The applicant, Mrs Ilaria Salvetti, is an Italian national, who was born in 1969 and lives in Caprino Veronese, Italy.

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

In 1971 the applicant was struck down by paralysis, blindness and dysarthria as a result of the compulsory polio inoculation provided by Law no. 51 of 4 February 1966.

Section 2 of Law no. 210 of 25 February 1992 provided that people struck down by permanent illnesses as a result of compulsory inoculations were entitled to an allowance from the first day of the month following the claim and to a lump-sum payment. In fact, by a judgment of 22 June 1990 the Constitutional Court had declared Law no. 51 of 4 February 1966 unconstitutional because it did not provide for any fair compensation for illnesses as a result of compulsory polio inoculation.

On 13 January 1993 the applicant requested the compensation she was entitled to.

On 26 April 1995 the Ministry of Health established, on the basis of the applicant’s claim, that she was entitled to an allowance of 14,107,590 Italian lire (ITL) per annum from 1 February 1993.

On 18 May 1995 ITL 32,917,655 were paid in arrears for the period from 1 February 1993 to 31 May 1995.

By a judgment of 18 April 1996 the Constitutional Court declared section 2 of Law no. 210 of 25 February 1992 unconstitutional because it did not provide for any compensation for the period between the date on which the cause of action arose and the award of the allowance.

In 1996, after the Constitutional Court’s judgment, several decree-laws were issued and re-issued in order to resolve the matter of the retrospective compensation. The last decree-law no. 548 of 23 October 1996 converted into Law no. 641 of 23 October 1996 and later Law no. 238 of 25 July 1997 amended section 2 of Law no. 210 of 25 February 1992. According to the new section 2, in addition to the principal allowance and lump-sum payment already awarded, people injured by compulsory inoculations were entitled to a further compensation for the period between the date on which the cause of action arose and the award of the allowance, calculated for every year at 30% of that allowance, without statutory interest and monetary revaluation. Moreover, section 2 provided that people injured by multiple illnesses as a result of compulsory inoculations were entitled to additional compensation, to be determined by a decree of the Ministry of Health, of not more than 50% of the principal award.

On 20 July 1997 the applicant lodged an application with the County Court (Pretura) alleging that the decree-law’s provisions were unconstitutional on the grounds of the arbitrary reduction of the retrospective compensation and requesting a declaration of her right to obtain it without any reduction. The applicant also alleged that the provision in relation to the additional award was unconstitutional, because it was determined in a different way from the sum awarded to disabled workers and ex-servicemen. In any case, the applicant requested a provisional order against the Ministry of Health to pay the retrospective compensation as determined by Law no. 210 of 25 February 1992 (that is, 30% of the principal award) and statutory interest from 1 February 1993 to 31 May 1995 on the principal allowance arrears.

The Ministry of Health asked for the applicant’s requests to be dismissed.

The County Court provisionally ordered that Ministry of Health pay ITL 89,386,881 in retrospective compensation as determined by Law no. 210 of 25 February 1992.

By judgment of 30 January 1997 the County Court found the applicants’ arguments concerning constitutionality to be manifestly ill-founded and ordered the Ministry of Health to pay ITL 88,877,817 in retrospective compensation as determined by Law no. 210 of 25 February 1992 and ITL 4,368,881 in statutory interest from 1 February 1993 to 31 May 1995 in principal allowance arrears. The Court also declared that the applicant was eligible for the additional compensation because of the multiple illnesses following the compulsory inoculation but did not fix the amount because the Ministry of Health’s decree had not yet been issued.

The Ministry of Health lodged an appeal against the County Court’s judgment.

The applicant asked for the appeal to be dismissed and her previous requests confirmed.

By judgment of 24 September 1998 the Labour Court upheld the County Court’s judgment and ordered the Ministry of Health to pay additional compensation of 50% of the principal award.

By judgment no. 307 of 22 June 1990 the Constitutional Court declared as follows:

Law no. 51 of 4 February (polio compulsory inoculation) is unconstitutional insofar as it does not provide, outside section 2043 of the civil code, for any fair compensation to be charged to the State for damage as a result of infection or other serious illness following compulsory polio inoculation which have struck down inoculated children or people who have personally and directly taken care of them.

This unconstitutional declaration (...) introduces a compensation for damage as direct result of compulsory medical treatment within the limits of a fair settlement which considers all the aspects of damage. This compensation is justified (...) by a balanced consideration of the principles of section 32 of the Constitution in relation to the solidarity between individuals and the collectivity, which justifies the imposition of medical treatment.

According to Section 1 of Law n. 210 of 25 February 1992:

Everyone struck down by illnesses or infirmities as a result of compulsory inoculations (...) is entitled to a compensation to be charged to the State on the conditions and in the ways established by the present law.

Section 2 of Law no. 210 of 25 February 1992 provided as follows:

The compensation (...) starts from the first day of the month following the claim.

By judgment no.118 of 18 April 1996 the Constitutional Court declared as follows:

Section 2, par. 2 and 3, par. 7 of Law no. 210 of 25 February 1992 is unconstitutional insofar as it denies the right of people struck down by illnesses as a result of polio compulsory inoculation or of people who have personally and directly taken care of them to a compensation to be charged to the State -outside the provision of section 2043 of the civil code- for the period between the date on which the cause of the action arose and the award of the allowance determined according to the law above.

(...) The individual cannot be expected to sacrifice his own health for the benefit of the whole community. The coexistence between the individual and the collective aspect of constitutional discipline of health as well as the duty of solidarity, established by section 2 of the Constitution, which ties the individual to the collectivity, but also the collectivity to the individual, imposes a proper supporting measure of fair compensation for damage to be arranged for people who have suffered damage as a result of compulsory medical treatment. The compensation must be paid independently of the one claimed by the part concerned, if the conditions of section 2043 of the civil code are satisfied. Whereas the defence against tort provided by the section above necessarily and fully pays also for health damages -(...)- the compensation at issue is not concerned with guilt but with the unbreakable duty of solidarity overhanging in this case on the collectivity and, in its place, on the State. Though this compensation could not be derisory and -(...)- must consider all the aspects of damage, it has equitable nature.

(...) This is a special duty. The issue for the collectivity is not only the duty to help people in trouble for any cause, but also the duty to compensate the sacrifice that someone can suffer for a benefit to the collectivity. It would be against principles of justice, such as results from section 32 of Constitution, in the light of the duty of solidarity of section 2 of Constitution, that people struck down were left to their own destiny and resources or that the damage at issue was considered an unforeseen event to be compensated with general instruments of public assistance, or that satisfaction for compensation requests of damaged people was subordinated to the existence of others’ negligent behaviour which could be missing.

Section 2 of Law no. 210 of 25 February 1992, revised by Law no. 641 of 23 October 1996 and later by law no. 238 of 25 July 1997, provides as follows:

The allowance of par. 1 is integrated by a lump-sum payment corresponding to the special additional compensation of Law no. 324 of 27 May 1959 (...) and starts from the first day of the month following the claim (...) By claim and even if the allowance has been already given, a compensation is paid to people indicated in Section 1, par. 1 for the period between the date on which the cause of action arose and the award of the allowance, calculated for every year at 30% of the allowance, without statutory interest and monetary revaluation.

3.4.5.6 (...).

People injured by multiple illnesses with distinct disabling effects are entitled to an additional compensation, to be determined by a decree of the Ministry of Health, of not more than 50% of the allowance of par. 1 and 2.


CASE OF SKENDŽIĆ AND KRZNARIĆ v. CROATIA

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

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in 1957, 1985 and 1982 respectively and live in Otočac.

On 3 November 1991, during the Homeland War in Croatia, an arrest warrant, signed by the then head of Otočac police station (Policijska postaja Otočac) J.O., was issued in respect of M.S., the first applicant's husband and the second and third applicants' father, born on 23 June 1948 and of Serbian ethnic origin, who was suspected of having committed the criminal offence of terrorism. On the same day two police officers from the station, D.R. and J.R., went to the applicants' flat in Otočac and arrested M.S., who was taken to J.O.

On the same day, at an unspecified time, two other police officers from the same police station, D.V. and M.Č., took M.S. to the Police Department of the nearby town of Gospić and handed him over to I.O., the Head of the Gospić Operational Headquarters (Operativni štab Gospić). They saw I.O. handcuffing M.S. and then went back to Otočac. The whereabouts of M.S. have remained unknown ever since.

At the request of his family, M.S. was presumed dead from 2 November 1996 onwards by virtue of a decision of the Otočac Municipal Court (Općinski sud u Otočcu) of 26 March 1998.

The applicants allege that in the same period a number of individuals of Serbian ethnic origin had disappeared or had been killed in the area around the nearby town of Gospić.

In the days following the arrest of her husband by the police, the first applicant telephoned the local authorities in Otočac and Gospić on numerous occasions to enquire about his fate, but to no avail.

On 17 December 1991, after the first applicant had made enquiries to the Ministry of the Interior (the “Ministry”) regarding her husband, the Ministry sent an official letter to Otočac police station enquiring as to the whereabouts of M.S. since his arrest on 2 November 1991. On 18 December 1991 J.O. replied that M.S. had been arrested on 3 November at 11 a.m. and taken to Gospić County Prison (Okružni zatvor Gospić) the same day.

On 20 December 1991 the Ministry sent an official letter to the Gospić Police Department enquiring as to M.S.'s whereabouts.

On 21 December 1991 the Gospić Police Department replied that M.S. had been arrested by officers from Otočac police station and that the Gospić Police Department had not been informed of his arrest. They further stated that, to their knowledge, M.S. had been taken to Zagreb County Prison (Okružni zatvor Zagreb). Further to this, on 11 January 1992 the Gospić Police Department informed the Ministry that M.S. had never been detained in Gospić County Prison.

On 27 October 1992 the Ministry sent a letter to both Otočac police station and the Gospić Police Department enquiring as to the whereabouts of M.S. and whether he had been listed as a missing person.

On 29 October 1992 M.Č., one of the above-mentioned police officers from Otočac police station, drew up a report stating that after he had been arrested on 3 November 1991 M.S. had been taken to the Gospić Operational Headquarters and handed over to its head, I.O. He also stated that there was no further information as to M.S.'s whereabouts.

On 14 July 1999 the first applicant sent a letter to the Minister of Justice calling for an official investigation into the disappearance of her husband. On 4 February 2000 the letter was forwarded to the State Attorney with a request that appropriate steps be taken. The first applicant was served with a copy of that request, but received no further information.

The first applicant sent a second letter to the Ministry of Justice on 23 May 2000 seeking information about the steps taken in order to establish the circumstances of her husband's disappearance.

On 7 July 2000 the Gospić County State Attorney's Office (Županijsko državno odvjetništvo u Gospiću) ordered investigative measures in connection with the disappearance of M.S. and asked the Otočac police to conduct an interview with former police officer D.R. and former head of the police station J.O. about the disappearance of M.S. The Otočac police interviewed D.R. on 10 July 2000. He said that in the autumn of 1991 he and another police officer, J.R., had arrested M.S. in his flat in Otočac pursuant to an arrest warrant issued by J.O. They had taken M.S. to J.O. and left.

On 11 July 2000 the Otočac police informed the Gospić County State Attorney's Office that they had not been able to interview J.O. because he had moved to Zagreb.

In a letter sent to the Ombudsman on 2 February 2001, the first applicant complained that no action was being taken in respect of the inquiry into the fate of her husband. On 13 March 2001 the Ombudsman's Office asked the applicant to explain what exactly her request was.

On 14 June 2002 police officer, D.R., since retired, was interviewed at Otočac police station. He said that in November 1991 he had been a police officer at that station and that during that period M.S. had been brought to the premises of Otočac police station, where he had been briefly detained and then transferred to Gospić by two police officers, M.Č. and D.V.

On 15 June 2002 J.R., the aforementioned police officer from Otočac police station, made a written statement that on 3 November 1991 he and another police officer, D.R., had executed an arrest warrant and arrested M.S. in his flat in Otočac. They had handed him over to J.O. and left.

On 18 June 2002 former police officer D.V. was interviewed at Otočac police station. He said that he could not remember a person named M.S. but did remember having on one occasion, together with his colleague M.Č., driven an official police vehicle to Gospić, but could not say for what purpose.

The Otočac police informed the Gospić Police Department of the result of the interviews on 19 June 2002 and the Gospić County State Attorney's Office on 26 June 2002.

On 9 February 2004 the first applicant officially registered M.S. with the Otočac police as a missing person. On 19 March 2004 the Otočac police informed the Gospić police that M.S. had been listed as a missing person and asked them to carry out an inquiry because M.S. had disappeared on the territory under their jurisdiction. On 30 March 2004 the Gospić police asked the Gospić Prison authorities whether they had a record of M.S. having been detained there in November 1991 and whether I.O. had had any function at Gospić Prison at that time.

On 1 April 2004 the Gospić Prison authorities informed the Gospić police that M.S. had never been registered as having entered that prison and that I.O. had had no function at the prison, but had been head of the Gospić Operational Headquarters.

On 8 April 2005 the Gospić police asked the Ličko-Senjska Police Department (Policijska uprava ličko-senjska – the former Gospić Police Department) to request the Zagreb Police Department to interview I.O., who was now living in Zagreb. On 16 April 2004 the Ličko-Senjska Police Department duly made that request.

On 22 April 2004 the Zagreb Police Department interviewed I.O. He stated that during the Homeland War in Croatia, as an officer in the Croatian Army, he had arrived in Gospić on 30 August 1991 and left sometime at the end of September 1991. He had no knowledge of the arrest and disappearance of M.S.

On 7 May 2004 the first applicant asked the State Attorney to take steps in order to establish the whereabouts of her husband.

In May 2004 the State Attorney sent a letter to the Rijeka County State Attorney's Office (Županijsko državno odvjetništvo u Rijeci) stating that in September 2000 his office had already forwarded to the Rijeka Office a request that an investigation be carried out into the death of M.S., in particular in connection with the criminal proceedings opened in 1999 against a certain T.O. and other persons. The first applicant's submissions from 2000, in which she stated that she had received no information in reply to her enquiry about the circumstances of her husband's death, were enclosed. The State Attorney requested all information about M.S. that had been obtained during the investigation concerning T.O. and his accomplices. A copy of this letter was served on the first applicant.

On 3 June 2004 the Gospić County State Attorney's Office informed the Ličko-Senjska Police Department about the interview with I.O. and also said that the records of the Military Police Administration showed that I.O. had not been on their payroll.

On 18 June 2004 the Zagreb Police Department interviewed J.O. He stated that from September 1991 to 15 February 1992 he had been head of Otočac police station and that sometime in October or November 1991 an order had been given for M.S. to be arrested and taken to the Gospić Police Department for questioning on suspicion of having participated in the criminal offence of kidnapping a driver in the spring of 1991. He did not know who had given that order but was sure that it had not been him. J.O. also said that he had not seen M.S. when he was taken to the Otočac police but that he knew that M.Č., together with one or two other police officers, had taken M.S. to the Gospić police in a police car. He had no knowledge as to what had happened there but had heard rumours that on the same day M. S. had run away to the occupied territories.

On 13 July 2004 the Zadar Police Department (Policijka uprava zadarska) interviewed Ž.B., who had been Head of the Public Safety Operational Tasks Division of the Gospić Police Department (načelnik Odjela operativnih poslova javne sigurnosti Policijske uprave Gospić) in the period between 1 August and 30 November 1991. He had no knowledge of the arrest and disappearance of M.S. and had never heard of a person of that name.

On 24 August 2004 the Ličko-Senjska Police Department interviewed I.D., a retired police officer from the Gospić Police Department who said that he had not ordered the arrest of M.S. and that it had most likely been J.O. who had ordered it. He had not witnessed M.S. being brought to the Gospić Police Department.

In October 2004 the Deputy State Attorney sent a letter to the first applicant telling her that both the Gospić Police Department and the Gospić County State Attorney's Office had been ordered to take all necessary steps to establish the circumstances of her husband's disappearance.

On 11 November 2004 the Gospić County State Attorney's Office asked the Gospić County Court (Županijski sud u Gospiću) to hear evidence from witnesses J.S. (the first applicant), J.O., M.Č., D.V., D.R., J.R. and I.O. At hearings held on 23 and 24 November 2004 an investigating judge of the Gospić County Court heard evidence from all these witnesses, save J.O. All of them repeated what they had already said to the police. Further to this, on 10 February 2005 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) heard evidence from J.O. He repeated the statement he had made to the police.

At the end of 2004 the first applicant wrote to the Vice-President of the Government, enquiring about the progress of the investigation, and the latter forwarded the letter to the State Attorney. In February 2005 the Deputy State Attorney informed the applicant that in November 2004 a request for an investigation into the disappearance of M.S. to be opened had been lodged with the Gospić County Court (Županijski sud u Gospiću). On 10 February 2005 the investigating judge assigned to the case heard evidence from a number of witnesses.

In August 2005 the first applicant's counsel sought information about the investigation from the Gospić County Court.

In September 2005 the Gospić County State Attorney's Office informed the applicant that those responsible for the disappearance of her husband had yet to be identified. The Gospić County State Attorney asked the Gospić Police Department to continue with their efforts to establish the circumstances of M.S.'s disappearance.

In December 2005 the first applicant's counsel asked the State Attorney to transfer the case to another State Attorney's office, objecting to the lack of impartiality of the Gospić County State Attorney's Office on the grounds that the investigation had revealed involvement on the part of the local authorities in the disappearance of M.S.

In January 2006 the State Attorney replied to the first applicant's counsel that he had asked for a report from the Gospić County State Attorney's Office and the local police.

In July 2006 the first applicant's counsel told the representatives of the OSCE Mission to Croatia that the investigation was ineffective. In August 2006 the Mission enquired of the State Attorney as to progress with the investigation.

At the same time the first applicant's counsel requested that M.S. be listed as a disappeared person with the Department for Detained and Disappeared Persons and provided information as to where his body might be found. Soon afterwards, the Ministry of Family, Homeland War Veterans and Intergenerational Solidarity (Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti) informed the representative that three corpses of unidentified persons had been found as a result of exhumation at a graveyard in Vraneš. In connection with this the members of the Skendžić family gave samples of their blood.

In October 2006 the State Attorney's Office informed the OSCE Mission to Croatia that further information had been requested from the Gospić County State Attorney's Office. The latter ordered the local police authorities to undertake further steps in order to identify the perpetrators. However, no further steps were taken.

On 6 September 2007 the applicants lodged a constitutional complaint about the ineffectiveness of the investigation. The proceedings are still pending.

In March 2002 the applicants brought a civil action against the State in the Otočac Municipal Court seeking damages in connection with M.S.'s disappearance.

In a judgment of 6 May 2005 the Municipal Court established that M.S. had been arrested by the police and alive while in police custody and that therefore the State was responsible for his disappearance and death. It awarded the applicants each 230,000 Croatian kunas (HRK) for non-pecuniary damage in respect of their suffering for the death of a close relative, and also a monthly allowance to the first applicant until her death and to the second and third applicants for as long as they attended school. The relevant part of the judgment reads:

“... the arrest warrant issued by the Otočac police station on 3 November 1991 in respect of M.S., on the basis of which he was brought to that station, and at the same time the lack of any evidence that M.S. was handed over to any other State body, leads this court to establish the defendant's responsibility.

As stated above, the fact that there is no evidence that the Otočac police station handed the detainee M.S. over to any other State body is crucial for the question of the defendant's responsibility because the issue of control over the detainee includes taking of responsibility for his safety and for the protection of his physical integrity.

The evidence given by the witnesses, in particular the police officers who participated in M.S.'s arrest and his transfer to Gospić, shows that their actions violated the detainee's fundamental human rights and freedoms guaranteed under the Croatian Constitution, which cannot be restricted even at the time of ... the immediate war danger ... as well as the rights guaranteed by the Code on Criminal Procedure then in effect.

It has been established that the defendant, in addition to infringing the procedure prescribed by law, did not secure to the detainee the protection of his physical integrity and life, which resulted in his disappearance and presumption of his death.

In such a way, it is clear that damage was caused by unlawful and incorrect acts on the part of the State bodies, namely, the Ministry of Interior ...

This court has no doubt that the suffering on account of the death of a husband and father cannot be translated into money: it concerns just satisfaction so that the plaintiffs may be at least partially helped in regaining their mental balance, which was certainly upset by the loss of a husband and father. In assessing the amount of just satisfaction for the plaintiffs' suffering, the court has had particular regard to the circumstances and manner in which the deceased M.S. disappeared, and accordingly considers the plaintiffs' sufferings as being particularly serious.

The court has taken into account that the deceased, M.S., was arrested by the legitimate authorities and that since he was taken from his home, his family – the plaintiffs – have had no further information about [his whereabouts]. Of course the fate of the plaintiffs' husband and father has given rise to an exceptionally frustrating and stressful situation for the plaintiffs as a family, in particular seeing that the family has never learned the complete truth about his disappearance.

In her statement the first plaintiff vividly described the atmosphere of utter despair and uncertainty which the plaintiffs felt at the time when M.S. was arrested and then disappeared, stressing that she had taken tranquilisers because she had received no answers as regards the fate of her husband.

The statement of the second plaintiff that as a six-year old child she had been constantly crying, that she and her brother had retreated into themselves and that she would like to know at least where her father had been buried so that she could attend his grave on All Saints Day was also moving.

The third plaintiff, who was three at the time of [the disappearance of his father], stressed the strong bond between himself and his father and the time of his arrest and uncertainty about his fate, describing it as 'horrible in which he cannot remember a single nice moment.'

It is clear that the mental suffering caused by the loss of a parent or a husband is immeasurable. In the case at issue the plaintiffs' suffering has an additional dimension owing to the fact that they still do not know the exact circumstances of M.S.'s death or the place of his grave.”

The part of the judgment concerning the award for non-pecuniary damage was upheld by the Gospić County Court on 12 January 2006, whereas the part concerning the monthly allowance was quashed. On 10 October 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the County Court's judgment concerning the award for non-pecuniary damage. This judgment was fully enforced on 29 April 2008.

The proceedings concerning the claim for a monthly allowance resumed before the Otočac Municipal Court, which delivered a fresh judgment on 11 February 2009, again awarding the applicants a monthly allowance, which was upheld by the Gospić County Court on 3 July 2009.

On 31 August 2009 the applicants sought enforcement of that judgment in the Otočac Municipal Court and an enforcement order was issued on 9 September 2009.

However, upon a request by the State on 22 September 2009, the enforcement of the judgment was adjourned on the grounds that the State had in the meantime lodged an appeal on points of law with the Supreme Court, which was still pending.


The applicant, Mr Milan Šulva, is a Slovakian national, who was born in 1953 and lives in Bratislava. He is represented before the Court by Ms I. Abelovská, a lawyer practising in Bratislava.

The applicant acted as receiver in bankruptcy of a State-owned company. On 12 January 1999 he submitted his final report to the Bratislava Regional Court for approval. It indicated the sum obtained from the sale of the company's assets and also the receiver's costs and his remuneration. The bankrupt company and its creditors filed no objections to the report.

On 28 April 1999 the Regional Court heard the applicant and a representative of the bankrupt company. The latter stated that he did not object to the receiver's report subject to its conformity with the relevant law. On the same day the Regional Court delivered a decision in which it approved of the report with a modification concerning the applicant's remuneration. The decision stated that the applicant had not determined the sum due to him in accordance with Sections 6(a) and 7(1) of Regulation No. 493/1991 as amended.

In the Regional Court's view, the applicant had mistakenly included in the sum obtained through realisation of the bankrupt's assets (which serves as the first component for determination of a receiver's remuneration) the sum of 591,451.65 Slovakian korunas (SKK) which the company in bankruptcy had in its bank account at the moment of adjudication of bankruptcy. The receiver calculated the second part of his remuneration (based on the sum reserved for satisfying the creditors' claims obtained as a result of receiver's activities) in that he had repeatedly included in it the sum obtained as a result of realisation of the assets after deduction of claims relating to those assets, of sums to which the bankrupt's employees had been entitled as well as of other items. The Regional Court therefore modified the calculation of remuneration submitted by the applicant in that it deducted SKK 591,451.65 from the sum representing the income from realising the bankrupt's assets and administration of its property. The remaining sum, which included SKK 361,256,579.04 (obtained as a result of realising the assets) and SKK 44,066,825, 23 (sum reserved for satisfying the creditors' claims obtained in the course of the administration in bankruptcy), served as the basis for determining the receiver's remuneration. Considering that the administration in bankruptcy carried out by the applicant had been complex, the Regional Court increased the remuneration by 20 per cent as the relevant law permitted.

On 16 June 1999 the applicant appealed. He submitted reasons for the appeal on 7 July 1999. He argued that the Regional Court had disregarded the fact that no objections had been filed to his report and concluded that the court had exceeded its power in that it had modified a part thereof. He further submitted that the Regional Court had incorrectly interpreted Section 6(a) of Regulation No. 493/1991, as amended by Regulation No. 358/1996, in that it had excluded from the second component of his remuneration the sum obtained as a result of realisation of the bankrupt's property and that the sum which the bankrupt had had in its account at the moment of adjudication of bankruptcy had not been taken into consideration when determining the sum on the basis of which his remuneration was to be calculated. In support of his argument the applicant referred to two decisions delivered by the Banská Bystrica Regional Court in 1998 and in 1999. He also referred to doctrinal interpretation of the relevant law published in the Slovak Bar Bulletin in 1998 and in a law review.

On 23 November 1999 the Supreme Court upheld the Regional Court's decision concerning the sum which was due to the applicant. In its judgment the Supreme Court summed up the reasoning of the first instance court and the arguments put forward in the appeal without mentioning, however, the above two Banská Bystrica Regional Court's decisions of 1998 and 1999 relied upon by the applicant. The reasons for the Supreme Court's decision read as follows:

“[Under Section 6(a) of Regulation No. 493/1991, as amended,] a bankruptcy receiver's remuneration is composed of the addition of remuneration determined on the basis of the sum obtained as a result of realisation of the bankrupt's property after adjudication of bankruptcy and of remuneration determined on the basis of the sum which is reserved for satisfying the creditors' claims and which the receiver obtained as a result of other activities than realisation of assets, such as filing claims with courts or proposing enforcement of decisions etc.

In the present case the first instance court [in accordance with the relevant provisions of the Bankruptcy Act] had before it the final report on realisation of assets and on remuneration and expenses and examined it at the hearing held on 28 April 1999 in the course of which the bankrupt's representative stated that he did not object to the receiver's remuneration subject to its second component being in accordance with the law. The first instance court ... came to the conclusion that the remuneration had not been calculated in accordance with Section 6 of Regulation No. 493/1991, as amended by Regulation No. 358/1996, and modified the remuneration due.

The appellate court also reached the conclusion that the sum of SKK 591,451.65 which had been deposited in the bankrupt's bank account prior to adjudication of bankruptcy could not serve as the basis for determining the first part of the receiver's remuneration as that sum had not been obtained as a result of realisation of the bankrupt's assets. The second part of remuneration should be determined on the basis of the sum obtained by the receiver through other activities than realising the assets. In the case under consideration the approved final report indicates that other incomes have amounted to SKK 44,066,825.23. The incomes from realising the assets and from other activities total SKK 405,323,404.27 and this sum serves as the basis for determining the receiver's remuneration under Section 7 of Regulation No. 493/1991, as amended by Regulation No. 358/1996... The first instance court decided correctly when concluding that the receiver's remuneration amounted to the sum mentioned.”

The Supreme Court's decision was subsequently published in the Collection of opinions of the Supreme Court and of courts' decisions under No. 51/2000. The conclusion was emphasised according to which a sum which a debtor had in a bank account prior to adjudication of bankruptcy is not to be included in the sum on the basis of which a receiver's remuneration is determined as it was not obtained as a result of realisation of the bankrupt's assets.

Regulation No. 493/1991, as amended by Regulation No. 358/1996, governs the implementation of certain provisions of the Bankruptcy Act of 1991.

Section 6(a) provides that the basis for determining the remuneration of a receiver in bankruptcy is composed of the sum obtained through realisation of the bankrupt's assets and of the sum reserved for satisfying the creditors' claims which the receiver obtained in the course of carrying out his or her duties.

Under Section 7(1) of Regulation No. 493/1991, as amended, a receiver in bankruptcy is entitled to remuneration equal to 10 per cent of the sum mentioned in Section 6(a), the minimum remuneration being SKK 50,000.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in 1957 and lives in Portsmouth. In 1980 he joined the Royal Navy.

In or around early 1996, he was charged, pursuant to section 42 of the Naval Discipline Act 1957 (“the 1957 Act”), with three civilian offences (one under the Theft Act 1968 and two under the Forgery and Counterfeiting Act 1981). He was also charged, inter alia, on four counts of misapplication of public property contrary to section 30 of the 1957 Act. The charge sheet was signed by the convening authority, Rear Admiral N.E. Rankin (Flag Officer Portsmouth).

By convening order dated 1 February 1996, the convening authority acknowledged receipt of the “circumstantial letter” and ordered the convening of a court-martial for 26 February 1996 (see paragraph 21 below). He appointed the Prosecutor by name (of lower rank and in the convening authority’s chain of command). He also appointed the President of the court-martial and the other four members by name: all were subordinate in rank to the convening officer but were not in his chain of command. The Judge Advocate was also appointed by name by the convening authority and was not in the latter’s chain of command.

Advised that he could be represented by a civilian or naval lawyer, the applicant instructed a civilian lawyer, his current representative.

The court-martial took place on board HMS NELSON on 18 March 1996 and the applicant pleaded guilty to all charges. Having presented evidence in mitigation of sentence, he was sentenced, inter alia, to four months’ imprisonment, to be discharged from the navy and to stoppages of pay in the sum of 2,655 pounds sterling.

By letter dated 19 April 1996 the applicant was informed that his petition against sentence, which had been reviewed on behalf of the Admiralty Board by the Naval Secretary/Director General Naval Manning, had been rejected but that he could request that the petition be further considered by the Admiralty Board.

He subsequently renewed his petition against sentence. On 17 May 1996 he was released from prison and by letter dated 7 June 1996 he was notified that his petition had been rejected.

The law and procedures in respect of naval courts-martial were contained in the Naval Discipline Act 1957 (“the 1957 Act”) and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 (“the 1991 Orders”). Following the Commission’s report in the case of Findlay v. the United Kingdom, certain provisions of the 1957 Act were amended by the Armed Forces Act 1996 (“the 1996 Act”) which Act came into force on 1 April 1997 (Findlay v. the United Kingdom, no. 22107/93, Commission’s report of 5 September 1995 and, see also, judgment in that case of 25 February 1997, Reports of Judgments and Decisions 1997-I). Sections A-G below concern the applicable law and practice prior to the entry into force of the 1996 Act.

Under section 42 of the 1957 Act “civilian” offences were also offences under the 1957 Act. Accordingly, even if the charge amounted to a civilian offence, in most cases naval personnel could be tried on that charge by the naval authorities under the 1957 Act.

At the material time a naval court-martial consisted of between 5-9 naval officers not below the rank of lieutenant, though the rank of the members might have been higher depending on the rank of the accused. Not all members belonged to the same ship or naval establishment and the captain and executive officer of the accused’s ship could not sit on the court-martial.

A President of the court-martial was appointed from the members. A Judge Advocate also took part in every naval court-martial. The Prosecutor could be a legally qualified naval officer or any other competent person. In exceptional cases, a civilian lawyer was appointed to act as Prosecutor.

An accused was allowed to engage, inter alia, an officer or civilian counsel (“the accused’s friend”) who advised the accused, examined the accused if he desired to give evidence, cross-examined witnesses for the prosecution and examined witnesses for the defence. If the accused wished to be represented by a civilian lawyer he could apply to the convening authority for approval of legal aid.

The convening authority was an officer authorised by the Defence Council to convene a court-martial. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gave a list of officers who could act as convening authority: Commander in Chief, Fleet; Commander in Chief, Naval Home Command; Flag Officer Plymouth; Flag Officer Scotland and Northern Ireland; Flag Officer Naval Aviation; Flag Officer Portsmouth; Flag Officer Surface Flotilla; Flag Officer Sea Training; Commander UK Task Force; and Commander British Forces Gibraltar.

An application for a court-martial to be held was generally made to the convening authority by the Commanding Officer by way of a “circumstantial letter”. This letter reported the circumstances upon which a charge was based in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he was charged had to be forwarded in a separate document annexed to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposed to put in evidence accompanied the letter.

Based on the material submitted, the convening authority decided on the charges to be retained against an accused and, if he was satisfied with the charge sheet accompanying the circumstantial letter, he could countersign the charge sheet. He also decided on the necessity to hold a court-martial on the charges retained. In this latter respect, the convening authority was guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and was not to order the holding of a court-martial unless satisfied that the charges were correct, that the evidence was sufficient (namely, that there was a realistic prospect of a conviction) and that there was a “service interest” in trying the matter by court-martial. In convening the court-martial, the convening authority appointed the date, time and place for trial.

The convening authority appointed the President and other members of the court-martial. He also appointed, or directed an officer to appoint, a Judge Advocate and a Prosecutor. He ensured that the accused was properly assisted. In this latter respect, and unless the accused wished to represent himself or to instruct civilian counsel, the convening authority would nominate a competent naval officer to act as the accused’s friend.

The convening authority could, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arose which, in his opinion, rendered such action necessary (orders 13(2) and 28(2) of the 1991 Orders).

The Judge Advocate of the Fleet was appointed by the Queen on the recommendation of the Lord Chancellor and was removable on the same authority for inability or misbehaviour. He had to be a barrister or advocate of not less than ten years’ standing. He acted as legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. It was his duty to review all contested courts-martial whether the verdict was guilty or not guilty and, in particular, he advised that Board whether a court-martial had been properly conducted according to law and whether the conviction could stand, he gave a view on the sentence and he drew attention to any gross errors or irregularities. He also gave the Chief Naval Judge Advocate his view as to the manner in which the naval barristers had conducted themselves as Judge Advocate, Prosecutor and as the accused’s friend. As a result of the latter advice, “there may well be downstream actions issuing guidance either specifically or generally” (Manual of Naval Law, Appendix 5).

The Chief Naval Judge Advocate was a serving officer of the rank of captain of the Royal Navy and he was also a barrister. The Chief Naval Judge Advocate was assisted by a staff of serving naval officers who were barristers. His duties included assisting and consulting with the Judge Advocate of the Fleet, advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts-martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interests of the Service so required.

In all other cases, a Judge Advocate was appointed to a court-martial from the staff of the Chief Naval Judge Advocate.

Before the trial the Judge Advocate appointed informed the convening authority of any defect in the constitution of the court-martial. He advised the court-martial, whether his opinion was requested or not, upon all questions of law and procedure which arose and the court-martial had to accept his advice unless there were weighty reasons for rejecting it, in which case those reasons had to be recorded.

The Judge Advocate had to ensure that the accused did not suffer any disadvantage during the hearing in consequence of, inter alia, the accused’s position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate summed up the relevant law and evidence. The Judge Advocate was not present when the court considered its finding and, if during the court-martial’s deliberations on the charges further advice was required, the court-martial had to receive that advice in open court. The Judge Advocate advised the court-martial on sentence but not in open court.

The accused could object to any particular member of the court-martial and to its general constitution. If the objection to the President was upheld the court had to adjourn until another was appointed. If an objection to a member was upheld, another member could be appointed from the “spare members list” and, if an objection as to the constitution of the court-martial was upheld, the court-martial had to adjourn and report the matter to the convening authority. All members of the court and any other officers of the court-martial had to take a prescribed oath or affirmation (section 60 of the 1955 Act). The opinion of the President and of each member of the court-martial had to be given orally and on each charge separately, and their opinions had to be given in order of seniority commencing with the junior in rank. The vote of the majority determined sentence.

Before the court accepted a plea of guilty, the Judge Advocate had to ensure that the accused understood the charge to which he had pleaded and the different procedure which would result from that plea. The Prosecutor then read the circumstantial letter. Before the court proceeded to deliberate on sentence, the Prosecutor, whenever possible, called relevant witness evidence on information in the possession of the naval authorities as to the accused’s background and history which might have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused could also give evidence and call witnesses in mitigation. The court-martial had to take note of the accused’s naval record (for example, awards for gallantry). The members of the court-martial retired (with the Judge Advocate) to consider the sentence. The court-martial did not give reasons for its decision on sentence.

Having received the report of the finding and sentence, the convening authority took the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he could order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) pointed out that before the convening authority gave effect to or suspended the sentence, he (or, inter alia, the Commander in Chief) had to satisfy himself so far as he was able, that no errors had been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubted the correctness of the finding, in fact or in law, or the legality of the sentence, he could not execute the sentence pending reference to the Defence Council. In such circumstances, the accused was retained in custody or the sentence was suspended under section 90 of the Act.

The convening authority (among other naval authorities) could at any time, and had to at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appeared that the conduct of the offender since his conviction had been such as to justify a remission of sentence, he had to remit the whole or any part of it (section 92 of the 1957 Act).

A certified transcript of the proceedings was completed and sent through the commander-in-chief or senior naval officer to the Defence Council. The Defence Council could, at any time, review a finding of guilt, any sentence awarded in respect of such a finding and any finding by a court-martial that a person was unfit to stand trial or was not guilty by reason of insanity. This had to be done by the Defence Council in the case of a court-martial as soon as practicable after the receipt of the record of proceedings (section 70(1) of the 1957 Act).

A convicted person could also petition the Defence Council against the findings or sentence or both (section 70(2) of the 1957 Act). Having reviewed the petition, the Defence Council could, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers could be, and were normally, carried out by the Admiralty Board or by any officer so empowered by the Admiralty Board. Once an appeal was lodged with the Courts-Martial Appeal Court, the review functions of the Defence Council ceased.

The Courts-Martial Appeal Court (“CMAC”) was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the Criminal Division of the Court of Appeal and considered appeals from courts-martial. The judges of this court included ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as were nominated by the Lord Chief Justice. There was no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, were available to the CMAC. Once an application to the CMAC was received by the Registrar of the CMAC, the Defence Council’s duty to review ceases.

The changes to the naval court-martial system brought about by this Act are set out in the Court’s judgment in the case of Grieves v. the United Kingdom ([GC], no. 57067/00, §§ 16-62, ECHR 2003XII).


Preliminary objection partially allowed;Violation of Art. 6-1

The applicants were born in 1955 and 1965 respectively. The first applicant lives in Batman and the second applicant is currently detained in the Gaziantep Prison.

On 13 March 1993 the applicants were taken into custody by policemen from the Anti-Terrorism Branch of the Batman Security Directorate on suspicion of their membership of an illegal organisation, namely the Workers' Party of Kurdistan (“the PKK”).

On 13 April 1993 the applicants were brought before the public prosecutor and subsequently the investigating judge, who ordered the applicants' detention on remand.

On 26 April 1993 the Diyarbakır State Security Court Public Prosecutor filed an indictment against 38 accused persons, including the applicants. He accused the first applicant of membership of the PKK and requested the court to sentence him under Article 168 § 2 of the Criminal Code. The public prosecutor further accused the second applicant of carrying out activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. The prosecutor requested the court to sentence him in accordance with Article 125 of the Criminal Code.

On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.

Between 16 June 1993 and 12 March 2002, the court held 69 hearings. On 12 March 2002 the Diyarbakır State Security Court, which was composed of three civilian judges, acquitted the first applicant of the charges against him. The court further found the second applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence.

On 1 October 2002 the Court of Cassation upheld the decision of the Diyarbakır State Security Court.


The applicant, Mr Machiel J. Polman, is a Netherlands national, who was born in 1958 and lives in Arnhem. He is represented before the Court by Mr J.H. Sassen, a lawyer practising in Arnhem.

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

On 21 December 1995 the applicant’s ex-wife requested the Regional Court (arrondissementsrechtbank) of Arnhem to establish a maintenance arrangement (alimentatievoorziening) for herself and the two children born of their marriage. The Regional Court acceded to this request and ordered the applicant to pay monthly amounts of maintenance both to his children and his ex-wife. The applicant lodged an appeal with the Court of Appeal (gerechtshof) of Arnhem, which quashed the decision of the Regional Court and reduced the amount of the applicant’s maintenance obligations. As the applicant considered that the reasoning and calculations applied by the Court of Appeal were both incorrect and incomprehensible, he lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad).

In his advisory opinion of 15 May 1998, one of the advocates-general (advocaten-generaal) of the Supreme Court recommended that the appeal be dismissed. A reply to this opinion was sent to the Supreme Court by counsel for the applicant on 28 May 1998. According to a stamp placed on the reply, it was received on the same day.

The Supreme Court (civil-law division, Civiele Kamer) rejected the appeal on 4 September 1998. The decision (beschikking) stated that the applicant’s ex-wife had requested the Supreme Court to reject the appeal and that the advisory opinion of the advocate-general had also proposed that the appeal be dismissed. The decision did not mention that the applicant, or counsel on his behalf, had replied to that opinion or that account had been taken of that reply. In dismissing the appeal, the Supreme Court referred to Article 101a of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) according to which the Supreme Court, if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law, could, when giving reasons for its decision, limit itself to that finding.

At the time relevant to the present case, Article 328 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, “CCP”) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion (Article 328 § 1 in conjunction with Article 326 CCP). However, pursuant to Article 328 § 2, simple notes (eenvoudige aantekeningen) contesting facts, which the parties believed had been presented incorrectly by the public prosecution service, could be submitted to the President of the court by the parties or their representatives.

In a judgment of 28 March 1997, the Supreme Court held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process, seen also in the light of the interests of the other party (Nederlandse Jurisprudentie (NJ) 1997, no. 581).

A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which it held, with reference to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), as follows:

“... where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit, [this provision] should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (...). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution service].”

In order to observe the principle of due process, the Supreme Court allowed a period of two weeks for the submission of the response to the advisory opinion of the public prosecution service.

On 1 January 2002 an amended Article 44 CCP entered into force, paragraph 3 of which gives parties the right to submit written comments in reply to the advisory opinion issued by the Procurator-General of the Supreme Court within two weeks of the transmission of the advisory opinion to them.

At the time of the decision in the present case, September 1998, the general practice of the Supreme Court was to mention in its judgment or decision that a reply to the advisory opinion had been submitted. This was established as general practice in an internal decision (intern besluit) of the civil-law division of the Supreme Court of 25 June 1992, but the practice existed even before that time. The internal decision was not published.


Preliminary objection (ratione temporis) allowed (substantive aspect, art. 2 and 3);Preliminary objection (ratione temporis) dismissed (positive obligations, art. 2 and 3);Preliminary objection dismissed (six month period);Violation of Art. 2 and 3 (procedural aspect);Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award

Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in 1940 and lives in Istanbul. She is the widow of Mr Cengiz Aksakal (“C.A.”), who died on 12 November 1980.

On 12 September 1980 martial law was declared in Turkey following military intervention by the army.

On 18 October 1980 C.A., who was a teacher in the village of Veliköy, in the province of Artvin, surrendered to the police during a military operation and was taken into custody. He was suspected of belonging to the illegal organisation Dev-Yol (Revolutionary Way). He spent the first three days in custody at the headquarters of the gendarmerie in Veliköy and the following five at the headquarters of the gendarmerie of the district of Şavşat. C.A., who was in good health at the time of his detention in both locations, was not questioned.

On 26 October 1980 he was transferred to Artvin, where he was interrogated in a sports hall until the following 2 November. On that date, he was imprisoned in the martial law detention facility (sıkıyönetim gözetim evi).

After having been taken ill on 3 November 1980, C.A. was admitted to hospital in a pre-comatose state. On 5 November 1980, he was transferred by ambulance to Trabzon Hospital where he died on 12 November.

According to the autopsy report drawn up on 13 November 1980, the following marks were found on the body of the deceased:

“Abrasions measuring 3 x 3 cm, going from the outside towards the inside of the eighth and ninth ribs, the scabs of which were coming off; on the right wrist and on the inside of the wrist, a purple mark in the form of two parallel bracelets 1.5 cm wide and on the mark, two wounds, the scabs of which were coming off; on the left wrist, the same mark, 1.5 cm wide; on the left side of the penis, a wound without a scab; on the left foot, a wound with a scab measuring 2 x 1 cm, with, underneath, a bruise measuring 3 x 3 cm; four wounds with scabs under the left knee, a wound with a scab measuring 5 x 1 cm inside the left tibia ...; bruising on the top and lateral surface of the right foot.”

Since the cause of death could not be established on the basis of this information, a conventional autopsy was performed. An examination of the skull and ribcage revealed “ecchymosis measuring 3 x 4 cm at the back, a large haematoma inside the cervical cavity; an infection of the lungs ...” A post-mortem examination was deemed necessary.

In her complaint lodged with the public prosecutor on 28 January 1981, the applicant stated:

“Two soldiers, accompanied by the village schoolmaster came to our house on the day before the religious holiday. They took my husband away saying that the lieutenant wanted to talk to him. He was held at the village gendarmerie for approximately four days. During that time, I was able to visit him and he was well. He was then transferred to the gendarmerie in the district of Şavşat; I was no longer able to visit him. I was told that he remained there for six days and was then taken to Artvin .... When they returned his body to me, I noticed abrasions and signs of injuries. His tongue was as big as that of an animal, three of his teeth were broken, ... there were marks of torture all over his body. Before being arrested, he had been in good health.”

According to the administrative investigation report (idari tahkikat raporu) of 15 February 1981 signed by three officers, during the course of a military operation on 18 October 1980 C.A. had been arrested after having obeyed an order to surrender. On the same date he had been placed in custody at the Veliköy gendarmerie, where he remained for three days. He spent the following five days at the gendarmerie of the district of Şavşat. During this period no sign of any health problem was recorded. On 26 October 1980 C.A. was transferred to the police headquarters at Artvin where he was questioned. After having been held at the police headquarters for seven days, he was transferred, on 2 November 1980, to the surveillance facility (Gözetim evi) attached to the martial law command. According to the records of that establishment, no sign of illness had been noted upon his arrival. On the following day, at his request, he was transferred to Artvin Hospital. The head physician at that hospital stated that he had asked C.A. if he had been hit on the head or on the body; C.A. allegedly replied that he had not. According to the report drawn up by the hospital, meningitis and pneumonia were diagnosed. Two days later, the patient was transferred to Trabzon Hospital where he died on 12 November. The report concluded that this was a “natural death” (ecel).

On 15 June 1981 three police officers, S.A., İ.Ü. and H.Ö., were questioned as suspects by the martial law prosecutor. They were the police officers who had taken C.A.’s statement on 21 October 1980 in a room at the sports hall. The police officers stated that they had not subjected C.A. to any mistreatment and had not found any evidence against him during questioning. H.Ö. stated that on 26 October 1980, when the report was being drawn up in the presence of C.A., the latter was groaning. When the police officer asked what the matter was, the applicant replied that he had caught a chill and that he had pains in his chest. The three police officers stated that they had brought C.A. to the gendarmerie on 26 October 1980, that on the same day he was to have been placed in the military prison at Artvin, but was detained in custody by the gendarmerie until the following 1 November, notwithstanding the orders of the martial law commander.

On 11 November 1981, at the request of the Şavşat public prosecutor’s office, the body of C.A. was exhumed in order to examine the deceased’s skull. According to the report dated 21 September 1982 drawn up by the forensic institute, the skull showed no sign of trauma, apart from separation at the right temporo-occipital suture.

According to the report of 3 December 1982 issued by the Istanbul forensic institute upon completion of the post-mortem examination of samples of tissue taken from C.A.’s body, the latter had died of pneumonia with spinal haemorrhaging (subaraknoidal kanama) having lasted seven days, and showed no signs of traumatic injury.

In an indictment dated 19 April 1983 drawn up by the military prosecutor at the martial law command, the three police officers (see paragraph 14 above) on duty at the material time at Artvin police station were accused of having caused the death of C.A. after torturing him. The prosecutor stated that the accused had interrogated C.A. in a sports hall instead of in the customary location and that they had concealed their names at the foot of his statement, in breach of the relevant regulations. He also referred to the statements of several witnesses who had seen C.A. on the premises of Artvin police station, once attached to the wall, his arms outstretched, and another time in a deplorable condition, paralysed and unable to speak.

The applicant joined the criminal proceedings brought before Erzurum Military Court No. 2 attached to the martial law command (“the military court”).

On 31 August 1983, a gendarme, F.I., examined as a witness before the Military Court, stated that he had “maybe seen” C.A.’s interrogation but had not participated in it. He stated that he had not noticed any ill treatment during the interrogation, which had been conducted on the top floor of gendarmerie premises or in the sports hall. He stressed that as commander of the gendarmerie centre (jandarma merkez komutanı), his role was limited to appointing the interrogation team guards.

The report of 17 February 1984, unanimously adopted by the plenary meeting of the forensic institute, reads:

“On 3 November 1980, while in police custody, C.A. was taken to Artvin Hospital in a comatose state. First aid was administered on the basis of the diagnosis of meningitis and pneumonia. On the following 5 November, he was transferred to Trabzon Hospital in a comatose state, with hemiplegia on the left-hand side. He died on 12 November 1980. The ecchymoses noted at the autopsy revealed that violence and assault had been involved and that the party concerned had died of an intracranial haemorrhage. As regards the clinical presentation, a pre-existing underlying condition was noted which prepared the ground for the haemorrhage which was triggered by the trauma. Since a causal link has been established between the cranial trauma and the death, Articles 451 or 452 § 2 of the [Turkish] Criminal Code are applicable in the instant case.”

The accused denied the charges against them throughout the proceedings. They declared that they had never had any contact with C.A. save at the start of the interrogation. Certain witnesses who had initially testified against the accused subsequently retracted their statements.

In a judgment of 15 May 1984, the accused were each sentenced to three years and four months’ imprisonment under Articles 243 and 452 § 2 of the Criminal Code.

The accused, the applicant and the martial law commander appealed on points of law.

In a judgment delivered on 28 December 1984, the Military Court of Cassation quashed the first-instance judgment on the ground that the degree of responsibility of the other persons, notably officers and members of the National Intelligence Organisation (Millî İstihbarat Teşkilatı, hereafter “the MİT”) having taken part in the interrogation of C.A., had not been established and that the defence witnesses had not been heard.

After having conducted a more thorough investigation and having examined further witnesses, in a new judgment of 4 March 1986 the first-instance court acquitted the three police officers on grounds of insufficient evidence.

The applicant again appealed on points of law.

By a judgment of 15 October 1986, the Military Court of Cassation again overturned the judgment at first instance. In its judgment it stated that the records of the Veliköy command contained no entry concerning C.A. and that there was therefore no accurate information on the dates of his arrival or transfer or the identity of the officers in charge of his case. It added that, furthermore, the case file contained no details of the place and conditions of the initial interrogation conducted on 21 October 1980, or the actual conditions of the interrogation of 26 October. It pointed out that even though the accused had stated that the deceased was not “a significant suspect” the fact that agents of the MIT had participated in his interrogation suggested the opposite. In the opinion of the court, the treatment subsequently inflicted on the party concerned confirmed this argument. The Court of Cassation concluded that given that C.A. had been interrogated and tortured during his detention on the gendarmerie premises and up until 2 November by the accused and other persons whose functions had not been ascertained, the omissions in the investigation had to be remedied and, in particular, the gendarmes, the members of the MIT and any other persons present at the material time and place should be questioned.

On 28 January 1987 Turkey’s recognition of the right of individual petition became effective.

The case file was returned to the Military Court, which, after having re-examined it in the light of numerous new witness statements, confirmed its decision of 16 August 1988 acquitting the accused. It concluded that the act of torture had been committed between 26 October and 2 November 1980 by persons other than the accused. It gave notice (ihbar) that a new investigation was to be opened by the Artvin public prosecutor’s office. That decision became final on 21 December 1988.

The investigation and correspondence between the military courts and the Artvin public prosecutor’s office continued. However, a gendarme, M.C., examined as a witness on 3 April 1990 before the Akyazı Criminal Court, following a request for judicial assistance, stated that he had taken leave on 12 October 1980 for a period of one year.

By an indictment of 21 June 1990, the prosecutor at the Artvin Assize Court (“the Assize Court”) charged two new accused, F.I. and M.C., gendarmes at the Artvin gendarmerie, who had been examined as witnesses before the military courts (see paragraphs 19 and 30 above) with the acts of torture having caused the death of C.A.

The applicant sought to intervene in the proceedings before the Assize Court.

Monthly hearings were conducted before this court. Ten or so witnesses were questioned, some following a request for judicial assistance. Some hearings were postponed as a result of problems in ensuring the appearance of witnesses who for the most part had been co-detainees of the deceased and present on the premises on which he had been subjected to the torture. All the witnesses stated that they had seen C.A. being tortured and some stated that they had seen the accused at the scene of the crime.

At the hearing of 8 October 1990 the applicant stated, inter alia, that her husband had been unrecognisable when she saw him at Trabzon Hospital. She filed a complaint against the first doctor who had examined him in Artvin and who had drawn up a certificate, which, according to her, was untruthful, concealing C.A.’s condition.

By a decision of 30 January 1991 the Assize Court sentenced both of the accused to four years and two months’ imprisonment under Articles 243 § 2 and 452 § 2 of the Criminal Code. They were also banned from public office for the same period.

On an appeal by the accused, the Court of Cassation overturned that decision in a judgment of 10 July 1991 on grounds of shortcomings in the investigation. An inconsistency between the leave dates of the accused needed to be resolved and verification was required that the dates on which the witnesses and C.A. had been detained actually did coincide.

After having remedied the shortcomings highlighted by the Court of Cassation, the Assize Court decided, on 16 September 1992, to acquit both of the accused on grounds of insufficient evidence.

The applicant appealed on points of law against that decision.

By a judgment of 6 July 1993, the Court of Cassation overturned the decision on the ground that under Article 253 of the [Turkish] Code of Criminal Procedure, the accused, who were officers at the material time, could not be tried without authorisation from the Ministry of Justice.

By a decision of 19 January 1994, the Assize Court suspended the proceedings for the same reason.

The authorisation in question having been granted by the Ministry of Justice on 24 November 1994, a new indictment was issued on the following 7 December in respect of the same two accused, this time by the Public Prosecutor at the Ardahan Assize Court.

During these proceedings, around twenty hearings were held. As they had done previously, the accused denied any responsibility in the death of C.A., stating that they had never taken part in his interrogation. F.I stated that on the day in question he had been involved in operations in the Şavşat and Ardanuç mountains, and M.C. stated that he had been on leave. The same witnesses (see paragraph 33 above) were examined again, some following a request for judicial assistance, and repeated the statements made at the start of the proceedings.

On 30 December 1997 the Ardahan Assize Court delivered its judgment, referring in particular to the testimony of the co-detainees who had been present at Artvin police station at the same time as C.A. Four of these witnesses stated that they had seen C.A. naked, attached to the radiator, wet and trembling, with injuries to his hands and wrists. Two of them stated that officer F.I. had threatened them, pointing at C.A. and saying “Look at what has happened to him; if you don’t sign, the same thing will happen to you.” A detainee who had been in the neighbouring cell stated that he had heard C.A. moaning constantly, that in the evenings they would take him away for questioning naked, and that officers M.C. and F.I. and three men in civilian clothing would beat him in the middle of the room as a lesson to the others. Another witness stated that he had seen F.I. and others beat C.A. with truncheons while he was lying on the ground in a pool of water, all the while continuing to spray him with water. He stated that he had heard the sound of a magneto (a magneto-electric machine) and the delirious voice of C.A. uttering the names of his children, unable to walk, his body covered in wounds. These eyewitnesses stated that they had generally had their eyes covered but that sometimes the blindfold had come off, or they had recognized the officers’ voices. Four other detainee witnesses stated that they had seen that the applicant had been tortured, but did not know who had done it. The court considered that the testimony of the co-detainees was only partially credible given their status as detainees and the fact that they would normally have had their eyes covered. In the reasons for the judgment, the court observed that the leave records relating to M.C. kept by the gendarmerie command had been falsified and declared that his statements were not credible. As for F.I., the court pointed out an inconsistency between his statement of 31 August 1983 (see paragraph 19 above) and his subsequent statements. According to the court, the accused were indirectly responsible for the death of C.A. It added that “a team of three civilians” had also taken part in the interrogations, but gave no details of the identity, function or action of these three individuals. It concluded that it had not been definitively established that the accused had themselves tortured the deceased but that they had acted as accomplices to the illegal act by issuing orders (talimat vermek), by procuring the premises (yer tedarik etmek) and by failing to intervene [to prevent the illegal act] (göz yummak). It found that the accused, together with civilians, had participated in the interrogation of C.A. and that the latter had died as a result of his pre-existing condition (önceki hastalığı) and as a result of the torture inflicted by one or more of these civilians whose identity could not be established. The court sentenced M.C. and F.I. to two years and one month’s imprisonment under Articles 243 and 452 § 2 of the Criminal Code. The court accepted two mitigating circumstances to reduce the sentences: the personality of the accused as evidenced by the case file (dosyadaki kişilikleri) and the fact that they were mere accomplices (fer’î fail) rather than the main perpetrators of the crime.

The accused officers and the applicant appealed on points of law.

By a judgment of 22 December 1998, the Court of Cassation upheld the judgment of the Assize Court.

On 28 January 1999 the Court of Cassation rejected an application for “rectification of the judgment” (karar düzeltme) lodged by the convicted officers.

On 6 April 1999 the officers applied to the Assize Court for renewal of the judgment (yargılamanın yenilenmesi), an exceptional review procedure. The result of this application, accepted by the Assize Court for consideration on the basis of various written testimonies submitted by civilians and military personnel and a letter from the General Gendarmerie command, was that execution of the sentences was suspended.

At the request of the accused, the Assize Court gave a decision on 12 January 2001 referring a matter concerning the discriminatory nature of a provision governing the content of an amnesty law to the Constitutional Court.

By a decision of 18 July 2001, the Constitutional Court declared that the provision in question was by no means unconstitutional.

By a judgment of 23 October 2002, after having heard new defence witnesses, notably six officers, the Ardahan Assize Court dismissed the application lodged by the two officers on the ground that the new evidence was not such as to create a favourable situation for the convicted officers. It lifted the stay of execution of their sentences.

The officers finally referred their case to the Minister of Justice for the latter to lodge an appeal with the Court of Cassation (Yazılı emir ile bozma) against their conviction. Having accepted their application, on 8 January 2003 the Minister of Justice ordered the Principal Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law on the ground that the evidence had not been properly assessed by the Assize Court.

By a judgment of 30 January 2003, the Court of Cassation dismissed the officers’ application.

The officers continued to serve in the army throughout the proceedings until their retirement. Their sentences have not been executed to date.

The relevant parts of the above-mentioned provisions of the Criminal Code in force at the material time read as follows:

“... any public servant who tortures an accused or employs cruel, inhuman or degrading treatment to make him confess to a crime shall be liable to a maximum term of five years’ imprisonment plus a permanent or temporary ban on holding public office. ...”

”Should death occur as a result of assault or violence inflicted with no intent to kill, the perpetrator shall, in the cases listed in Article 448 ... be liable to a minimum term of eight years’ imprisonment ...

Where death results from circumstances which had existed prior ... to the offence and were unknown to the offender or from chance circumstances that the offender could not foresee, he shall, in the cases listed in Article 448, be liable to a minimum term of five years’ imprisonment ...”

Article 152 of the Turkish Constitution provides that where a claim of unconstitutionality is referred to a court by one of the parties to the proceedings, and where that court considers that the question should be referred to the Constitutional Court, that referral shall suspend the proceedings before it for a period of five months. If the Constitutional Court fails to reach a decision within that period, the court shall deliver its judgment under the existing legal provisions. However, if the Constitutional Court gives a ruling before the lower court has given its final decision, the lower court is obliged to comply with it.