CASE OF SADAK AND OTHERS v. TURKEY (No. 2)

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of the opinion of the people;Stand for election);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Freedom from attachment)

The applicants, who were born in 1954, 1961, 1955, 1957, 1955, 1961, 1942, 1951, 1956, 1946, 1961, 1959 and 1948 respectively, are Turkish nationals. They were members of the Turkish Grand National Assembly and the DEP (Democracy Party – Demokrasi Partisi), a political party which was dissolved by the Constitutional Court on 16 June 1994.

On 7 May 1993 the DEP was founded and the appropriate declaration submitted to the Ministry of the Interior.

On 2 November 1993 Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for the DEP to be dissolved. In his application he accused the DEP of having infringed the principles of the Constitution and the law on political parties. He considered that declarations made by various members of the DEP's central committee and its former chairman during two meetings held abroad (at Erbil in Iraq and Bonn in Germany) were likely to undermine the integrity of the State and national unity.

On 1 March 1994 the Constitutional Court decided of its own motion to obtain the oral submissions of certain interested parties. Thus, on 22 March 1994 it took evidence from the applicant Mr Kartal, in his capacity as the vice-chairman of the DEP, and from Mr Kaplan, in his capacity as the party's legal representative.

On 2 March 1994 the Grand National Assembly lifted the parliamentary immunity of some of the DEP's MPs, including that of the applicants, in response to a series of applications made by the public prosecutor at the Ankara National Security Court.

On the same day Mr Dicle and Mr Doğan were arrested as they were leaving parliament, and taken into police custody. On 4 March 1994 the same thing happened to Mr Sakık, Mr Türk and Mrs Zana. The arrest of Mr Yurttaş and Mr Sadak, who had remained inside the parliament building, was prevented by the Speaker of the National Assembly on the ground that they were still members of parliament.

On 16 June 1994 the Constitutional Court ordered the dissolution of the DEP on the ground that it had undermined the territorial integrity of the State and national unity.

The Constitutional Court also declared that the parliamentary seats of all the applicants were forfeited as a secondary measure attending the decision to dissolve the DEP. The measure was not applied to four MPs who had recently left the party.

On the same day, fearful of the consequences of the criminal proceedings brought against them, Mr Toguç, Mr Güneş, Mr Kılınç, Mr Aydar, Mr Yiğit and Mr Kartal went abroad (to Brussels).

On 1 July 1994 Mr Sadak and Mr Yurttaş went to the public prosecutor's office with their lawyer and were placed in custody.

On a later date Principal State Counsel filed submissions in which he accused the applicants of separatism and undermining the integrity of the State, both of these being capital offences under Article 125 of the Criminal Code.

The Ankara National Security Court gave judgment on 8 December 1994. Applying section 8 of the Prevention of Terrorism Act (Law no. 3713), it sentenced Mr Sakık to three years' imprisonment for separatist propaganda. Mr Türk, Mr Dicle, Mr Doğan, Mr Sadak and Mrs Zana were each sentenced to fifteen years' imprisonment for membership of an armed gang pursuant to Article 168 of the Criminal Code and Mr Yurttaş was sentenced to seven and a half years' imprisonment for assisting and supporting an armed gang, an offence under Article 169 of the Criminal Code.

On an appeal on points of law by the applicants and Principal State Counsel on 26 October 1995, the Court of Cassation quashed Mr Türk's and Mr Yurttaş's convictions and ordered their release on the ground that they had contravened only section 8 of the Prevention of Terrorism Act. The Court upheld the other applicants' convictions.

The relevant provisions of the Constitution provide as follows:

“The fundamental aims and duties of the State shall be to safeguard the independence and integrity of the Turkish nation, its territorial unity, the Republic and democracy, to ensure the well-being, peace and happiness of both individuals and society, and to endeavour to remove any political, economic or social barrier restricting the fundamental rights and freedoms of the individual in a manner incompatible with the principles of equality before the law and justice and to secure the conditions required for the material and spiritual development of the individual.”

“Everyone shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.

No privileges shall be granted to any individual, family, group or class.

Organs of State and administrative authorities shall be required to comply in everything they do with the principle of equality before the law.”

“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ...

The decisions and internal running of political parties shall not be contrary to democratic principles. ...

Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founder members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.

Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel.

Founder members and leaders, at whatever level, of political parties which have been permanently dissolved may not become founder members, leaders or auditors of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved.”

“... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...”

“... The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, and that of other members who belonged to the dissolved party on the date when the action for dissolution was brought, shall end on the date when the Presidency of the Grand National Assembly is notified of the dissolution order.”

“... The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court's judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.”

The relevant provisions of the Criminal Code provide:

“It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State's independence, breaking its unity or removing part of the national territory from the State's control.”

“Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.

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

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

Section 8(1) of the Prevention of Terrorism Act (Law no. 3713), as amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995, provides:

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.”


The applicants, W.P., K.K., M.M., H.M., J.F. and D.F., are Polish nationals who were born in 1966, 1959, 1955, 1957, 1941 and 1952 respectively. Their occupations are respectively as follows: a police officer, a farmer, a police officer, a tailor, a teacher and a pensioner. M.M. and H.M. are married to each other, as are J.F. and D.F. The respondent Government were represented by Ms S. Jaczewska, Acting Government Agent, and subsequently by Mr J. Wołąsiewicz, Agent.

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

On 22 February 1995 W.P., M.M. and H.M. informed the Kalisz Regional Office (Urząd Wojewódzki) that they had decided to form an ordinary association (stowarzyszenie zwykłe) called the Association of Persecuted Functionaries of the Ministry of Internal Affairs (Stowarzyszenie Represjonowanych Funkcjonariuszy Resortu Spraw Wewnętrznych). They submitted a copy of the memorandum of association, which listed the following objectives:

“1. Allowing association of former and present functionaries of the Ministry of Internal Affairs and members of their families who are victims of different forms of repression, persecution, harassment and discrimination.

Identification of a phenomenon of persecution, repression, harassment and discrimination in the Ministry of Internal Affairs.

Taking action aimed at improving the conditions of service and social conditions of the functionaries of the Ministry of Internal Affairs.

Responding to all apparent instances of lawbreaking, abusing authority, harassing, repressing, persecuting and discriminating.

Taking action aimed at redressing damage caused to victims.

Taking action aimed at obtaining the prosecution of persons responsible for persecution, repression, harassment and discrimination.

Co-operating with the public authorities, organs of state administration, national and patriotic organisations, Christian unions and associations.

Spreading national and patriotic values.

Expressing opinions on public matters.”

On 17 March 1995 the Kalisz Governor (Wojewoda Kaliski) applied to the Kalisz Regional Court (Sąd Wojewódzki) for a decision prohibiting the formation of the association. He submitted that its name was misleading as it suggested that persecution was taking place in the Ministry of Internal Affairs. Poland was governed by the rule of law and since 1989 numerous regulations had been introduced to protect the rights of police officers. Finally, the Governor agreed with the opinion of the Kalisz Regional Police Commissioner (Komendant Wojewódzki Policji) that the association’s name defamed the Ministry of Internal Affairs.

On 19 September 1995 the Kalisz Regional Court allowed the application and prohibited the formation of the association. It considered that the applicants had not complied with section 45 of the Associations Act 1989, which required them to agree with the Minister of Internal Affairs the association’s objectives concerning the protection of public order.

The applicants appealed to the Łódź Court of Appeal (Sąd Apelacyjny) but on 20 February 1997 it dismissed their appeal. The appellate court agreed with the Regional Court’s conclusion that the applicants had breached section 45 of the Associations Act since they had not agreed with the Minister of Internal Affairs the association’s objectives concerning the protection of public order. In addition, the association’s name suggested the existence of persecution in the Ministry of Internal Affairs and therefore defamed a public institution.

On 25 June 1996 W.P., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Persecuted Police Officers and Teachers (Stowarzyszenie Narodowo-Patriotyczne Represjonowanych Policjantów i Nauczycieli).

On 10 July 1996 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association.

On 9 October 1996 the applicants requested that the proceedings be conducted by a judge who had in the past been persecuted by the authorities.

On 15 October 1996 the Kalisz Regional Court held a hearing. The applicants failed to attend it despite the fact that they had been served with summonses. The court asked the applicants to clarify whether their request of 9 October 1996 had been filed in order to challenge the presiding judge for bias.

On 20 October 1996 the applicants repeated their request of 9 October 1996.

On 14 April 1997 the Regional Court dismissed the requests lodged on 9 and 20 October 1997.

The court scheduled a hearing for 25 April 1997. The applicants submitted that as a result of “Jewish and Bolshevik reforms” they could not afford to attend the hearing.

On 29 April 1997 the applicants asked the Regional Court “to serve them with a reasoned decision taken by the court on 25 April 1997”.

On 30 April 1997 the Kalisz Regional Court gave a decision prohibiting the formation of the association.

On 30 March 1998 the Regional Court dismissed the applicants’ request of 29 April 1997. It pointed out that they had requested a copy of a non-existent decision, as the court had prohibited the formation of the association by a decision taken on 30 April 1997. Moreover, the applicants had failed to lodge a request for a reasoned decision within one week after that date, i.e. within the time allowed by the Code of Civil Procedure.

On 20 April 1998 the applicants received a copy of the Regional Court’s decision of 30 April 1997 prohibiting the formation of the association.

On 27 April 1998 the applicants challenged the decision of 30 March 1998 and on 4 May 1998 they appealed against the decision of 30 April 1997. However, their application of 27 April 1998 was dismissed on 3 September 1998.

On 20 January 1998 W.P., K.K., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Polish Victims of Bolshevism and Zionism (Stowarzyszenie Narodowo-Patriotyczne Polaków Poszkodowanych przez Bolszewizm i Syjonizm). They submitted a copy of the memorandum of association, which listed the following objectives:

“1. Allowing association of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists.

Identification of a phenomenon of persecution, repression, harassment and discrimination in Poland.

Identification of a phenomenon of violation of human and civic rights in Poland.

Identification of a phenomenon of the holocaust of the Polish nation and the scope thereof.

Taking action aimed at equality between ethnic Poles and citizens of Jewish origin by striving to abolish the privileges of ethnic Jews and by striving to end the persecution of ethnic Poles.

Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for the holocaust of the Polish nation.

Taking action aimed at prosecuting and making financially liable tormentors and criminals (including tormentors and criminals sitting behind official desks and tormentors and criminals wearing the gown of a judge or prosecutor) responsible for persecution, repression, harassment and discrimination.

Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for violating human and civic rights.

Revealing and fighting threats directed against the most important interests of the Polish nation.

Taking action aimed at improving the living conditions of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists.

Taking actions aimed at determined opposition to the psychological and physical murder of the Polish nation.

Claiming veteran benefits for Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists.

Co-operating with institutions, national and patriotic organisations, Christian, unions and associations conducting real (not feigned) activities for the good of the Polish nation.

Expressing opinions on public matters.”

On 22 January 1998 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association.

On 6 March 1998 the Kalisz Regional Court allowed the application and prohibited the formation of the association. The court considered that the memorandum of association did not comply with the law. The applicants intended to form an ordinary association which did not have legal personality. Only point 1 of the memorandum setting out the association’s objectives could be approved. The remaining objectives were either unlawful or unrealistic and could not be pursued by an ordinary association. In particular, points 2, 3, and 4 referred to objectives already realised by other institutions. Point 6 introduced a notion of inequality between citizens which did not exist. Moreover, point 8 amounted to defamation of judges and prosecutors.

The applicants appealed to the Łódź Court of Appeal but on 24 July 1998 it dismissed their appeal.

Article 12 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states:

“The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers’ organisations, societies, citizens’ movements, other voluntary associations and foundations.”

Article 13 reads:

“Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism, fascism or communism, or whose programmes or activities foster racial or national hatred, recourse to violence for the purposes of obtaining power or to influence State policy, or which provide for their structure or membership to be secret, shall be forbidden.”

Section 1 of the Associations Act, in so far as relevant, reads:

“1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute.

The [exercise of the] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others.

Associations shall have the right to express their opinion on public matters.”

Section 2, in so far as relevant, provides:

“1. An association is a voluntary, self-governing, durable union pursuing non-profit-making aims.

An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity.”

Section 45 provides:

“Persons intending to form an association whose activity will be directly related to defence or State security or the protection of public order shall agree the scope of such activity with the Minister of Defence or the Minister of Internal Affairs, respectively (...).”

Chapter 6 of the Act concerns ordinary associations. It provides that they do not have legal personality and are exempt from registration. Persons intending to form an ordinary association must adopt a memorandum of association and submit it to a supervisory authority, which can request a court to prohibit the formation of the association. The court can prohibit the formation of the association if its memorandum is not compatible with the law or if its founders do not fulfil the legal requirements.

Article 369 provides:

“§ 1 An appeal shall be lodged with the court which gave the impugned judgment within two weeks after the date on which a party was served with the reasoned judgment.

§ 2 If a party has not requested the reasoned judgment within a week after the delivery of its operative part, the time allowed for lodging an appeal shall run from the date on which the time allowed for requesting the reasoned judgment expired.”


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 13+6-1 - Right to an effective remedy (Article 6 - Right to a fair trial;Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1956 and lives in Tirana.

On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land, amongst which a plot of land measuring 10,500 sq. m. As the restitution of that plot of land was impossible since it was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law.

On 11 September 1997, relying on the right of first refusal, the applicant concluded a sale contract with the Vlora regional office of the National Privatisation Agency for the purchase of a pharmacy and its corresponding plot of 79.5 sq. m, which was allegedly part of the plot of land measuring 10,500 sq. m.

The chemist of the pharmacy lodged a complaint with the Vlora prosecutor office alleging that the sale contract was unlawful.

On 12 February 1998 the Vlora prosecutor initiated civil proceedings with the Vlora District Court (“the District Court”) seeking the nullity of the sale contract and the nullity of the Commission decision. The chemist intervened as a third party.

On 15 December 1999 the District Court declared null and void, in part, the Commission’s decision in so far as it had restored to the applicant the plot of 79.5 sq. m which corresponded to the site of the pharmacy. Relying on an expert’s report, it found that the plot of 79.5 sq. m had been expropriated in 1920, as a result of which the Property Act was inapplicable ratione temporis. Thus, the applicant could not claim a property right over that plot of land pursuant to the Property Act in so far as it had not been expropriated by the communist regime. Furthermore, the court decided to annul the contract for the purchase of the pharmacy since any such contract was based on the premise that only the owner of the site had the right of first refusal over the buildings constructed on it. However, the operative part of the judgment stated that the applicant would be compensated only in respect of 79 sq. m, the remainder of the property rights over 10,500 sq. m having been declared null and void.

On 21 March 2000 the Court of Appeal upheld the District Court’s decision. It found that the prosecutor had locus standi to lodge a civil action in accordance with the Prosecutor’s Office Organisation and Operation Act. It also held that the civil action was not time-barred as it had been lodged pursuant to the Property Act. It further dismissed the applicant’s complaint about the assessment of evidence and the credibility of the expert’s report.

On 20 March 2001 the Supreme Court dismissed the applicant’s appeal since it did not contain any lawful ground of appeal in accordance with Article 472 of the Code of Civil Procedure.

On 21 May 2001 the applicant filed a supervisory review request (rekurs në interes të ligjit) with the Supreme Court Joint Benches.

On 28 January 2003 the Supreme Court Joint Benches dismissed the applicant’s supervisory review request in the light of impending review proceedings that she had instituted (see “The review proceedings” below).

On an unspecified date the applicant filed a constitutional appeal.

On 4 November 2005 the Constitutional Court, sitting in plenary session, dismissed the applicant’s appeal finding that there had been no breach of the right to fair hearing. It found that the prosecutor’s civil action had been supported by the intervention of the chemist who had full interests in the case and did not disclose any breach of the applicant’s right to a fair trial. It further held that there was no other compelling evidence that the fairness of the proceedings had been tainted.

On an unspecified date the applicant requested revision of the decision of 15 December 1999.

On 6 February 2002 the District Court dismissed the revision request.

On 13 May 2003, following the applicant’s appeal, the Court of Appeal upheld the decision of 15 December 1999.

It would appear that the applicant’s appeal to the Supreme Court was dismissed on an unspecified date.

On 12 January 2005 the applicant lodged a request with the District Court for the interpretation of its decision of 15 December 1999, arguing that there existed a discrepancy between the reasoning and the operative part of the decision.

On 18 February 2005 the District Court entertained her request and rectified the operative part of the decision of 15 December 1999. It confirmed that the applicant’s property rights could not be recognised in respect of 79 sq. m and that the applicant should be compensated as regards the plot of land measuring 10,500 sq. m in one of the ways provided for by law.

The decision became final and binding on 7 March 2005, no appeal having been filed against it.

To date, the authorities have still not complied with the District Court decision of 15 December 1999, as rectified and interpreted by the decision of 18 February 2005.

The relevant provisions of the Albanian Constitution read:

Article 42 § 2

“In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”

Article 142 § 3

“State bodies shall comply with judicial decisions.”

Article 131

“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007.

New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows:

Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015.

Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices.

According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007.

Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification.

Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation.

Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act’s entry into force, the Government had to approve the list of properties to be allocated to the IkCF.

Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices.

Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate’s Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure.

Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision.

According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015.

Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF.

Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties’ which had not been the subject of a Commission decision.

Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices’ decisions.

According to section 5, the claimant or the State Advocate’s Office had the right to appeal against the central Agency’s decision within thirty days of its notification to the Tirana District Court.

Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011.

The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices.

Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF.

Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions, between 2005 and 2009, in respect of the award of financial compensation to former owners.

In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission’s decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency’s decision, were eligible to apply for financial compensation.

According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency’s decision that recognised his right to compensation. Only those former owners who had not previously received compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991).

Applications would be examined in chronological order on the basis of the Commission’s / regional Agency’s decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m.

The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee.

None of those decisions provided for the award of compensation to holders claims arising out of a final, enforceable court decision.

By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country.

The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities.

The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties covered by the IkCF.

By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties covered by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity.

The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal.

To date, it would appear that no such list has yet been approved.

Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively.

With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows:

Article 472

“Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...”

Article 480

“An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant, Mr Igor Anatolyevich Kulevskiy, is a Belarusian national, who was born in 1966 and lived in Gomel, Belarus. He is represented before the Court by Mr V.S. Korchevskiy, a lawyer practising in Tula, Russia.

The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

In 2004 the applicant left Belarus for Russia.

In the same year the Prosecutor General’s Office of the Republic of Belarus started an investigation of the activities of a criminal gang which operated in 1989-2004 in the Gomel region. As a result of the investigation fortysix members of the gang stood trial before the Supreme Court of the Republic of Belarus. Proceedings against the remaining alleged members of the gang, including the applicant, whose whereabouts could not be established, were separated.

On 12 January 2005 the Prosecutor General’s Office charged the applicant in absentia, issued an order for him to be remanded in custody and declared him a wanted person. The charges against the applicant, as amended on 15 March 2007, included, in particular, attacks on businesses and citizens (under Article 286 of the Criminal Code of the Republic of Belarus), acquisition, transfer, storage, transportation and carrying of firearms (under Article 295 § 4 of the Criminal Code), murder of one person in February 1994, murder with particular cruelty of four persons in September 1994 and three more persons in April 1995 (under Article 100 of the 1960 Criminal Code punishable by fifteen to twenty-five years’ imprisonment, life imprisonment or death).

On 6 August 2010 the applicant was arrested in the Tula region in Russia.

On 16 August 2010 a deputy Prosecutor General of Belarus, relying on Articles 56 and 80 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”), requested a deputy Prosecutor General of the Russian Federation to extradite the applicant to Belarus so that he could be prosecuted for the offences with which he was charged. The Prosecutor General’s Office of Belarus guaranteed that the applicant would only be prosecuted for offences in connection with which he would be extradited, that after his trial or after serving his sentence, if convicted, he would be free to leave Belarus and that he would not be transferred to a third state without the Russian Federation’s consent. It was stated further that the request was not aimed at persecuting the applicant on the grounds of his race, religion, ethnic origin or political convictions, and that the statute of limitation for his prosecution had not expired.

On 28 October 2010 the Aleksin Town Court, Tula region, convicted the applicant of forgery of a Russian passport, using which he had lived in Russia under a false name, and sentenced him to one year’s imprisonment. A decision on the applicant’s extradition was postponed. His conviction became final on 6 April 2011.

On 23 May 2011 the deputy Prosecutor General of the Russian Federation (“the RF”), relying in particular on Articles 56 and 66 of the 1993 Minsk Convention and Articles 462463 of the RF Code of Criminal Procedure, granted the request for the applicant’s extradition. The decision noted that the offences with which the applicant had been charged in Belarus constituted crimes under the Russian criminal law punishable with more than one year’s imprisonment, and that the statute of limitation for their prosecution had not expired. The applicant was a Belarusian national and did not have Russian citizenship.

On the same day the RF deputy Prosecutor General communicated his decision to the Belarus Deputy Prosecutor General, inviting the latter to inform him, under Article 69 of the 1993 Minsk Convention, of the outcome of the criminal proceedings against the applicant. The extradition was to take place once the applicant’s sentence for passport forgery had been served and the extradition decision had entered into force.

On 8 July 2011 the Belarus Deputy Prosecutor General, in reply to the RF Deputy Prosecutor General’s inquiry, supplemented his request for the applicant’s extradition with additional assurances, notably that in the event of the applicant’s extradition to Belarus the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be observed, the applicant would not be subjected to torture, inhumane or degrading treatment or punishment. If convicted, he would not be sentenced to death. He would be given a fair trial and, if necessary, provided with appropriate medical care.

The applicant appealed against the extradition decision to the Tula Regional Court. A judge to whom the case had been allocated enquired with the RF Prosecutor General about the possibility of obtaining additional assurances from Belarus, to the effect that the relevant court there would not impose the death penalty on the applicant, or that the death penalty would not be carried out. Following that inquiry the RF Ministry of Foreign Affairs obtained a Note of 26 July 2011, no. 04-21/1379-k, of the Embassy of the Republic of Belarus in the Russian Federation which states as follows:

“The Embassy of the Republic of Belarus in the Russian Federation presents its compliments to the Ministry of Foreign Affairs of the Russian Federation and, in reply to Note no. 8372/2 дснг of 19 July 2011, has the honour to present the following information.

The Embassy of the Republic of Belarus in the Russian Federation confirms that compliance by all Belorussian law-enforcement organs, including courts and organs of execution of sentences, with the undertakings given by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the nonapplication of the death penalty to Igor Anatolyevich Kulevskiy, is both lawful and compulsory.

By virtue of the law of the Republic of Belarus, in particular Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, only the Republic of Belarus Prosecutor General’s Office has the power to give a written undertaking on behalf of the Republic of Belarus of the nonapplication of the death penalty to a person whose extradition is being sought. In this connection, the written undertaking by the Republic of Belarus Prosecutor General’s Office on behalf of the Republic of Belarus of the non-application of the death penalty to Igor Anatolyevich Kulevskiy has in essence the force of an international legal obligation of the Republic of Belarus which is subject to rigorous observance.

Taking into account the aforementioned circumstances, the written undertaking by the Republic of Belarus Prosecutor General’s Office specifically indicates that in the event of delivery of a “guilty” verdict a court with jurisdiction to examine the case will not sentence I.A. Kulevskiy to death («... в случае вынесения обвинительного приговора в нем компетентным судом Республики Беларусь не будет назначено наказание И.А. Кулевскому в виде смертной казни ...»). That court will be bound to examine that undertaking at the [Kulevskiy’s] trial and regard it as an obligation of the Republic of Belarus not to apply the death penalty to him.

We should also inform you that the Ministry of Foreign Affairs of the Republic of Belarus and its diplomatic representation offices are not vested by Belorussian law with powers to give additional legally binding guarantees of non-application of the death penalty.

The Embassy of the Republic of Belarus in the Russian Federation avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Russian Federation the assurances of its highest consideration.”

From 15 September 2011, after serving his sentence for the passport forgery, the applicant was in custody pending extradition. He was released on 22 September 2012 when the maximum time-limit for detention had been reached.

The applicant’s request for refugee status was refused by a final decision of the Russian Federal Migration Service on 29 November 2011; on an appeal by the applicant that decision was upheld by the Moscow Basmanniy District Court on 11 January 2012 and the Moscow City Court on 24 February 2012.

On 6 March 2012 the Tula Regional Court, sitting in a panel of three judges, held an open hearing. Having heard the applicant, his counsel and the prosecutor and having examined other evidence, the Regional Court upheld the extradition decision, which it found to be in compliance with the European Convention on Extradition of 1957, the Minsk 1993 Convention and the RF Code of Criminal Procedure. The Regional Court examined the assurances given by the Belarus Prosecutor General’

In particular, as regards the applicant’s argument that three leaders of the gang convicted of the murders, which offences formed part of the charges against him, had been sentenced to death and executed, the Regional Court established, on the basis of official information from the Belarusian authorities, that those individuals had never been extradited; they had been arrested in Belarus in 2004 and detained there until their conviction and execution.

The applicant’s allegations that he had been persecuted in Belarus for his political activity, detained unlawfully and illtreated were found by the Regional Court to be incoherent, unsubstantiated and lacking essential details. No evidence of his detention or illtreatment had been provided. Political motives for leaving his home country had for the first time been raised at the last hearing before the Regional Court, without any details being provided. He had stated to the court previously that he had left Belarus to find a job. He admitted at the hearing that he was not a member of any political, religious, non-governmental or military organisation, and had never distributed materials or appeals in the context of agitation. He had made the same statements when detained with a view to extradition. His wife, daughter and sister were Belarusian nationals, resided in Belarus and had never been persecuted. Upon arrival in Russia he had not applied for refugee status or for Russian citizenship, but had lived under a forged Russian passport.

The Regional Court examined human rights organisations’ reports submitted by the defence, which indicated that the human rights situation in Belarus was unstable. Relying on the Convention case-law, the Regional Court noted that the reference to a general problem concerning human rights observance in a particular country could not alone serve as a basis for refusal of extradition. The charges against the applicant did not relate to political activity. The applicant’s allegation that any detainee would be subjected to ill-treatment in Belarus was too general. He was accused of banditry, illegal weapons trafficking and the murder of eight people with aggravating circumstances. There was no evidence that the applicant had engaged in any political activity. His allegations of earlier instances of illtreatment in Belarus were vague, totally unsubstantiated and unconvincing. The Regional Court concluded that there were no grounds to believe that the applicant would be subjected to treatment dangerous to his health or life, or that his trial would be unfair. The applicant had no health issues requiring him to stay in Russia on humanitarian grounds.

On 26 April 2012 the Supreme Court of the Russian Federation dismissed the applicant’s appeal against the Regional Court’s judgment, having endorsed the Regional Court’s findings.

On 21 May 2012 the Court, acting upon the applicant’s request, decided to apply Rule 39 of the Rules of Court, indicating to the Government of the Russian Federation that the applicant should not be extradited to Belarus until further notice by the Court.

The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Belarus are parties, provides as follows:

“1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence.

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”

“1. Extradition shall not be carried out if:

(a) the person whose extradition is being requested is a citizen of the requested Contracting Party;

(b) At the moment of receipt of the request criminal prosecution cannot be initiated according to the legislation of the requested Contracting Party ... as a result of the expiry of the statute of limitations or on another legal ground;

(c) a judgment or a decision on termination of proceedings have been delivered and entered into force on the territory of the requested Contracting Party in respect of the person whose extradition is being requested for the same crime;

(d) in accordance with the legislation of the requesting and requested Contracting Parties the crime is being prosecuted by way of private prosecution (on a victim’s request) ...”

“1. A request for extradition shall include the following information:

(a) the title of the requesting and requested authorities;

(b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law;

(c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information;

(d) information concerning the damage caused by the offence.

A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order ...”

“1. Without the requested Contracting Party’s consent the extradited person must not be prosecuted or punished for the crime committed before his extradition for which he had not been extradited.

Furthermore, without the requested Contracting Party’s consent the person cannot be transferred to a third state ...”

“The Contracting Parties shall notify each other of the outcome of the criminal proceedings against the extradited person. On request, a copy of the final judgment shall be sent. ”

“Relations concerning extradition and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the Contracting Parties.”

Similar provisions are contained in chapter 54 (Articles 460-468) of the Code of Criminal Procedure of the Russian Federation, which governs the procedure to be followed in the event of extradition. Under Article 462 § 4 of the Code, the extradition decision is taken by the Prosecutor General of the Russian Federation or his deputy.

Under Article 59 of the Criminal Code of the Republic of Belarus, the death penalty is applied, until its abolition, as an exceptional punishment for certain very grave crimes. The death penalty cannot be imposed on anyone who has committed offences when under the age of eighteen, on women, or on men who have reached the age of 65 by the date of delivery of a judgment. The death penalty can be replaced by a life sentence by way of clemency. The last two executions reportedly took place in March 2012.

Under Article 494 § 4 of the Code of Criminal Procedure of the Republic of Belarus, the Prosecutor General’s Office of the Republic of Belarus encloses with a request for extradition a written undertaking on behalf of the Republic of Belarus that the death penalty will not be applied to a person whose extradition is being sought, if such an undertaking is a condition of the requested state’s granting the extradition request.

Under Article 34 of the Code of Criminal Procedure of the Republic of Belarus, prosecution in criminal proceedings and the bringing of criminal charges before the courts are carried out by prosecutors on behalf of the State. Under Article 17 of the 2007 Law on the Prosecutor’s Office of the Republic of Belarus, the Prosecutor General’s Office supervises the activities of all prosecutors’ offices in the Republic of Belarus.

The Coordination Council of the Prosecutor Generals of States Parties to the Commonwealth of Independent States (CIS) was created in 1995 and given the status of CIS interstate organ in 2000. One of its tasks is to assess the efficiency of the CIS 1993 Minsk Convention and to propose measures for improvement of regulation of the relations governed by that Convention. It organises cooperation between the prosecutors of the States members and facilitates the defence of rights of their citizens.


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are three Slovakian nationals. Mr Dušan Konček (the first applicant) was born in 1944 and lives in Košice. The second applicant, Mr Milan Konček, is the first applicant’s brother who was born in 1951 and lives in Košice. The third applicant, Mrs Jolana Končeková, was their mother. She was born in 1921, lived in Rybník pri Ratkovej and died on 26 February 2006. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

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

On 14 June 2001 the applicants filed an action with the Rimavská Sobota District Court claiming a sum of money. On 1 October 2001 the applicants specified their action.

On 6 February 2002 the District Court delivered a payment order. On 25 February 2002 the defendant company filed an objection to the order. The order ceased to have effect.

The District Court scheduled hearings for 17 April and 6 May 2002. On 5 and 29 April 2002 the applicants requested that the hearings be cancelled and that their representative be heard, for reasons of procedural economy, by a court in Košice.

On 25 June 2003 the applicants’ representative was heard by a different court in accordance with the applicants’ above proposal. On 7 July 2003 the case file was returned to the Rimavská Sobota District Court.

On 12 November 2003 the District Court dismissed the action. On 30 December 2003 the Banská Bystrica Regional Court quashed the first-instance judgment.

The applicants challenged the length of the proceedings before the Rimavská Sobota District Court by way of a constitutional complaint. On 20 May 2004 the Constitutional Court found that the applicants’ right under Article 6 § 1 of the Convention to a hearing within a reasonable time had not been violated. It held that there had been a single period of inactivity between 7 July and 12 November 2003 which did not justify the conclusion that the length of the proceedings was excessive. It noted that the applicants by their unspecific action had contributed to the overall length of the proceedings.

On 19 July 2004 the District Court rejected the action. The decision was quashed by the court of appeal on 29 September 2004.

On 29 September 2005 the case was assigned to another judge.

On 26 February and 28 October 2008 the District Court dismissed the action and the judgments were quashed by the court of appeal on 19 August 2008 and 25 February 2009, respectively. The proceedings are pending.


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1976 and is currently detained in Kassel, Germany.

On 7 December 2007 the applicant was arrested on suspicion of uttering threats and domestic violence. On 8 December 2007 the Żary District Court ordered his detention on remand.

On 22 December 2007 he was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia. He was discharged from the hospital on 2 January 2008.

On 9 April 2008 the Żary District Court gave a decision and discontinued the proceedings against the applicant. The court found it established that the applicant had committed the offences with which he had been charged. However, he could not have been held criminally responsible as he had been suffering from paranoid schizophrenia. It further referred to the experts' opinion and ordered that the applicant be placed in a psychiatric hospital.

On the same date the court also refused the applicant's motion for release. The court considered that there was a reasonable suspicion that the applicant might commit another crime.

On 23 April 2008 the Żary District Court extended the applicant's detention until 22 September 2008. The court referred to the reasons given previously. In addition, it relied on the risk that the applicant might commit yet another offence. It stressed that it was necessary to keep the applicant in detention until his admission to a psychiatric hospital.

The applicant was transferred between different detention centres. After 28 March 2008 he was detained in the Nowa Sól Detention Centre.

On 21 May 2008 the Żary District Court was informed that the applicant had appealed against the decision of 9 April 2008. However he had filed his appeal with the Supreme Court instead of with the Regional Court. Therefore, the Supreme Court asked the lower court to examine whether the applicant's motion could be regarded as an appeal against the decision of 9 April 2008.

On 2 July 2008 the Zielona Góra Regional Court dismissed the applicant's appeal and upheld the decision of 9 April 2008. The court held that all the conditions for imposing the preventive measure on the applicant had been met.

On 7 July 2008 the Żary District Court gave a decision and ordered that the applicant be placed in the Lubiąż Psychiatric Hospital. It was also established that the applicant could be admitted to this facility on 8 August 2008. However, the applicant subsequently appealed against this decision in so far as it related to the choice of hospital and the case file was transferred to the Zielona Góra Regional Court. On 29 August 2008 the Zielona Góra Regional Court upheld the decision of 7 July 2008.

The applicant was admitted to the hospital on 15 September 2008.

It appears that he left the hospital on a later unknown date before February 2009.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines pre-trial detention as one of the so-called “preventive measures” (środki zapobiegawcze).

A more detailed rendition of the relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other preventive measures can be found in the Court's judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 2733, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 2223, 4 August 2006).

Article 264 § 3 of the Code of Criminal Procedure provides:

“If the proceedings are discontinued by reason of insanity of the accused, preliminary detention may be maintained pending the application of a preventive measure.”


MCDERMOTT AND OTHERS v. IRELAND AND KEEGAN v. IRELAND

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

The five applicants, Bridget McDermott, Elizabeth Bissett, Mr Edward and Mrs Patricia Kennedy as well as Christine Keegan, are Irish nationals who live in Dublin. They are represented before the Court by Ms Yvonne Walsh, a solicitor practising in Dublin. The Irish Government (“the Government”) are represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade.

The case concerns the death of the applicants’ children in a fire in 1981 in the Stardust Ballroom (“the Stardust”) in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows.

In the early hours of 14 February 1981 a catastrophic fire swept through the Stardust in which approximately 850 persons were present. 48 persons died and 128 were seriously injured. The overwhelming majority of the victims were 18-25 years of age. It remains the greatest disaster to have occurred in the history of the State.

Three of the first applicant’s children died in the fire, the second applicant lost a daughter as did the third and fourth applicants. Two of the fifth applicant’s daughters also died in the fire and a third was injured.

Within minutes of the first call to the Police Control Centre, all available police officers in the area were dispatched to the scene. A police investigation commenced immediately. An investigation team, of over 70 persons of various specialities, was assembled at the special incident centre under the control of the Chief Superintendent from the Central Detective Unit. Extensive forensic examinations were carried out and approximately 1500 witness statements were taken. Post-mortem examinations were carried out by State pathologists. The Coroner held Inquests (the Coroner’s Act 1962) in March 1982 and made findings as to the physical causes of death. In 2007 DNA tests allowed the identification of the remaining five unidentified bodies (not the deceased children of the applicants).

On 20 February 1981 the Tribunal was established (Tribunal of Inquiry Evidence Acts 1921 and 1979) to inquire into all aspects of the fire including its cause. It was chaired by Mr Justice Ronan Keane assisted by three assessors: a Professor of the Department of Fire Safety Engineering of the University of Edinburgh; the Chief Inspector of Fire Services in Denmark; and the Head of the Construction Division of An Foras Forbartha (the National Institute for Physical Planning & Construction Research). It sat for 122 days (March-November 1981), it heard evidence from 363 witnesses including victims, next-of-kin of the deceased and many experts and it commissioned extensive tests.

The Tribunal’s Report dated the 30 June 1982 made findings and recommendations in relation to a very broad range of issues.

The Tribunal found that there had been serious deficiencies as regards the content of, compliance with and application of applicable planning, building, electrical, safety and fire standards by the owners of the Stardust, by relevant State bodies and officials. The Tribunal treated one of the owner’s evidence “with great reserve”, which owner bore a special responsibility for the “recklessly dangerous” practice of keeping the emergency doors chained which was done with “reckless disregard” for the safety of those on the premises. The Tribunal found that, without all of these deficiencies, the injuries sustained would have been unquestionably less and the death toll would almost certainly have been reduced.

While the Tribunal’s conclusions were critical of the Department of the Environment (responsible for the fire services, building regulations and planning), the Report did not point to the particular fault or deficiencies of individual officials in the Department and no administrative or disciplinary enquiries were later pursued. The Report mentioned by name a number of officials of Dublin Corporation but it did not appear to allot individual blame given the system failures at issue. Some responsibility was attributed to a Senior Building Surveyor in Dublin Corporation as regards failing to follow up on the use of carpet tiles on the walls. However, the Report accepted that it was possible, as the Surveyor had argued, that the relevant regulations were not clear on this subject.

As to the police investigation, the Tribunal found that it was exhaustive and meticulous and to be commended, although there had been “serious short comings” in the forensic investigation. Some of the owners and staff of the Stardust did not give the police the assistance to which they were entitled, one member of staff deliberately attempting to deceive the police on whether the exit doors had been locked.

The Tribunal went on to make broad recommendations on the approach to be adopted to fire safety in Ireland (“serious shortcomings in the approach to fire safety in Ireland which much be remedied as a matter of urgency”) including on education, training, allocation of responsibility for fire safety and legislative/regulatory changes as well as recommendations concerning the enforcement of standards.

As to the cause of the fire, it made two findings. On the one hand, it found, based on the absence of any evidence, that the cause of the fire was “not known and may never be known”. On the other hand, based on a hypothesis, it found that the more probable “explanation” was that the fire was started deliberately in the West Alcove of the Stardust. However, the Tribunal went on, erroneously as later accepted, to adopt its hypothetical explanation of arson as a “finding of fact” and as its conclusion as to the probable cause of the fire.

The Tribunal’s finding of arson provoked anger and immediate protestations among the survivors and the bereaved. It was perceived as casting a suspicion of criminal wrongdoing over all who attended the Stardust on the night of the fire. It was considered to exclude negligence proceedings against the owners of the Stardust and that it facilitated the award of damages for malicious damage by the State to the owners (see immediately below). It would appear that the fifth applicant’s husband set up the Stardust Victims Committee (“the Committee”) in May 1985, its main objective being to campaign for a further inquiry.

A police preliminary investigation report was completed in April 1981: nothing factual as to the origin of the fire had come to light. The police report and file was forwarded the Director of Public Prosecutions (“DPP”) who directed that no prosecution be pursued. In September 1982, following the conclusion of the Tribunal, a further police file (including an engineering report which was unable to identify evidence of any fault in the electrical, heating or ventilation systems which could have started the fire) was sent to the DPP, who again directed that no prosecution be pursued. At the time, no reasons were given for the DPP’s decisions. All police investigation material was made available to the Stardust Tribunal.

In 1983 the owners of the Stardust brought a claim in malicious damage against the State. They relied on their own expert evidence and, while they did not specifically rely on the Tribunal’s Report, they did rely heavily on experts who had given evidence to the Tribunal to the effect that the fire had been caused deliberately. The State’s expert witness considered he could not refute this evidence and the Circuit Court accepted their evidence. In June 1983 that court found in favour of the owners, the trial judge stating that he had no doubt that the fire was malicious. In July 1983 the owners were awarded a total of 581,000 Irish Pounds (IR£). The State was legally advised that an appeal had no reasonable prospect of success.

On 22 October 1985 the Government established the Stardust Victims Compensation Tribunal (“the Compensation Tribunal”) to award ex gratia compensation for loss attributable to the fire. This tribunal comprised a High Court judge, a barrister and solicitor. Bereaved persons could claim compensation and acceptance of an award was conditional on discontinuing, or waiving the right to take, civil actions. Rejection of an award left claimants free to take civil actions except before the Criminal Injuries Compensation Board. Awards could not be appealed and no award could be made for the benefit of a deceased’s estate. Claimants were entitled to be heard and could call witnesses unless the tribunal considered it unnecessary. Claimants’ costs, even those already incurred in discontinued civil actions, would be discharged by the State. Approximately 950 applications were received. Cases were heard from November 1985 to December 1986. Given the distressing circumstances of the fatalities, claimants were awarded the maximum statutory amount for mental distress. 66 applicants were refused compensation and 64 withdrew their applications. Approximately 823 awards, totalling IR£ 10,458,115.00, were made. All awards were accepted.

The fifth applicant’s husband challenged the refusal by the Compensation Tribunal of an award for nervous shock. While it was accepted that he had suffered grief and sorrow, he had not suffered a psychiatric illness and was not therefore entitled to damages for nervous shock under the scheme. By judgment of 16 December 1986 the Supreme Court rejected his case (The State (John Keegan and Eoin Lysaght v. the Stardust Victims Compensation Tribunal ([1987] I.L.R.M. 202). Mr Keegan died that same day. The Keegan family award (including damages for mental distress and loss of earnings) totalled IR£ 170,800.

In 1991 the Compensation Tribunal published a report which recorded general conclusions and the total sum of compensation paid. The report criticised the fact that it was only before it that that many victims had been able to be medically examined and treated by doctors for the first time since the fire. The report therefore recommended that the Government put in place contingency plans, not only for rescuing victims and for their treatment in hospital, but also for monitoring their later progress.

In February 2004 the Committee submitted a report to the Department of Justice, Equality and Law Reform (“the Department of Justice”). The Department of Justice referred the report for expert analysis which concluded that the Committee’s report did not contain any new evidence. The Committee was informed of this in a meeting in November 2004. A letter 14 February 2008 from the police to the solicitor of the Committee explained the scope of this expert analysis and detailed why there was no new evidence warranting the police re-visiting the investigation. The applicants maintained that they were given a copy of this letter only after the Coffey Review (paragraphs 21-32 below).

The Committee then obtained reports from three fire experts whose evidence was that a more probable cause of the fire was that it started, or involved combustibles in, the Store Room (in the roof space) which contained a considerably greater fuel load than the West Alcove. The findings were published in a report called “Nothing but the Truth” and the report was the subject of a television documentary in February 2006. In July 2006 the Committee, through its solicitors, presented a full submission for a further inquiry (also called “Nothing but the Truth”) to the Government. In December 2006 the Committee was informed that, while the expert advice to the Taoiseach (Prime Minister) was that the report contained no new material which would justify holding an enquiry, he was willing to arrange for an independent examination of the Committee’s submissions by an appropriate person with legal experience.

Further to negotiations between the Government and the Committee, an agreement was reached on the appointment of an independent person to review the case made by the Committee for a further inquiry. In May 2008 the appointment of Mr Paul Coffey S.C. was agreed. On 10 July 2008 the Government established the independent “Coffey” review of the Committee’s case for a renewed inquiry to establish the cause of the fire. The terms of reference were:

“2. ... [Mr Coffey] shall:

- consider the [Report of the Tribunal];

- consider all the issues which are raised by the [Committee], as are summarised in the submission “Nothing But The Truth” and in the supplemental submission to “Nothing But The Truth” (delivered on the 4th of May, 2007), and all the evidence and submissions as may be presented on their behalf as he considers necessary and relevant to the case for a further inquiry.

- In the course of a private examination of the issues,

(a) meet such people and secure such advice as he considers necessary to ensure complete understanding of the matters and issues.

(b) facilitate a detailed presentation by the [Committee] of the case for renewed inquiry as they see it.

(c) have such regard to as he thinks appropriate to submissions, if any, as may be made by other persons/parties including any Government Departments or Agency or the owners of the Stardust together with any observations on or response thereto from the [Committee].

- carry out such inquiries or investigations that he, in his sole discretion, considers necessary for clarification of the issues raised by the [Committee], but he shall not initiate any further investigations into the cause of the fire.

Following his assessment of the issues raised by the [Committee] and related matters, as set out above, Mr Coffey shall, without undue delay, report to the Government and shall therein make a recommendation as to whether a new inquiry should be established and may make such other recommendations as he considers appropriate.”

Mr Coffey advertised in local and national newspapers seeking submissions. He heard submissions from all interested persons and parties. The Committee, whose legal representation was financed by the Government, gave oral evidence over 3 days and made written submissions. A large body of documents was gathered, all of which were made available to the Committee’s legal representatives. Mr Coffey considered he was entitled to assess not only the applicants’ new evidence, but any other issue pertinent to the question of the need for a further enquiry.

The Committee summarised the issues raised by it as follows:

“(1) that the Tribunal’s finding of fact that the fire was probably caused deliberately is based on hypothesis and not established by evidence and is for that reason inherently unsatisfactory;

(2) that the hypothesis upon which the Tribunal’s finding is based is itself demonstrably flawed because it cannot be reconciled with the known facts of the fire including evidence accepted by the Tribunal;

(3) that new expert and factual evidence establishes as a probability that the fire began in the Lamp Room and spread via the Store Room to the West Alcove;

(4) that the “methodology” used by the Tribunal was flawed insofar as insufficient scrutiny or examination was given to the possibility that the fire originated in the roof space having regard to the very considerable quantity of combustible material that was contained in the Store Room and the fact that the Store Room was effectively in the roof space;

(5) that only the very considerable fuel load in the Store Room could have provided the basis for the rapid development of the fire which engulfed the Stardust within minutes.”

On 23 January 2009 the Coffey Report was published. Having reviewed the evidence and submissions of the Committee together with the Tribunal’s database of material, Mr Coffey concluded (paragraph 5.8) that the Committee had established a prima facie case that:

“(1) the Tribunal’s finding of fact that the fire was probably started deliberately is on its face a mere hypothetical explanation for the probable cause of the fire and is not demonstrated by any evidence that the fire was started deliberately;

(2) in the absence of any such evidence and on the basis of new expert evidence relating to the early collapse of the ceiling in the West Alcove, the explanation cannot be demonstrated to be objectively justifiable.”

Mr Coffey was further satisfied, on a prima facie basis, that:

“(1) that neither the Tribunal nor the Committee have identified any evidence which can establish the cause of the fire;

(2) that the new and other evidence relied upon by the Committee at its highest merely establishes that the fire began in the roof space but does not establish its point of origin or cause.”

As to the Committee’s call for a new inquiry to establish the cause of the fire, Mr Coffey considered that, in the absence of any identified evidence which could establish its cause, the issue was whether a new inquiry would serve any useful purpose. He continued:

“5.11 It could be argued that a further inquiry would at least establish whether the fire began in the West Alcove or in the roof space. However, it seems to me that at a remove of nearly three decades from the date of the fire and in the absence of any identified evidence which can establish the cause of the fire wheresoever it arose, the public interest would not be served in establishing a further inquiry solely for that purpose. It could also be argued that there should be a further enquiry to establish the probable cause of the fire. However, it seems to me that in the absence of any identified evidence capable of establishing the cause of the fire, such an inquiry can only at best produce a hypothetical finding neither capable of proof or disproof and therefore of no obvious or any forensic value.”

Mr Coffey went on to point out that:

“5.12 The real difficulty is one of record and lies in the fact that despite having made a finding based on the absence of evidence that “the cause of the fire is unknown”, the Tribunal has failed to acknowledge and record this finding as its conclusion as to the cause of the fire. Instead the Tribunal has only recorded its finding as to the probable cause of the fire. In so concluding and in the absence of any evidence that the fire was started deliberately, the Tribunal has placed on the public record a finding of probable criminal wrongdoing which is prima facie speculative and fraught with evidential and logical difficulties. Moreover, insofar as it is stated to be a “finding of fact”, the finding is so phrased as may well give the mistaken impression to a reasonable man or woman in the street that it is a finding established by evidence that the fire was started deliberately and not a mere hypothetical explanation for the probable cause of the fire.”

Mr Coffey found this to be profoundly unsatisfactory to the survivors and the bereaved who, through the Committee, argued that such was the scale of the disaster that it has become a matter of communal if not national history to an extent that engaged a public interest in ensuring that the public record was factually accurate and established by evidence.

However, the new and other evidence relied on by the Committee, at its highest, established that the cause of the fire was unknown, a finding already made but not properly acknowledged and recorded by the Tribunal. As to how to correct this, Mr Coffey proposed alternative solutions. Since the Tribunal was established by Parliament, the Government could consider whether it could correct the public record by placing on the record of the Houses of Parliament an acknowledgement of the Tribunal’s findings that there was no evidence that the fire was started deliberately and that the cause of the fire was unknown; or, if such an acknowledgement could not be made by the Government, a further limited inquiry would be needed but simply to clarify the public record in this limited respect.

Finally, noting the failure by the State to act on the earlier recommendation of the Compensation Tribunal, Mr Coffey recommended that a committee be formed to monitor the progress of victims and to ensure that counselling and medical treatment, where necessary and appropriate, was afforded to survivors and the bereaved at the expense of the State.

On the day the Coffey Report was published, the Government published a statement acknowledging and accepting the conclusions and recommendation of the Coffey Report. On 3 February 2009 and 9 July 2009 Dáil Éireann (the House of Representatives) and Seanad Éireann (the Senate) respectively, passed motions acknowledging and accepting the conclusions and recommendation of the Coffey Report and, notably, that the cause of the fire was unknown and that arson was merely a hypothetical explanation which had not been demonstrated.

In October 2009 the Government published a Public Notice concerning Counselling Services which began operating in February 2010.

A building regulation regime was introduced by the Building Control Act 1990 and the Building Regulations and Building Control Regulations 1991. The Fire Services Act 1981 was brought into force in 1985 and updated in 2003 and Regulations were also adopted thereunder which, inter alia, made locking of exits and blocking escape routes from places of assembly an offence. The Licensing of Indoor Events Act 2003 provided for increased powers for fire authorities to inspect premises, issue warning notices and, where necessary, serve closure notices. A series of Codes of Practices and Guidelines have been published by the Department of the Environment providing fire safety advice for persons in control of premises. Following a full review of fire services in Ireland in 2001, the Fire Services Change Programme was implemented to further enhance fire safety enforcement powers. A Major Emergency Development Programme (2006-2009) was introduced to improve responses to major emergencies and a National Directorate for Fire and Emergency Planning was formed in 2009. The numbers of fire services’ staff sharply increased and fire services funding and training significantly improved. Following the criticisms of it in the Tribunal Report, Dublin Corporation significantly increased staffing especially in fire prevention, established a training centre and purchased new fire stations and equipment as well as a new communications centre.


Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant was born in 1957 and lives in Nagytarcsa, Hungary.

On 13 October 1995 the applicant filed for divorce before the Budapest Regional Court. She also claimed custody of the couple's three children, born respectively in 1984, 1986 and 1992, and requested the payment of maintenance and the division of the matrimonial property.

After repeated motions for bias filed by the applicant's husband, the Buda Central District Court was first appointed to hear the case. As a consequence of the husband's further motion for bias, the case-file was then transferred to the Zalaegerszeg District Court.

On 24 September 1996 the President, the Vice-President and all the judges of the Zalaegerszeg District Court declared bias.

On 6 February 1997 the Supreme Court appointed the Miskolc District Court and the Borsod-Abaúj-Zemplén County Regional Court to hear the case.

On 2 April 1997 the Miskolc District Court requested the applicant to supplement her action within 8 days. Following the grant of an extension of this time-limit, the applicant submitted additional material on 5 May 1997.

A hearing was held on 24 June 1997.

On 26 August 1997 the District Court requested the school attended by the couple's children to provide an opinion. It also appointed the Budapest Forensic Medical Expert Institute (“the Institute”) to give an expert psychological opinion on the parties and their children and requested to be advised as to which parent was the more suitable to raise the children.

The applicant together with the three children failed to appear at the examinations scheduled for 1 October 1997 as they had not received any notification.

The examinations scheduled for 18 November 1997 could not be carried out as the husband and two of the children failed to appear.

On 9 December 1997 the Borsod-Abaúj-Zemplén County Regional Court found the husband's renewed motion for bias of 4 September 1997 unsubstantiated.

On 12 January 1998 the Miskolc District Court ordered the parties to provide information about the children's situation and the issue of maintenance.

In her letters of 15 January and 5 May 1998, the applicant requested the District Court to schedule a hearing in the case and, as an interim measure, to order her husband to pay maintenance.

On 25 January 1998 the husband filed a motion for bias against all of the judges of the county.

On 5 May 1998 the applicant requested the District Court to deal with the case urgently. On 15 July 1998 she repeatedly requested the court to pronounce the divorce, to grant her custody of the children, to oblige her husband to leave their flat and to pay maintenance.

On 26 October 1998 the Supreme Court dismissed the husband's renewed motion for bias and warned him that if he submitted another unsubstantiated motion, he would be fined.

At the court's request of 27 November 1998, the applicant provided information about the maintenance of the children.

On 14 December 1998 the husband again filed a motion for bias against the judges dealing with the case.

On 22 December 1998 the District Court suspended the proceedings pending the outcome of a parallel action to place the husband under guardianship.

At the applicant's request, on 6 October 1999 the District Court decided to resume the proceedings and to appoint a guardian ad litem to represent the husband.

On 9 November 1999 the applicant elaborated her action and requested the court to obtain psychological and educational opinions on the children. The latter opinion was submitted on 24 November 1999. On 7 December 1999 the Institute appointed an expert psychologist.

On 27 January 2000 the parties' two eldest children requested the court to place them, by way of an interim measure, with the applicant.

On 3 February 2000 the Institute informed the court that it struck the case out of its list as the husband and the two eldest children had repeatedly failed to appear for the examination.

On 8 February 2000 the District Court ordered that the two eldest children be placed with the applicant and obliged the husband to hand them over to her within three days. On 17 February 2000 the husband appealed against this decision. On 23 February 2000 the applicant informed the court that its order could not be executed as the children had in the meantime been placed in a children's home.

On 29 June 2000 the Supreme Court dismissed the husband's renewed motion for bias of 7 March 2000.

On 26 September 2000 the Borsod-Abaúj-Zemplén County Regional Court quashed the order of 8 February 2000 and remitted the issue of interim measures to the District Court.

At the applicant's request, on 29 September 2000 the Miskolc District Court discontinued the proceedings. In her appeal, the applicant requested that the proceedings be resumed and that the case, rather than being discontinued, should be transferred from Miskolc to a court in the town where she was domiciled. On 30 January 2001 the Borsod-Abaúj-Zemplén County Regional Court dismissed her appeal.

On 21 July 2001 the applicant renewed her action before the Buda Central District Court.

A hearing took place on 15 January 2002 and a further hearing was scheduled for 30 May 2002.

At present, the case is pending before the District Court.

Article 19 § 2 of the Code of Civil Procedure reads as follows:

“If a party submits a motion for bias, which is manifestly unsubstantiated, or repeatedly submits unsubstantiated motions in the same proceedings in respect of the same judge, the court may, as a provision of the order dismissing the motion, impose a fine on him.”


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant, Mr Paul Tucka, is a British national who was born in 1964 and lives in Evesham.

In 2006 the applicant was arrested and charged with gross indecency. He was subsequently also charged with rape. The charge of rape related to an incident alleged to have occurred while the complainant was between ten and eleven years of age. It was not reported to the police until she was 21 years old.

On 12 June 2007 the applicant was convicted of one count of rape and thirteen counts of gross indecency. He was sentenced to twenty years’ imprisonment, including fifteen years for the rape count.

The applicant appealed against conviction and sentence. On 29 September 2008 the Court of Appeal rejected his appeal against conviction. However, it reduced the sentence of imprisonment in respect of the rape count to ten years. His total sentence was therefore one of fifteen years’ imprisonment.

The applicant immediately applied to the Criminal Cases Review Commission (“CCRC” – see below) to have his case referred to the Court of Appeal. No copy of the application has been provided to the Court and the grounds for the request to the CCRC are unknown.

On 10 May 2010, the CCRC notified the applicant that it had decided not to refer his case to the Court of Appeal. The decision of the CCRC has not been provided to the Court, despite specific requests on 7 October 2010 and 10 November 2010.

Section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”) sets out the power of the CCRC to refer a case to the Court of Appeal and provides:

“(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission—

(a) may at any time refer the conviction to the Court of Appeal, and

(b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction.”

Section 13 of the 1995 Act provides:

“1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless—

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider—

(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and

(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”