s abduction.

On 6 January 2005 the district prosecutor’s office instituted an investigation of Alis Zubirayev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned the number 44004.

On unspecified dates the applicants were granted victim status in case no. 44004.

On an unspecified date the house at 8 Lenin Street was inspected as a crime scene. The investigators established that there was no mess inside the house and did not seize anything.

On an unspecified date the second applicant was questioned. He stated that at about 5.30 a.m. on 21 December 2004 six unknown armed men had entered his courtyard and started knocking at the entrance door of the house. Three of the armed men had gone to Mamed Zubirayev’s house located in the same courtyard. Alis Zubirayev had opened the door and three armed men had burst in. They had hit Alis Zubirayev with a machine gun butt and demanded the family members to produce identity papers. Having checked Alis Zubirayev’s papers they had taken the young man outside, put him in an UAZ vehicle without registration numbers and driven away. The UAZ was accompanied by an APC with its registration numbers covered with mud. At the time of his son’s abduction two other APCs had blocked a road leading out of the village. A.K. had also been abducted by unknown men and taken away in the APC. Two or three days later A.K. had returned home and said that at some point he had been out in the UAZ vehicle in which another detainee had been kept. On the day of his son’s abduction the second applicant contacted Mr A., the ROVD head, who had told him that he had sent a UAZ vehicle to the village of Chechen-Aul to arrest Mr S.-M.K and Mr M.A. and that ROVD servicemen had not arrested Alis Zubirayev.

The first applicant and several other witnesses made identical statements. During her second interview the first applicant added that the armed men had taken away her son’s identity papers and warm clothing that she had given them for Alis Zubirayev.

On an unspecified date the head of the local administration was questioned. He stated that on 22 December 2004 he had learned of Alis Zubirayev’s abduction from a local policeman. Prior to that date he had not been acquainted with the Zubirayevs. The local administration had not received any complaints about Alis Zubirayev’s behaviour before his kidnapping.

On an unspecified date A.K. was questioned. He stated that at about 5.30 a.m. on 21 December 2004 police officers had entered his house and asked him to go with them to the ROVD. At first he had been put in an APC and then in an UAZ vehicle in which he had travelled with the policemen. Upon arrival to the ROVD he had been questioned and then released. Having returned home he had learned of Alis Zubirayev’s kidnapping. He had been transferred to the ROVD on his own and had not seen Alis Zubirayev on its premises.

The investigators questioned several other villagers of Chechen-Aul who made no significant statements.

On an unspecified date Mr A., the ROVD head, was questioned. He stated that he was not acquainted with the Zubirayevs. On 21 December 2004 ROVD policemen and servicemen of the military commander’s office of the Groznenskiy District had carried out a special operation to arrest S.-M.K. who had escaped. The servicemen had then questioned his brother, A.K., and released him after a check. Alis Zubirayev had not been arrested in the course of the special operation. The ROVD had sent an UAZ vehicle to carry out the special operation while the military commander’s office had provided an APC.

A number of the ROVD servicemen made similar statements. One of them added that the applicants had contacted him in December 2004 in relation to Alis Zubirayev’s kidnapping. The Government did not disclose the servicemen’s identities.

The investigators sent a number of queries concerning Alis Zubirayev to various State agencies and detention facilities. In reply they were informed that the young man had not been arrested or prosecuted.

The investigation in case no. 44004 was pending. The applicants had been duly informed of all decisions taken during the investigation.

Despite specific requests by the Court the Government did not disclose any documents of the investigation file in case no. 44004. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants, Mr Mehmet Dögüş, Ms Ayşe Dögüş, Mr Veysel Dögüş, Ms Saadet Seyhan (Dögüş) and Ms Safiye Dögüş, are Turkish nationals who were born in 1972, 1966, 1976, 1965 and 1944, respectively, and live in Adana. They were represented before the Court by Mr M. Çinkılıç, a lawyer practising in Adana.

On 8 February 2001 the applicants' plot of land of 652 m² located in the Yüreğir district of Adana was expropriated by a decision of the Adana Governor's office for the construction of a school.

The applicants were paid 10,000,000 Turkish liras (TRL) per square metre of their land as compensation.

On 1 May 2001 the applicants brought an action before the Adana Civil Court for additional compensation.

On 20 November 2001 the Adana Civil Court partially granted the applicants' request after having obtained two expert reports on the value of the land.

On 29 April 2002 the Court of Cassation quashed the judgment of the Adana Civil Court and remitted the case to that court for a revaluation of the land.

On 23 January 2003 the Adana Civil Court partially granted the applicants' request in the light of additional expert reports.

On 15 April 2003 the Court of Cassation quashed the judgment of the Adana Civil Court once again due to the lack of clarity of the expert reports and requested the revaluation of the land.

On 28 October 2003 the Adana Civil Court awarded the applicants additional compensation of TRL 4,171,940,000 on the basis of additional expert reports, plus interest at the statutory rate, running from 10 April 2001.

On 29 March 2004 the Court of Cassation upheld the judgment of the first-instance court.

On 2 July 2004 the administration paid the applicants TRL 13,826,638,792 in additional compensation, together with interest.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Ms Daniela Borisova TenchevaRafailova, is a Bulgarian national born in 1959 and living in Sofia.

In an order of 10 July 2002 the Minister of Health announced, by reference to Article 91 of the 1986 Labour Code (see Relevant domestic and practice law below), a competition for the post of director of the Emergency Medical Centre in Sofia. The order laid down the conditions which the candidates for the post had to fulfil, and the test and the interview which they had to pass. The competition announcement was published on 16 July 2002.

On 1 August 2002 the Minister appointed a commission to make a preselection of the candidates. On 27 September 2002, having earlier laid down the manner in which the test and the interview were to be conducted, he appointed another commission to conduct those.

The applicant applied for the post. She and four other candidates were pre-selected. The five of them took part in the test and the interview. On 14 October 2002 the applicant was informed that she had been ranked second. The candidate ranked fist was Dr G.G. The Minister then issued a decision validating the results of the competition. The applicant objected to this decision but did not receive a reply.

On 24 October 2002 the applicant lodged an application for judicial review of the Minister’s decision with the Supreme Administrative Court. She argued that Dr G.G. did not meet all the criteria laid down in the order of 10 July 2002, because he had not had two hundred hours of training in medical management.

In a decision of 3 February 2003 (опр. № 842 от 3 февруари 2003 г. по адм. д. № 10116/2002 г., ВАС, V о.) a threemember panel of the Supreme Administrative Court declared the application inadmissible. After analysing the matter in some detail, it found that the competition had not been governed by the special rules applicable to some other medical posts, but by the general provisions of the Labour Code relating to competitions. In competitions governed by the Labour Code the Minister acted in a capacity of an employer, not as an administrative authority. Therefore, his decisions relating to the competition were not administrative decisions amenable to judicial scrutiny. This applied a fortiori to the commission which had organised the competition. The applicant could challenge the manner in which the competition had been conducted by means of a civil claim: she could seek a declaration that the contractual relationship between the Minister and Dr G.G. had not come into existence because the competition had been tainted by irregularities.

One judge dissented. He disputed the conclusion that the competition had been governed by the general provisions of the Labour Code and not by special rules. However, even assuming that this had been so, in his view, by taking part in the competition the applicant had sought to exercise her right to work, recognised by the Constitution. Therefore, the refusal to appoint her to the desired post had to have a lawful basis. Such basis could be found in the fact that she had not been ranked first. However, this basis was valid only if the competition had been conducted lawfully. If it was tainted by irregularities, each candidate after the first was injured in the exercise of his labour rights, whereas those rights deserved protection from the courts. Since, in view of the former Supreme Court’s and the Supreme Court of Cassation’s caselaw (see Relevant domestic law and practice below), the applicant would be unlikely to obtain such protection from the civil courts, as suggested by the majority, she was entitled to obtain it from the administrative courts, in order not to be faced with a denial of justice.

The applicant’s subsequent appeal on points of law was rejected by a fivemember panel of the Supreme Administrative Court on 16 June 2003 (опр. № 5921 от 16 юни 2003 г. по адм. д. № 2431/2003 г., ВАС, петчленен св). The court fully agreed with the threemember panel’s reasoning, and went on to say that the dissenting judge’s view that the competition had not been governed by the Labour Code was erroneous, as was his view that the Minister’s decisions in connection with employment competitions were subject to review by the administrative courts. Those decisions did not amount to an exercise of public powers affecting the rights of others, and were therefore not administrative decisions amenable to judicial scrutiny.

On 19 June 2003 the applicant brought a civil claim against the Ministry of Health, seeking a declaration that the competition had been tainted by irregularities and that the resulting employment agreement between the Ministry of Health and Dr G.G. was unlawful. However, on 20 June 2003 the Sofia District Court discontinued the proceedings. On appeal, its decision was upheld by the Sofia City Court on 19 August 2003.

The applicant’s subsequent appeal on points of law was rejected by the Supreme Court of Cassation on 18 December 2003 (опр. № 579 от 18 декември 2003 г. по ч. гр. д. № 569/2003 г., ВКС, ІІІ г. о.). The court found that her claim did not concern an employment dispute, because such disputes were only those between the person who had come first in the competition and the employer. The remaining candidates did not have an employment relationship with the employer. The actions carried out by the employer during a competition were simply preliminary steps for the creation of an employment relationship; they could not be challenged before the courts but merely before the employer whose decision was final. The court went on to say that the applicant did not have the requisite legal interest to seek a declaration that the employment of the person who had won the competition was unlawful. Such a declaration would have no impact on her legal sphere, because she could not expect to be employed unless the person ranked first failed to take up his or her duties.

Section 3(2) of the 1999 Regulations on the organisation and the operations of the Emergency Medical Centre (Правилник за устройството и дейността на център за спешна медицинска помощ) issued by the Minister of Health, provides that the Centre’s director is employed on the basis of a competition conducted in line with the provisions of the Labour Code.

The manner in which employment competitions are to be conducted is governed by Articles 89 to 97 of the 1986 Labour Code.

Article 90 § 1 provides that the posts to be filled by means of a competition must be set forth in a statute or a statutory instrument, or a decision of the employer. Article 90 § 3 stipulates that those posts can be filled only by means of a competition.

Article 91 specifies the contents of the competition notice and the manner in which it should be published, as well as the rights of the candidates to get acquainted with the job description of the advertised post.

Candidates are admitted to the competition by a commission appointed by the employer (Article 93 § 1). Those who are not allowed to take part in the competition must be informed in writing about the reasons for that; they may object before the employer, who rules on the matter by means of a final decision (Article 93 § 2). Another commission then conducts the competition (Article 94), by assessing the qualities of the candidates and ranking only those who have successfully passed the tests (Article 95 § 1). They have to be notified of that within three days (Article 95 § 2). The individuals ranked first are considered as employed from the date when they receive the notice (Article 96 § 1). They then have to take up their duties within two weeks but for good reasons that time-limit may be extended to three months (Article 96 § 2). If they fail to do so, the employment relationship with them is considered as nonexistent, and the individual ranked second is considered as employed (Article 96 § 4).

The former Supreme Court and the Supreme Court of Cassation have held that those who have lost employment competitions cannot challenge those competitions in the civil courts. Such disputes are not employment disputes within the meaning of the Labour Code; nor can they be examined pursuant to claims for declaratory judgment, because the persons concerned do not have the requisite legal interest to bring such claims, as they can not expect to be offered employment even if the competitions are declared unlawful (реш. № 609 от 30 юни 1992 г. по гр. д. № 307/1992 г. ВС, III г. о.; опр. № 319 от 31 май 2005 г. по гр. д. № 219/2005 г., ВКС, III г. о.).

In a line of decisions beginning in January and February 2003, the Supreme Administrative Court adopted the position, initially against the dissent of the same judge who dissented in the applicant’s case, that decisions made by public bodies in connection with employment competitions conducted by them are not administrative decisions subject to judicial review, chiefly because those bodies do not act in their capacity of administrative authorities but are placed on an equal footing visàvis the persons willing to be employed by them (опр. № 590 от 27 януари 2003 г. по адм. д. № 7925/2002 г., ВАС, V о.; опр. № 841 от 3 февруари 2003 г. по адм. д. № 8388/2002 г., ВАС, V о.; опр.№ 844 от 3 февруари 2003 г. по адм. д. № 10741/2002 г., ВАС, V о.; опр. № 845 от 3 февруари 2003 г. по адм. д. № 202/2003 г., ВАС, V о.; опр. № 846 от 3 февруари 2003 г. по адм. д. № 203/2003 г., ВАС, V о.; опр. № 9870 от 4 ноември 2003 г. по адм. д. № 8293/2003 г., ВАС, V о.; опр. № 10238 от 14 ноември 2003 г. по адм. д. № 6090/2003 г., ВАС, V о.; опр. № 6853 от 16 юли 2004 г. по адм. д. № 5694/2004 г., ВАС, IV о.; опр. № 9778 от 24 ноември 2004 г. по адм. д. № 5138/2004 г., ВАС, V о.; опр. № 1650 от 15 февруари 2007 г. по адм. д. № 1249/2007 г., ВАС, V о.; опр. № 1676 от 13 февруари 2008 г. по адм. д. № 1344/2008 г., ВАС, IV о.; опр. № 5860 от 20 май 2008 г. по адм. д. № 4444/2008 г., ВАС, VII о.; опр. № 10511 от 11 септември 2009 г. по адм. д. № 11449/2009 г., ВАС, VII о.).


Violation of Art. 11;Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

In 1990 the applicant founded and became the chairman of the Bulgarian Revolutionary Youth Party („Българска революционна младежка партия“). He ran for parliament in 1990 and in several later elections, unsuccessfully. Apparently he was also a presidential candidate in later elections on that party’s ballot.

At a meeting held on 10 November 1996 in Varna the applicant and fortynine other persons formed a party named Communist Party of Bulgaria („Комунистическа партия на България“). They adopted its constitution and elected its management organs. The applicant was elected the party’s chairman. The party’s aims, set out in the preamble to its constitution, were as follows:

The main aim of the Communist Party shall be the revolutionary change of the Bulgarian society – democratisation of the society as a road to true power of the people. The primary goal of the party shall be the practical improvement of the socialist democracy – broadening of the direct participation of the people in the government of the state; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning; active shift towards selfgovernment of the municipalities and the economic units as a transition towards selfgoverning communities within a society of social homogeneity.

The Communist Party is convinced of the need for the union of the political parties, movements and eminent personalities into one political coalition – ‘Union for National Cooperation ‘Civic Forum’’, as the most proper way out of the societal antagonisms and divisions.

The Party shall advocate a policy of rapprochement between peoples which are at different sociopolitical stages of development; of deepening of the economic, political and cultural ties between them. The Communist Party’s ultimate aim is the ‘constant improvement of society’.

The Communist Party is a party of a new type. It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal – building of a civil society with the economic nature of a society ruled by the principles of scientific socialism and the political nature of a society free of class divisions, political parties and movements: a society in which the vehicle of development shall be the Man – a universally developed and harmonious personality.”

Articles 1 – 8 of the party’s constitution dealt with membership in the party and the members’ rights and obligations. Article 8 set out, inter alia, the grounds for expelling members.

Articles 9 – 26 of the constitution set out the organisational structure of the party and the powers of its organs.

Article 28 of the constitution, which described the party’s symbols, stated, inter alia, that they stood for the “idea of a revolutionary sociopolitical order”.

On 3 December 1996 the applicant, in his capacity of chairman of the party, applied to the Sofia City Court to have it registered.

The court held a hearing on 18 December 1996. It noted that the manner of liquidation of the party had not been provided for in its constitution, that the declarations submitted by the founders were incomplete, and that there were certain other irregularities. Accordingly, it adjourned the case for 26 February 1997 with a view to allowing the party to remedy the deficiencies it had spotted.

In order to rectify the deficiencies noted by the court, the applicant and the other founders held another meeting on 26 January 1997 and decided to amend the party’s constitution. On 17 February 1997 they submitted the amendments and updated declarations to the court, which admitted them in evidence.

A second hearing took place on 26 February 1997.

In a decision of 6 March 1997 the Sofia City Court refused to register the party, holding:

“In the course of the proceedings the court found that the applicants have failed to comply with the requirements of sections 7, 8 and 9(2) of the Political Parties Act [of 1990], in order to make the entering of the party in the register possible. [The case-file contains] minutes from the general meeting of the [party] held on 26 January 1997, which are not duly signed. The introduction to the party’s constitution contains aims which are identical to the aims of other, already registered parties. The party’s structure is not fully and clearly set out [in its constitution]; the powers of its different organs are not clearly described, are repeated in the different provisions of the party’s constitution and thus the powers [of the party’s organs] are not clearly spelled out. The party’s constitution does not specify the manner of termination of membership in the party.”

On 14 March 1997 the applicant appealed to a threemember panel of the Supreme Court.

The court held a hearing on 4 June 1997.

On 9 June 1997 the threemember panel of the Supreme Court upheld the lower court’s decision. It opined:

“The name of the Communist Party of Bulgaria formally does not already exist in the register [of political parties], but it does not set it apart from an already registered party – [the Bulgarian Communist Party], as required by section 8(1) of the [Political Parties Act of 1990], because in fact it contains the same words; their rearranging does not change the purport and the essence of the political party. This name does not individualise it and does not clearly set it apart from another, already registered party.

[The party’s] aims, as indicated in part I of its constitution ... are contrary to section 3(2) of the [Political Parties Act of 1990].

The manner of termination of membership in the party is not set out [in its constitution], contrary to section 8(1) of the [Political Parties Act of 1990].”

On 1 August 1997 the applicant lodged a petition for review with a fivemember panel of the Supreme Court.

A hearing was held on 4 March 1998.

In a final decision of 19 March 1998 the fivemember panel of the Supreme Court dismissed the petition in the following terms:

“The impugned decisions should not be quashed first and foremost because the name of the party – Communist Party of Bulgaria – does not set it apart from other parties, in violation of section 8(1) of the [Political Parties Act of 1990], as correctly found by the two courts below. The name is an individualising feature of the party and for that reason it should not duplicate [the names of] other parties, organisations and movements, which may ... engage in political activities. The rule of section 8(1) of the [Political Parties Act of 1990] concerning the party’s name sets the bounds of the founders’ autonomy and initiative in choosing the name. [The founders] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [of the name] with the name of another party.

In the case at hand the separate words which constitute the party’s name, on the one hand, and the particular wording used, on the other, although not identical to those used in other existing parties’ names, convey a similar meaning. The name “Communist Party of Bulgaria” uses the ideological term “communist”, which term, viewed in a historical context, resembles a party from the not so distant past – the Bulgarian Communist Party – and also resembles the Bulgarian Communist Party ... even though there is a rearrangement of the words...

Regarding the contents of the party’s constitution, as required by section 8(1) of the [Political Parties Act of 1990], the courts [below] have correctly found that the constitution does not indicate the manner of termination of membership in the party. [The constitution sets forth] rules about the admission [of new members], about the members’ rights and the obligations and the [penalties which may be imposed on them], but there are no rules regarding the termination of the membership. Likewise, the powers of the [party’s] organs and its organisational structure are chaotically scattered throughout its constitution.

The [courts below] have correctly found that the aims of the party are contrary to section 3(2) of the [Political Parties Act of 1990]. Part I of the constitution indicates that the main aim of the party [is] the ‘revolutionary change of Bulgarian society’ and the support for the idea of a revolutionary sociopolitical order – part V of the constitution.”

It appears that in Bulgaria at least eight other political parties are registered with the word “communist” in their names, e.g. Bulgarian United Communist Party („Българска единна комунистическа партия“), Bulgarian Communist Party of the Bolsheviks („Българска комунистическа партия на болшевиките“), Renewed Bulgarian Communist Party („Обновена българска комунистическа партия“), Bulgarian Communist Party “Georgi Dimitrov” („Българска комунистическа партия ‘Георги Димитров’“), Bulgarian Communist Party “Fatherland” („Българската комунистическа партия ‘Родина’“).

In the beginning of 1997 the Sofia City Court registered a party named Communist Party. On 22 April 2000 it changed its name into Communist Party of Bulgaria, which fact was likewise registered by the Sofia City Court in a decision of 16 November 2000, and published in the State Gazette on 22 November 2000 (ДВ, бр. 106 от 22 декември 2000 г.).

The relevant provisions of the Constitution of 1991 read as follows:

“1. Citizens may freely associate.

Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited.

The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.”

The relevant provisions of the Political Parties Act of 1990 („Закон за политическите партии“), as in force at the relevant time, read:

“No political party shall be founded:

[which is] aimed against the sovereignty and the territorial integrity of the country, [or] the rights and freedoms of its citizens;

whose aims are contrary to the Constitution and the laws of the country;

[which is based] on ethnicity or religion, or [aims] to spur racial, national, ethnical or religious hatred;

which advocates a fascist ideology, or tries to achieve its goals through violence or other unlawful means.”

“A political party shall be formed at a founding meeting upon the agreement of at least fifty enfranchised citizens. The founding meeting shall adopt its constitution and elect the management organs.”

“The constitution of a political party shall set forth: its name, which shall set it apart from other parties; its seat; its aims and objectives; the manner of becoming a member and of terminating the membership; the rights and obligations of the members; the managing organs; the party’s symbols; the sources of financing, as well as the manner and conditions for the party’s liquidation.”

“1. The political party shall be entered in a separate register kept by the Sofia City Court, on application by the organ which represents it according to its constitution.

The application shall be accompanied by copies of: the minutes of the founding meeting, the party’s constitution, and a list of the names and addresses of the members of the party’s managing organ, which represents it according to its constitution.

“A political party ceases to exist:

when it is dissolved by decision of the Supreme Court [of Cassation].”

“1. [A political party may be dissolved] upon the proposal of the Chief Prosecutor, if the party engages in activities which run counter to section 3 [of this Act].

The decision of the Supreme Court [of Cassation] to dissolve a party may be appealed to a five-member panel [of that court].”

By section 12(1) and (2) of the Political Parties Act of 2001, in force until April 2005, a party could be dissolved by decision of the Sofia City Court on the application of a public prosecutor if, inter alia, the party systematically contravened the Act’s provisions, its activities ran counter to the provisions of the Constitution, or it had been declared unconstitutional by the Constitutional Court. By section 40(1) and (2) of the Political Parties Act of 2005, presently in force, the Sofia City Court, acting pursuant to the application of a public prosecutor, may order the dissolution of a party if its activities systematically contravenes the Act’s requirements or the provisions of the Constitution.


ORGANISATION NATIONALE DES SYNDICATS D'INFIRMIERS LIBÉRAUX (ONSIL) v. FRANCE

The applicant is a trade union whose head office is in Toulouse and whose object is to defend the interests of self-employed nurses. It is represented before the Court by Mr Christian Bettinger of the Paris Bar.

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

Since the enactment of the Law of 3 July 1971, relations between members of the medical profession, notably nurses, and the social-security bodies have been governed by collective bargaining agreements made between the trade unions representing the various branches of the profession and the social-security bodies. The agreements do not become effective until they have received relevant ministerial approval.

After the Conseil d’État had twice quashed decrees approving the collective bargaining agreement applicable to the nursing profession (in judgments of 17 December 1993 and 29 December 1995) a third agreement was entered into on 5 March 1996 and approved by interministerial decree on 10 April 1996.

Immediately after that agreement was signed, the applicant and several other trade unions expressed opposition to it and indicated that they intended to lodge an appeal in the courts once the ministerial decree approving the agreement had been published in the Official Gazette.

On 28 May 1996 the French Parliament adopted Law no. 96-452 implementing various health, welfare and regulatory measures. Section 59 of the Law provided: “The ... decree of 10 April 1996 approving the national collective bargaining agreement entered into with the nursing profession on 5 March 1996 is hereby ratified”.

On 21 June 1996 the applicant lodged an application for judicial review with the Conseil d’État seeking an order quashing the decree of 10 April 1996 as being ultra vires and an order for the State to pay it 45,000 French francs for the costs incurred. In its written submissions of 9 October 1996 the applicant maintained in particular that section 59 of Law no. 96-452 contravened Article 6 § 1 and Article 13 of the Convention.

On 13 June 1997 the Conseil d’État dismissed that application on the ground that: “by virtue of the provisions [of Law no. 96-452], which entered into force before the application was lodged, the lawfulness of the decree which the applicant seeks to have quashed cannot in principle be challenged by way of judicial review as being an ultra vires act”. As to the argument that the statute concerned was incompatible with the provisions of the Convention, the Conseil d’État held that challenging the lawfulness of the impugned regulatory measure did not come within the scope of the Articles relied on.


Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in 1948 and lived in Warsaw.

On 17 September 1997 the applicant was arrested by the police. On 18 September 1997 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had been involved in drug trafficking as part of an organised criminal gang. In particular, the applicant was suspected of having participated in the recruitment of persons used for international drug trafficking.

The applicant’s pre-trial detention was extended on several occasions.

On 15 May 1998 the applicant was indicted before the Warsaw Regional Court.

The applicant, who had suffered two heart attacks in 1993 and 1995, submitted that his health deteriorated after his arrest. On 22 July 1998 he consulted a cardiologist. On 8 September 1998 the Medical Panel (Komisja Lekarska) decided that there were no reasons militating against the applicant’s detention, provided that the detention centre in which he was detained possessed a hospital wing.

In September 1998 the applicant and several co-accused were indicted before the Warsaw Regional Court (Sąd Okręgowy).

On 22 January 1999 the applicant consulted a non-prison doctor who prescribed a coronary angiography (koronografia). The applicant submitted that he had not been informed of this.

On 1 February 1999 the Medical Panel again found that the applicant could be held in a detention centre if it had a hospital wing.

On 4 August 1999 the applicant was again examined by a nonprison doctor who confirmed the need for a coronary angiography. The applicant submitted that the prison authorities refused to carry out this procedure. He complained about this to the Helsinki Foundation for Human Rights in Warsaw.

Between 18 and 31 August 1999 the applicant was treated in the hospital wing of the detention centre.

On 23 August 1999 the Warsaw Regional Court extended the applicant’s detention, finding that the grounds for it remained valid. On the same date the court dismissed the applicant’s request for release finding that the applicant’s state of health was not incompatible with detention.

The applicant’s detention was subsequently extended by the Supreme Court on 16 September 1999, on the ground of the reasonable suspicion against him.

In October 1999 the trial court decided to return the case to the prosecutor and to join the investigation to another case concerning organised crime. On 21 October 1999 the Warsaw District Court ordered the applicant’s detention in connection with this set of criminal proceedings.

On 2 November 1999 the prison authorities replied to the Helsinki Foundation regarding the applicant’s health care. The authorities stated that the applicant had been examined by doctors on several occasions and that the cardiologist had not ordered the coronary angiography but had only suggested it as one of several possible treatments. The applicant’s state of health did not preclude detention and he could receive any necessary treatment in the hospital wing of the detention centre. They reiterated that the applicant was detained in a detention centre which had hospital facilities and that, if necessary, he would be hospitalised.

On 19 November 1999 the applicant was transferred to the Łódź detention centre, which had no hospital wing. The applicant argued that this was in reprisal for his complaint to the Helsinki Foundation. In March 2000 the applicant lost consciousness and was transferred to the Łódź Prison Hospital, where he remained for 10 months.

On 6 January and 24 March 2000 the Warsaw Regional Court, upon an application from the Wrocław Regional Prosecutor (Prokurator Okręgowy), further extended the applicant’s pretrial detention, relying on the reasonable suspicion that he had committed the offences in question and on the complexity of the case, which justified the continuation of the investigation.

On 7 April 2000 the Warsaw Court of Appeal (Sąd Apelacyjny), on an application from the prosecutor, decided to further extend the applicant’s detention until 20 October 2000. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation. Finally, the court found no evidence that the applicant, and four other co-accused, should be released from detention due to their various health conditions. The court added, however, that it was for the prosecutor to order a medical examination of the accused and to reach a decision regarding their further detention.

On 8 June 2000 the Supreme Court (Sąd Najwyższy) decided to amend the Court of Appeal’s decision and extended the applicant’s detention pending the outcome of the investigation until 10 October 2000.

On 3 October 2000 the Warsaw Court of Appeal, on another application from the appellate prosecutor, decided to extend the applicant’s pre-trial detention, and that of fourteen co-accused, until 10 February 2001. The court repeated the reasons given in previous decisions.

On 4 October 2000 a coronary angiography and other tests were carried out in Łódź University Hospital. The applicant submitted that the results of the tests provided evidence of his very serious state of health and proof that his life was in danger.

On 14 November 2000 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 3 October 2000 extending his detention. The appellate court, referring to the applicant’s state of health, established that he could be detained and treated in the prison hospital until the date of the surgery.

On 7 December 2000 the applicant was examined by doctors from Łódź University Hospital, who ordered that he should undergo heart surgery in a non-prison hospital. A medical certificate of 24 January 2001, issued by Łódź Prison Hospital, confirmed the need to carry out a coronary artery bypass graft (CABG, a so-called heart bypass operation).

On 24 January 2001 the applicant was transferred to the Mokotów Detention Centre in Warsaw, as the surgery was to be carried out in the Anin Institute of Cardiology.

On numerous occasions the applicant applied to be released from detention. He justified these requests by referring to the state of his health and the fact that his imminent surgery could not be carried out in the hospital wing of the detention centre but necessitated his release from detention. Nevertheless, on 6 February 2001 the court further extended the pretrial detention of the applicant and his co-accused. The decision did not contain any particular reference to the applicant’s health.

On 27 April 2001 the applicant was indicted before the Warsaw Regional Court.

In April 2001 the applicant was examined by doctors in the Anin Institute of Cardiology, who agreed to carry out laser heart surgery on the applicant.

On 15 May 2001 the Warsaw Court of Appeal again extended the applicant’s detention. The court found:

“In the instant case, [the applicant] was arrested on 17 September 1997 and detained on remand on 18 September 1997 by the decision of the Warsaw District Court.

On 9 May 2001 the pre-trial detention of 22 co-accused was extended until 11 October 2001. The procedural grounds therefore justify the extension of detention also with respect to [the applicant] until 11 October 2001. Moreover, there are no grounds for lifting his pre-trial detention under Article 259 of the Code of Criminal Procedure.

As [the applicant’s] pre-trial detention has lasted for over 3 years and 6 months, it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [Polish Code of Criminal Proceedings] and Article 6 of the [Convention] are respected - that is, the right to a trial within a reasonable time.”

The applicant lodged an appeal against the decision but on 12 June 2001 the Warsaw Court of Appeal dismissed it.

The Anin Institute of Cardiology scheduled laser heart surgery on the applicant and ordered that he be admitted to the Institute on 27 July 2001. The applicant’s representative submitted that the applicant was never informed of this. The Government submitted that the surgery could not take place on that date on account of prolonged renovation work to the Institute.

Between 8 August and 10 September 2001 the applicant was hospitalised in the Warsaw prison hospital for pneumonia.

On 5 September 2001 the Anin Institute of Cardiology sent a letter to the applicant, informing him that the second appointment for his laser heart surgery had been scheduled for 21 September 2001. The applicant submitted that the letter was delayed and that he had been informed about it after the date in question. From the copy of the envelope submitted by the applicant’s wife, it appears that the letter was posted on 10 September 2001; a stamp indicates that it was delivered to the registry of the Mokotów Detention Centre on 11 September 2001 [Sekretariat, Areszt Śledczy Warszawa; 11 Wrz. 2001]. The envelope is marked “registered post - v. urgent” [polecony – b. pilne] and contains the following stamp “Censored 24.09.01” [Ocenzurowano]. The Government maintained that this letter never arrived at the Mokotów Detention Centre and that the authorities had not been aware that the Institute had scheduled the date of the applicant’s surgery.

The Anin Institute of Cardiology again rescheduled the date of the applicant’s heart surgery and gave him an appointment for 26 October 2001. It appears that this notification was delivered to the detention centre by the applicant’s lawyer in person.

On 1 October 2001 the applicant was examined by the Medical Panel, which gave a decision on the same date. The decision contained a reference to his medical record and the information that he would be admitted to undergo surgery at the Anin Institute of Cardiology on 26 October 2001. The decision states:

“16. The Panel’s decision -

It is necessary to change the preventive measure.

The grounds for the decision -

The patient requires surgical treatment at the Anin Institute of Cardiology. The date of admittance to the Institute is scheduled for 26 October 2001. Further ... detention is a threat to the patient’s health.”

This decision of the Medical Panel was not sent to the trial court until a later date (see paragraph 44 below).

On 5 October 2001 the Warsaw Court of Appeal extended the pretrial detention of the applicant and the other co-accused for a further four months. The court did not examine the applicant’s state of health or any circumstance that would concern him individually.

On 12 October 2001 Dr M.M., from the hospital wing of the Mokotów Detention Centre, issued a medical certificate, which was sent by fax to the trial court on 15 October 2001. The certificate stated:

“The prisoner’s complaints:

Has been treated for many years for coronary thrombosis, hypertension. Had suffered heart attacks. Recent effort-related chest pain.

Established during examination:

Conscious, sound blood circulation and respiration ...

Diagnosis:

Ischaemic heart disease, has had heart attacks, currently has relatively sound blood circulation. Had pneumonia.

Conclusions:

At present he can participate in the court’s hearings. The patient was examined by the Medical Panel on 1 October 2001.”

On 16 October 2001 the trial against the applicant and forty-four coccused started before the Warsaw Regional Court. The applicant was brought to the courtroom to attend the hearing of 16 October 2001. At the hearing the court informed the applicant’s lawyer that a medical certificate of 12 October 2001 had been submitted on the previous day. In the light of the certificate, the court dismissed the applicant’s request to sever the charges against him, holding that his health did not justify a separate examination of the case.

The applicant attended the second hearing on 18 October 2001.

At the next hearing, held on 19 October 2001, the applicant was heard and the statements given by him at the investigation stage were read out. The trial court adjourned the hearing until Monday 22 October 2001.

On 22 October 2001 the applicant was brought to the court room, where he lost consciousness before the hearing began. An ambulance was called. At 9.30 a.m. he was transferred back to the hospital wing of the Mokotów Detention Centre. He was examined by a doctor, who considered that he did not require hospitalisation but was unfit to participate in the hearing on that day. After examination in the hospital wing the applicant was transferred to his cell in the detention centre.

The hearing started later than scheduled, due to the commotion caused by the applicant’s fainting and the arrival of the ambulance. The presiding judge enquired about the applicant’s health by calling the Mokotów Detention Centre and the Anin Institute of Cardiology. From the latter the judge learned that the applicant’s admittance to the Institute was scheduled for 26 October 2001. The judge was also informed by the detention centre’s authorities that the applicant had been examined by the Medical Panel on 1 October 2001 but that the report had not yet been confirmed by the relevant medical authorities, and thus could not be submitted to the court. Nevertheless, at the second break in the hearing, the Mokotów Detention Centre sent the presiding judge, by fax, the Medical Panel’s decision, which concluded that the applicant’s continued detention represented a risk to his health (see paragraph 37 above).

On 22 October 2001 at 9.30 a.m. the applicant was examined by a doctor from the hospital wing of the detention centre on account of a worsening of his health. The doctor issued a certificate stating that the applicant did not require hospitalisation but was unfit to participate in the hearing on that day.

At 3.45 p.m. on 22 October 2001 the applicant was taken from his cell to the hospital wing of the Mokotów Detention Centre; he was unconscious. The medical team managed to resuscitate the applicant, so that he began breathing on his own again and his heart beat was restored. They also attempted to locate a hospital that would admit him. The applicant was taken in a serious condition to hospital in Lindley Street, Warsaw, where he died on 25 October 2001 without regaining consciousness.

On 22 October 2001 the trial court decided to examine the charges against the applicant in a separate set of proceedings, as his health prevented him from participating in the hearings. The court further decided to release the applicant from detention on 26 October 2001 and to transfer him on that date to the Anin Institute of Cardiology for surgery.

On 8 November 2001 the Warsaw Regional Court decided to discontinue the criminal proceeding against the applicant on the ground that he had died on 25 October 2001. On 10 August 2002 the trial court convicted thirty-seven defendants and sentenced them to prison terms varying from 2 to 12 years.

On 30 October 2001 the applicant’s wife requested the Warsaw District Prosecutor to start an investigation into the applicant’s death. On 12 November 2001 the Helsinki Foundation for Human Rights made a similar request, informing the prosecutor that the applicant had not received adequate medical care in the Mokotów Detention Centre.

On 31 October 2001 a post-mortem examination of the applicant’s body was carried out by the Warsaw Medical Academy (Akademia Medyczna w Warszawie). The examination concluded that the cause of the applicant’s death was acute coronary insufficiency, given the advanced stage of his heart disease.

On 20 December 2001 the Warsaw District Prosecutor initiated an investigation into the allegations that the applicant’s death had been caused by the failure of the doctors in the Mokotów Detention Centre to secure him adequate medical care.

On 13 February 2002 the prosecutor heard the applicant’s wife. She described how her husband’s health had constantly deteriorated, as observed by her during her regular bi-monthly visits. His serious health problems started when he was transferred to the Łódź Detention Centre, where there was no hospital facility. After he lost consciousness he spent several months in a hospital, and at that time he underwent a coronary angiography. On his return to the Warsaw Detention Centre, his health deteriorated further and he had been coughing badly, and suffered from chest pain. His complaints, however, were dismissed on each occasion by the prison doctor, a general practitioner. Only after collapsing 6 months later was he transferred to the Warsaw Prison Hospital, where he was diagnosed with pneumonia and treated accordingly. At that time it was recommended that he undergo heart bypass surgery. During the hearings which started a few days before his death the applicant was in very poor health. The applicant’s wife also testified that he had received notification about the first scheduled operation in the Anin Institute of Cardiology, set for 21 September 2001, but only after that date. She went to the Anin Institute of Cardiology to obtain the second appointment for 26 October 2001, which she personally transmitted to the applicant’s lawyer so that he could notify the detention centre. However, the applicant passed away before that date.

On 28 March 2002 the prosecutor heard the Head of the Warsaw Prison Hospital. She testified that the applicant had stayed in her ward until 10 September 2001 because he had pneumonia and was being prepared for a bypass operation, to be carried out in the Anin Institute of Cardiology. Since the operation could not be carried out at that time, the applicant was returned to his cell in the detention centre.

On the same date the prosecutor questioned a doctor working at the prison hospital, who was consulted by the applicant in 1997, on two occasions in 1998, on one occasion in 1999 and on 2 July 2001.

On 29 March 2002 the prosecutor heard another doctor, employed in the prison hospital, who had treated the applicant during his stay in the hospital, that is, until 10 September 2001. Like the previous witness, this doctor did not believe that the applicant had been simulating, had complained excessively or had not been following the doctor’s recommendations.

On 29 March and 10 September 2002 the prosecutor heard Dr M.M. who worked in the hospital wing of the Mokotów Detention Centre. He stated that, according to a note made by him in the applicant’s medical record, on 27 September 2001 he learned that the Anin Institute of Cardiology had decided to admit the applicant. He forwarded this request to the prison authorities, as it was necessary to obtain a decision from the Medical Panel. The prosecutor showed the witness a copy of the letter from the Anin Institute of Cardiology of 5 September 2001, stating that the date of the applicant’s admittance to hospital was scheduled for 21 September 2001. The witness was unable to ascertain whether he had previously seen this letter or whether his annotation in the applicant’s medical record of 27 September 2001 had been made in connection with it.

On 4 April 2002 a doctor from the Anin Institute of Cardiology was heard by the prosecutor. She testified that in March 2001 the Mokotów Detention Centre requested the Institute to examine the applicant. He was diagnosed with coronary thrombosis and recommended for a laser operation. The witness stated:

“On 27 June 2001 a letter was sent to the detention centre with a request to stop administering aspirin to Mr Dzieciak; it also set the date of his admittance to the Institute for 6 July 2001. The patient did not show up. Again the patient was invited for 21 September 2001 – he did not turn up. The third summons was for 26 October 2001 – he did not show up. We received information that the patient had died on 25 October 2001 (we received this information from a judge). As far as I know the patient did not show up because he had not obtained leave from the detention centre, and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that (moreover, we had repair work going on at that time).”

The witness also stated that the applicant’s wife, who had apparently learned about the planned date of the operation, had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre. The hospital’s administration had contacted the Mokotów Detention Centre and learned that the decision on whether or not to grant the leave would be taken before 26 October 2001. The doctor also confirmed that a judge from the Regional Court had called the hospital on 22 October 2001, enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court.

Finally, on 4 April 2002 the prosecutor questioned another doctor from the prison hospital, who had treated the applicant on 20 and 22 October 2001. He testified that on 22 October 2001 the applicant was brought back from the court hearing at 9.30 a.m. suffering from chest pain. He conducted an ECG test and administered medication so that the applicant’s condition was stable. The witness considered that the applicant had not required hospitalisation but issued a certificate stating that he should not attend the hearing on that day. At 3.33 p.m. on the same day the applicant was brought from his cell on a stretcher; he was unconscious, had no heart beat and was not breathing. After resuscitation his heart beat was restored and he began to breathe independently. The witness ordered an ambulance and contacted hospitals to find one which would admit the applicant. Finally, the fourth hospital, located on Lindley Street, agreed to admit the applicant.

The prosecutor also requested the Mokotów Detention Centre to clarify when the letter of 5 September 2001 from the Anin Institute of Cardiology, informing the authorities of the applicant’s scheduled admittance on 21 September 2001 for surgery, had reached the detention centre. According to the Government, the Head of the Mokotów Detention Centre replied that there was no evidence that such a letter had ever arrived at the detention centre; however, the letter informing about the next date for surgery, scheduled for 26 October 2001, had reached the detention centre on 26 September 2001.

On 14 August 2002 the Anin Institute of Cardiology confirmed to the prosecutor that the letters indicating the dates of the applicant’s admittance to the Institute (for 6 July and 21 September 2001) had been sent by ordinary mail to the Mokotów Detention Centre.

On 23 September 2002 the prosecutor ordered the Gdańsk Medical Academy to prepare an expert opinion. The prosecutor asked the experts to answer following questions:

“1. Was the death of Zbigniew Dzieciak a consequence of:

- unsuccessful medical treatment for which nobody can be held responsible (niezawinione niepowodzenie lekarskie),

- medical malpractice,

- failure to apply due diligence during his medical treatment at the Mokotów Detention Centre and hospital in Lindley Street,

- other circumstances, different from the above?

Did the state of health of Zbigniew Dzieciak allow him to remain in the detention centre and to participate in the trial, including lengthy court hearings?”

In 1 July 2003 the experts submitted their opinion to the prosecutor. The experts relied on the applicant’s medical file and on the post-mortem examination. They concluded as follows:

“...in answer to question no. 1, we consider that [the applicant’s] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file, we find that there was no medical malpractice during the period between the applicant’s arrest and his death. On the basis of the submitted documents we cannot perceive any lack of diligence during his treatment in the detention centre and in hospital in Lindley Street. We have, however, reservations about the fact that the date of the applicant’s cardio-surgical intervention was rescheduled twice (a conclusive elucidation of the grounds for this ‘postponing’ is not within the competence of the undersigned experts). Nevertheless, the type and extent of changes in the heart muscle, as established by the post-mortem examination, do not allow [us] to conclude if, and to what extent, the surgery would have led to improvement in the functioning of the applicant’s left ventricle of the heart.

Ad 2.

In response to the second question, it should be noted that when the applicant’s health was clearly deteriorating and in connection with the approaching surgery, the Medical Panel gave a decision on the necessity of changing the preventive measure, as a continued stay in detention constituted a threat to the patient’s health. On the basis of the documents collected, it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure.

We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.”

On 28 August 2003 the Warsaw District Prosecutor discontinued the investigation. The decision reads:

“On 12 November 2001 the Helsinki Committee informed the District Prosecutor of the possibility that an offence had been committed under Article 231 or 160 of the Criminal Code. It appears from the request that on 22 October 2001 the applicant was called from his cell for transferral to the court hearing, and that his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died.

Following the post-mortem examination the expert from the Warsaw Medical Academy established that the cause of [the applicant’s] death had been acute coronary insufficiency, given the advanced stage of [his heart disease]. In the expert’s opinion there was no evidence that would allow [him] to establish that the applicant’s pneumonia had had a bearing on his death. [The Head of the Prison Hospital] testified that [the applicant] had been on her ward once – he was admitted on 8 August 2001 with symptoms of pneumonia and was released on 10 September 2001 in good condition. He was again admitted to the hospital on 22 October 2001 and he was transferred to hospital in Lindley Street after 5.20 p.m.

An expert opinion from the Gdańsk Medical Academy was ordered for the purpose of establishing the circumstances of [the applicant’s] death.

From the submitted expert opinion it appears that the applicant’s death was a consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant’s arrest and his death, could not perceive any [missing: lack of diligence] during his treatment in the detention centre and subsequently in hospital in Lindley Street. In the experts’ view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.

In the light of the above it must be established that the evidence gathered does not allow the conclusion that [the applicant’s] death was a consequence of the actions or omissions of third persons.

Accordingly it has been decided as above.”

The applicant’s wife, supported by the Helsinki Foundation, lodged an appeal against this decision. She complained that the prosecutor had failed to examine thoroughly the allegations raised in her request to initiate the proceedings. In particular, there had been no examination of why, having lost consciousness in the court room on 22 October 2001, the applicant was not immediately taken to hospital but was returned to the detention centre.

On 19 January 2004 the Warsaw District Court dismissed the appeal, reiterating the prosecutor’s findings that the applicant’s death was “unsuccessful medical treatment”. The court had not made any new findings relating to the course of the events. It noted that the information about the surgery scheduled for 21 September 2001 had not reached the Mokotów Detention Centre. However, on 26 September 2001 the detention centre received information that the surgery could take place on 26 October 2001, provided that the applicant received authorisation. The court further established that on 1 October 2001 the Medical Panel had given a decision finding that a further stay in detention would pose a risk for the applicant’s health; that ruling had been validated by the Head of the Panel on 22 October 2001. Previously, on 16 October 2001, the Head Doctor of the Prison Medical Service had ordered that the decision be supplemented by a copy of the results of the coronary angiography. On 23 October 2001 the Panel’s decision was faxed to the trial court, at whose disposal the applicant remained. The court concluded:

“Taking into account the above circumstances, and the fact that it was not possible to establish a causal link between the applicant’s participation in the trial [and the deterioration in his health] or to establish whether, and to what extent, the surgery would have led to an improvement in the functioning of the applicant’s left ventricle of the heart, it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence, and that the prosecutor’s decision was based on Article 7 of the Code of Criminal Procedure. Accordingly, the impugned decision shall be upheld.”

On 12 July 2002 the applicant’s wife lodged a civil claim with the Warsaw Regional Court, seeking compensation in connection with her husband’s death. She maintained that her late husband had not received proper medical treatment in the detention centre and had been obliged to participate in the hearings despite his poor state of health. The applicant’s wife applied for legal aid, submitting that her monthly income, comprising her salary as a cleaning lady and disability benefit for her daughter, who suffered from cerebral palsy, was equivalent to EUR 370. The applicant’s representative submitted that the court had exempted her from paying court fees but had dismissed her application for legal aid.

On 26 January 2004 the Warsaw Regional Court dismissed the claim. The court examined the treatment that the applicant had undergone since his arrest in 1997 and the prosecutor’s case file concerning the investigation into the applicant’s death. It found that the State Treasury could not be held liable for damage, as it had not been established that the applicant’s death had been caused by unlawful actions or omissions of the detention centre officials. In addition the court found that the applicant had failed to prove that her financial situation had deteriorated as a result of her husband’s death.

The applicant’s wife appealed against the judgment.

On 14 November 2004 the Warsaw Court of Appeal dismissed the appeal. The court agreed with the first-instance court’s assessment that the applicant’s wife had not sustained damage as a consequence of her husband’s death, and that her claim had thus been ill-founded. The court also dismissed as unsubstantiated the applicant’s complaints that the prison authorities had contributed to her husband’s death by failing to provide him adequate medical care.

The applicant failed to lodge a cassation appeal with the Supreme Court against that judgment. She did not apply to a court to have a legal-aid lawyer appointed for the purpose of lodging such appeal on her behalf.

The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other, socalled “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. In so far as relevant, Article 257 provides:

“1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.”

The relevant part of Article 259 provides:

“1. If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque

The applicant, Mr Virginijus Česnulevicius, is a Lithuanian national who was born in 1956 and lives in Vilnius.

In 1990, after the Republic of Lithuania had re-established independence, the applicant and J.U. started working at the Department of National Defence (Krašto apsaugos departamentas).

On the evening of 12 January 1991 the Soviet army launched military operations against Lithuania. Soviet troops entered the television tower of Vilnius and the headquarters of Lithuanian public television, and also tried to take the Lithuanian parliament. Massive crowds of Lithuanian citizens came to the rescue of the institutions of the newly independent Lithuania. Thirteen Lithuanian civilians were killed and hundreds injured during the clash with the Soviet army (see Ždanoka v. Latvia [GC], no. 58278/00, § 20, ECHR 2006IV). At the time of the events, the applicant and J.U. were on the premises of the Lithuanian parliament building, where they worked as guards.

In 2004 a publishing house released a book by J.U. According to the applicant, it contained false and defamatory information about him.

On 12 July 2004 the applicant addressed the publishing house requesting the opportunity to respond critically to the content of the book. In his letter to the publisher the applicant described J.U. negatively and criticised J.U.’s actions during the events of January 1991. The applicant’s letter contained allegations that J.U. had deserted his post at the barricades of the Parliament building and that he had not passed the psychiatric check for permission to carry a gun.

Following these events, on 2 March 2005 J.U. brought a private prosecution against the applicant for defamation. The applicant made a counterclaim, alleging that J.U. had defamed him in his private prosecution statement.

The applicant states that during the initial examination of the case by the Vilnius City First District Court he was undergoing medical treatment. He asked for a longer break before the later hearings, for health reasons. The applicant states that the judge suggested that he did not have to be present at the final two hearings of his case, at which J.U. was due to give his final submissions and judgment would be adopted. The applicant admits that no request for a longer break was noted in the official hearing record. Although the applicant then informed the court that he would not be present at the two final hearings, they were not postponed.

On 5 December 2005 the Vilnius City First District Court found the applicant guilty of defamation, given that his statements that “J.U. had deserted his post during the tragic events of January 1991” and “J.U. had not passed the psychiatric check for permission to carry a gun” had not been proved. The applicant was fined 1,250 Lithuanian litai (LTL, 362 euros (EUR)) and ordered to pay compensation for non-pecuniary damage in the sum of LTL 1,000 (EUR 290). The court terminated the proceedings in so far as the counterclaim by the applicant was concerned. J.U. and his lawyer, as well as the applicant, were present at the hearing.

In finding the applicant guilty, the court noted that the applicant had failed to submit credible evidence in support of his statement that J.U. had deserted his post. In this connection the court noted that in an official document J.U.’s superior had given a positive evaluation of J.U.’s behaviour during the events of January 1991. The submissions of one independent witness, J.G., questioned in the courtroom, were also taken into account. The court further established that the statement that J.U. had not passed the psychiatric check for permission to carry a firearm was false, given that the medical records showed that he had passed the examination in respect of his mental health.

The applicant states that he saw the record of the hearing of 5 December 2005 only on 8 December 2005, at approximately 3 p.m.

The applicant appealed, mainly arguing that the trial court had distorted the testimony of J.G., had misunderstood the circumstances surrounding the events of January 1991, and assessed the evidence and applied domestic law wrongly.

On 11 April 2006 the Vilnius Regional Court upheld the applicant’s conviction. In the appellate proceedings the applicant was represented by a lawyer. As the transcript of the hearing on appeal shows, the court deemed it unnecessary to question witness J.G., who had testified before the trial court, again, but granted the applicant’s request to add written evidence to the file and to question two more witnesses, J.Ž. and G.G. One more witness, A.Z., was questioned at the request of J.U.

The Vilnius Regional Court dismissed the applicant’s argument that the official transcript of the hearing was inaccurate, finding that the applicant had had the right to comment on the record of the hearing within three days of its signing by the judge, if he believed there were mistakes or inconsistencies. However, he had not made use of this right. The court reviewed the findings of the lower court and decided that the latter had assessed the evidence correctly and reached reasoned conclusions. The appellate court also emphasised that J.G., who had testified before the trial court at the request of the applicant, could not unambiguously confirm the fact that J.U. had left his post at the barricades in January 1991. Another witness, A.Z., had testified that J.U. had not deserted his post. The appellate court also noted that written evidence - a report by J.U.’s superior - stated that during the events of January 1991 J.U. was “holding firm”.

Lastly, the court observed that the lower court had correctly concluded that the assertion that J.U. had not passed the psychiatric check was a pejorative allusion to his mental health, and thus was damaging to his reputation. No procedural violations were found. This decision was final, as there is no right to appeal on points of law under the domestic law in private prosecution cases.

Subsequently, the applicant unsuccessfully tried to reopen the proceedings, alleging that the courts were unfair. His requests were dismissed by the public prosecutor and the Vilnius City Second District Court as unsubstantiated; they found no procedural irregularities when handling the applicant’s case at both levels of jurisdiction.

Articles 57-29 of the Code of Criminal Procedure provide that a participant in the criminal proceedings may raise an objection on the grounds of partiality of a judge.

Article 261 §§ 4-8 of the Code of Criminal Procedure provides that a transcript of a hearing must be prepared and signed by the judge who heard the case and the recording officer of the hearing no later than three days after the hearing took place. The participants in the proceedings have the right to acquaint themselves with the transcript within three days of its signing. Any objections as to the accuracy of the transcript must be put to the judge who heard the case. If the judge agrees with the objections, he or she adds them to the transcript of the hearing. Should the judge deem that the original transcript was accurate, he may dismiss the participant’s objections by adopting a ruling in a new hearing.

Article 367 § 3 of the Code of Criminal Procedure provides that an appeal on points of law may not be lodged in cases of private prosecution.


Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants, Volkan Ükünç and Deniz Güneş, are Turkish nationals. They were both born in 1980 and live in Edirne, Turkey.

On 8 February 1996 the applicants were taken into custody by the Edirne Anti-Terror Branch on suspicion of being members of an illegal organisation, namely, the DHKP-C (Revolutionary People's Liberation Party-Front). The applicants were kept in custody until 12 February 1996. They were interrogated by the police on 10 February 1996 in the absence of their lawyers.

On 12 February 1996 the applicants were brought before the Public Prosecutor and then before a judge. On both occasions they repeated their statements of 10 February 1996. The applicants were released on the same day. They were not represented by lawyers.

On 11 March 1996 the public prosecutor at the Istanbul State Security Court filed an indictment with the court and accused the applicants and three other co-accused of aiding and abetting an illegal terrorist organisation and requested the court to apply Article 169 of the Turkish Criminal Code and section 5 of Law No. 3713 (the Prevention of Terrorism Act 1991 as amended).

On 17 April 1996 the Edirne Assize Court requested the applicants' observations on the charges against them for submission to the Istanbul State Security Court. According to the minutes of the hearing which took place before the Edirne Assize Court, the applicants did not want to be represented by lawyers. They challenged for the first time the authenticity of the statements which they gave to the police, to the public prosecutor and to the judge.

On 21 May 1996 the applicants requested the Istanbul State Security Court not to require them to appear at any of the hearings since they had to attend school. This request was upheld by the court and the applicants were legally represented by four lawyers in their absence in subsequent hearings.

On 8 April 1997 the Istanbul State Security Court found the applicants guilty of aiding and abetting the DHKP-C, and sentenced them to two years and six months' imprisonment. The court pointed out that the applicants' defence statement to the Edirne Assize Court alleging that they had been forced to repeat the prepared confession statements when brought before the public prosecutor and the judge on 12 February 1996 was unconvincing. The court concluded that the applicants aided and abetted the DHKP-C by painting a slogan on a wall, distributing publications supporting DHKP-C and putting up a placard in the entrance of a shop.

The applicants appealed on the ground that they were convicted on the basis of the statements they had given under duress and that there was, therefore, no concrete evidence on which they could be convicted.

On 9 December 1997 the Court of Cassation dismissed the appeal lodged by the applicants and upheld the State Security Court's decision. The Cassation Court noted in its decision that the applicants' lawyers, despite having requested the Cassation Court to hold an appeal hearing, did not attend the hearing.

In accordance with established practice, the judgment of the Court of Cassation of 9 December 1997 was sent to the Istanbul State Security Court and deposited with that court's Registry on 5 January 1998.

The applicants claim that they became aware of the decision on 4 March 1998.

On 9 March 1998 the applicants applied for rectification of the Court of Cassation's decision on the ground that the preliminary investigation was unlawful having been conducted without their lawyer being present and given that they were minors at the date of the offences. The applicants' rectification request was rejected on 22 May 1998.

The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).