CASE OF HACHETTE FILIPACCHI ASSOCIES v. FRANCE

In its 19 February 1998 edition the French weekly magazine Paris-Match, published by the applicant company, featured an article in its “News” section entitled 'La République assassinée' (The Murdered Republic), concerning the murder of the Prefect Claude Erignac in Ajaccio, Corsica, on 6 February 1998.

The article was illustrated by a photograph of the scene, taken moments after the murder, showing the prefect's body lying on the ground.

The article was published a week after the murder, by which time the news had been extensively covered and commented on in the media, both in the printed press and on television, including the national channels.

The magazine's two-page colour photograph showed Mr Erignac's lifeless body lying on the ground, his face turned partly towards the camera. In the right hand corner of the picture, under the headline 'La République assassinée', the following commentary could be read:

“On this Ajaccio pavement, on Friday 6 February at 9.15 p.m., Claude Erignac, Prefect of Corsica, wrote a tragic page in our history with his blood. No prefect had been killed in France since Jean Moulin in 1943 ... In 1998 the bullets fired into the back of this unarmed man, who was on his way to listen to Beethoven's “Heroic Symphony”, will shake all those who thought terror was something you get used to out of their stupor. In the book of condolences opened at the prefecture, many Corsicans, proud as they are reputed to be, will write their “shame”. They will applaud President Chirac when, at the memorial in Ajaccio to all those who gave their lives for France, he reaffirms the values of the Republic. Values which, today, have become a challenge.”

On 12 February 1998 Claude Erignac's widow and children lodged an urgent application against several companies (including the applicant company) seeking the seizure, under Article 809 of the new Code of Civil Procedure, of all copies of magazines containing the aforesaid photograph (including Paris-Match) and prohibition of their sale on penalty of fines. They also sought an award of damages in the sum of 150,000 French francs (FRF) payable jointly and severally by the defendants.

The claimants submitted that the purpose of publishing the photograph of the bloody, mutilated body of the Prefect of Corsica was by no means to inform the public but purely commercial, and constituted a particularly intolerable infringement of their right to respect for their private life.

The defendant companies replied that the picture of a person who died in a public place because of the post he occupied could not constitute either a violation of his family's right to respect for their private life or a manifestly unlawful infringement warranting the intervention of the urgent-applications judge when the picture had been published in the context of a political and judicial event that amounted to a national tragedy and, furthermore, had been published and disseminated by numerous other press agencies and television channels, including public ones.

By an order of 12 February 1998, the President of the Paris tribunal de grande instance, under Article 809 § 1 of the new Code of Civil Procedure, found against the applicant company and the other defendant companies for the following reasons:

“... the claimants contend that, in spite of being put on notice, the weekly magazines Paris Match and VSD published in their editions which went on sale on 12 February 1998 a photograph of the bloody, mutilated body of Claude Erignac, Prefect of Corsica, who was murdered in Ajaccio on 6 February 1998;

... it is established that the public's right to information authorises a newspaper to inform its readers, in words or in pictures, of any exceptional event that amounts, as in this case, to a national tragedy, drawing it to the attention of public opinion;

... this fundamental right has its limits only in a publication which is particularly intolerable, because the excessively serious nature of the text or picture is liable to cause the victims unbearable distress, the nature and extent of which are for the urgent-applications judge to determine, in keeping with the provisions of Article 809 § 1 of the new Code of Civil Procedure;

... in the instant case the publication of the photograph showing the dead body of Prefect Claude Erignac lying in the street cannot but constitute an intolerable injury to the feelings of the claimants, who have undergone a particularly serious emotional shock in view of the exceptional circumstances of the murder;

... the need for information cannot justify the existence of such an infringement – even if the photograph in issue, which was taken in a public place, was touched up and published by different news sources – without every effort being made to preserve the dignity of the murdered prefect's body and show a minimum of consideration for the feelings of the claimants, for whom time had not yet alleviated the horror of their ordeal;

... however ... a seizure order would be unenforceable in practice, and disproportionate to the nature of the infringement complained of, for which compensation could be sought in court ...”

The urgent-applications judge ordered the applicant company to publish the following statement at its own expense in the following issue of Paris-Match, in a box measuring fifteen centimetres by fifteen centimetres, under the heading “Court-ordered statement” in bold characters one centimetre high:

“By order of 12 February 1998, the Paris tribunal de grande instance, acting on an application in urgent proceedings, declared that the photograph published by Paris Match in its 19 February 1998 issue, showing the dead body of the Prefect Claude Erignac, caused Mrs Erignac and her children considerable distress.”

The applicant company appealed against that order, submitting that the measure concerned amounted to a violation of press freedom and the right to inform guaranteed under Article 10 of the Convention. It argued that the photograph in issue was the dark, subdued image of a historic event and, as such, could not constitute an intrusion into the Erignac family's private life. The applicant company also disputed the alleged indecency of the photograph.

In a judgment delivered on 24 February 1998 the Paris Court of Appeal upheld the interim order, but modified the content of the statement. Having had regard, in particular, to Article 10 of the Convention, the Court of Appeal ruled that:

“... under the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, exercise of the right to freedom of expression may be subject to such penalties as are prescribed by law and are necessary in a democratic society for the protection of the rights of others;

... Article 9 § 2 of the Civil Code embodies a penalty that meets the requirements of the aforesaid provisions, namely that judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.”

... in the instant case ... the offending photograph, as published ... by the weekly Paris-Match, clearly shows the body and face of Claude Erignac, lying on the ground in a street in Ajaccio in the moments following his murder on 6 February 1998;

... the publication of that photograph at a time when Mr Erignac's close family was still in mourning, as it was done without their consent, constituted a gross intrusion into their grief and, accordingly, the intimacy of their private life;

... in the presence of such an intrusion an urgent-applications judge who finds, as in the instant case, that he is unable materially to make the intrusion cease, by a seizure measure, for example, is empowered by the last of the laws mentioned above to prescribe any other appropriate measure;

... it follows that the measure of publishing a statement prescribed by the first judge is legally justified under the provisions of Article 9 § 2 of the Civil Code, provided that its purpose is to cause the intrusion into the Erignac family's private life to cease;

... in order to satisfy that requirement, the content of the statement should be modified in the manner prescribed in the operative provisions of this judgment, and the decision ordering its publication should be combined with a fine ...”.

The Court of Appeal ordered the publication, in the first issue of Paris-Match to be published after the judgment had been served, of a statement worded as follows:

“... in bold characters half a centimetre high, under the heading “Publication of court judgment”, in a box measuring 15 x 7.5 centimetres:

“In a judgment of 24 February 1998, the Paris Court of Appeal ordered the publication of the following statement:

The photograph of the body of Claude Erignac lying on the ground in a street in Ajaccio which appeared in edition 2543 of the weekly Paris Match, dated 19 February 1998, was published without the consent of Claude Erignac's family, who consider its publication as an intrusion into the intimacy of their private life” ...”

The applicant company lodged an appeal on points of law, claiming among other things that there had been a violation of Article 10 of the Convention.

In a judgment of 20 December 2000 the Court of Cassation dismissed the appeal for the following reasons:

“... having noted that the photograph published clearly showed the body and face of the murdered prefect lying on the ground in a street in Ajaccio, the Court of Appeal was able to rule that the picture concerned showed disregard for human dignity and that its publication was illegal, its decision thus being legally justified with regard to the requirements of Article 10 of the European Convention and Article 16 of the Civil Code ...”.

The Erignac family brought no proceedings on the merits.

Article 808 reads as follows:

“In all urgent cases the President of the tribunal de grande instance may order any interim measures which are not seriously disputable or are justified by the existence of a dispute.”

Article 809 reads as follows:

“The president may order at any time, even in the event of a serious dispute, such measures to preserve or restore the present position as are necessary either to prevent imminent damage or to put an end to a manifestly unlawful infringement.

Where the existence of an obligation is not seriously disputable, he may award an advance to the entitled party, or order the execution of the obligation, even if it is an obligation to take action.”

Article 9 provides:

“Everyone has the right to respect for his private life.

Judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.”

Article 16 of the Civil Code provides as follows:

“The law ensures the primacy of the person, prohibits any infringement of a person's dignity and guarantees respect for the human being from the beginning of life.”

Section 38, paragraph 3, of the version in force at the material time – which was repealed on 16 June 2000 – provided:

“[A fine of 25,000 French francs] shall be applicable in established cases of publication, by any means, of photographs, engravings, drawings or portraits reproducing all or part of the circumstances of any of the crimes and offences provided for in chapters I, II and VII of part II of book II of the Criminal Code.” [which cover murder, among other things].


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1958 and lives in Ryazan.

On 29 March 2000 the applicant and two other individuals were detained on suspicion of having committed an assault and infliction of grave bodily harm resulting in death. The applicant’s challenge of the custodial measure of restraint was rejected on 11 August 2000.

On 8 September 2000 the preliminary investigation was completed. The applicant did not study the case materials as his legal counsel were unable to assist him at the time due to illness and involvement in different proceedings.

On 29 September 2000 the applicant signed the undertaking not to leave the town and was released. He and his counsel did not appear at the investigator’s summons to study the case materials.

From 12 October to 13 November 2000 the applicant stayed in hospital. Following his and his counsel’s repeated failure to familiarise themselves with the case materials, the investigator set the deadline at 25 April 2001.

On 3 May 2001 after finalising the bill of indictment the prosecutor decided again to place the applicant in detention, which was subsequently extended by the court on several occasions and upheld by decisions of 27 February 2003, 4 December 2003, 24 February 2004, 10 June 2004 and 12 August 2004 of the Ryazan Regional Court (“the Regional Court”).

The Ryazhskiy District Court of the Ryazan Region received the applicant’s case for examination on 8 May 2001. By decision of 22 May 2001 the court adjourned the proceedings due to the applicant’s illness.

The next hearing scheduled for 2 July 2001 did not take place due to the counsels’ failure to appear.

At the hearing of 17 July 2001 the applicant requested that he be given one month to study the case-file but could not do so as both of his counsel were on vacation. On 28 September 2001 the court limited the time granted to the applicant to study the case-file by 1 November 2001.

The next hearing scheduled for 20 November 2001 did not take place due to the judge’s illness.

On 8 January 2002 president of the Ryazhskiy District Court requested that president of the Regional Court assign the applicant’s case to a different trial court due to the fact that the judge who was considering it was ill and the other judges had already taken part in the proceedings in some form and could not examine the case. On 22 January 2002 the applicant’s case was transferred to the Ukholovskiy District Court of the Ryazan Region (“the District Court”).

At the next hearing scheduled for 27 February 2002 the court granted the defence’s request for an outpatient psychiatric examination and a graphologic examination.

On 20 June 2002 the court commissioned an inpatient psychiatric examination which was held on 2 December 2002. The applicant did not object to the composition of the trial court and did not challenge the judges.

Between 14 January 2003 and 14 September 2004 twenty two scheduled hearings did not take place due to the counsels’ failure to appear; on twenty occasions it was the default of the applicant’s counsel. Following the applicant’s refusal to continue examination of the case in his counsel’s absence, on several occasions president of the District Court requested replacement of the counsels at the Tambov and Ryazan regional bars as well as the Ryazan Region Lawyers’ Council. It is not clear whether or when this measure became successful.

On 21 September 2004, in presence of the applicant’s legal counsel, the District Court convicted the applicant as charged and sentenced him to 13 years’ imprisonment. It also granted the civil suit again him.

In his grounds of appeal the applicant challenged the bench which had delivered the conviction alleging defects in the appointment of the lay judges.

On 24 February 2005 the Regional Court upheld the judgment on appeal. It also found that the trial court had been composed in accordance with the law and that the applicant had failed to challenge the bench during the trial.

Article 50.3 of the Russian Code of Criminal Procedure of 2001 provides that in the event of a counsel’s failure to appear during 5 days after a motion for legal assistance, the court may invite the accused to retain a different counsel or assign a legal-aid lawyer.


The applicant is a Polish citizen born in 1975. She is a student residing in Toruń.

A.

In 1984 the applicant’s father opened on her behalf a special housing savings account in the State Savings Bank in Toruń, with the purpose of financing a future purchase of a house or apartment for the applicant after her coming of age. Until November 1987 he effected monthly payments to the account.

On 12 May 1997, on the applicant’s request, the Toruń branch of the State Savings Bank informed her that her savings accumulated on the account amounted to a sum of 5,693 of new Polish zlotys (PLZ), including a housing award, in case she was entitled to it.

In a letter to the Director of the Toruń branch of the Bank of 8 July 1997, the applicant submitted that the then real value of a house in Toruń was equivalent to 108,500 PLZ. Thus, there must have been an error in the calculation of her savings, as the terms of the housing savings account guaranteed her that at the closing of the account the monies deposited on it would be reassessed so as to maintain their purchasing power to the level of price of seventy square metres of an individual house. She pointed out that the sum she had on her account was not in reasonable proportion to the current price of housing. She therefore requested that the error be rectified.

In his reply of 17 July 1997, the Director informed the applicant that the calculation of her savings, and in particular of sums due to her as housing award, had been correct. Under the applicable regulations contained in the Ordinance of the Council of Ministers of 7 May 1996, concerning the manner of calculation and payment of housing award and on clearing of accounts between the National Bank of Poland and the State Savings Bank, the following factors were taken into account in the calculation of the award: the length of the period of saving, the sums deposited by the client, the sums paid each year, the average price of housing and the interest rate applicable throughout the relevant period. It was further stressed that the owner of the account was entitled to the housing award calculated on the basis of sums paid in years during which the average price of one square metre of housing had been rising more quickly than the interest rate to be paid on the sums deposited on the housing savings account. In conclusion, the calculation of the sums accumulated on the applicant’s savings account which had been effected according to the formula set forth in the Ordinance, was correct.

In a letter to the Minister of Finance of 18 September 1997, the applicant submitted that the sums as calculated by the bank would cover the price of only four square metres of housing at current market prices. Therefore, contrary to the terms of the housing savings account, guaranteed by the State, she would not be able to purchase a house. She complained that this amounted to fraud, which should not be countenanced by the State. She requested that her savings be reassessed.

In a letter of 7 October 1997 the Department of Finances of the National Economy of the Ministry of Finance informed the applicant that the savings accumulated on the housing savings accounts were subject to two forms of reassessment with the purpose of offsetting the effects of inflation. The first one was the privileged interest rate which, since 1983, was equal to that applicable in respect of long-term savings accounts. Secondly, the owners of the accounts could be awarded housing awards paid directly from the State budget. These awards were designed to compensate the reduction of value of sums accumulated on the housing savings accounts caused by inflation and by augmentation of prices of housing resulting therefrom. However, the sums of awards due to individual clients were to be calculated on the basis of the savings accumulated by the client. It was further stressed that, in practice, most often the owners of such accounts accumulated sums equivalent to ten to twenty per cent of the necessary minimum contribution to be paid to housing co-operatives in order to become a full member (“wkład”). The expectation that the housing award would cover in full the difference between this sum and the actual full costs of building of a house was not justified. The applicant was further informed that it was only the bank at which the account had been opened which was competent to reassess the sums of savings deposited on the account.

On 3 November 1997 the applicant complained to the Ombudsman about her situation.

In reply of 21 November 1997 the Ombudsman informed the applicant that he had repeatedly drawn the attention of various State authorities, including the Prime Minister, the Minister of Finances, the Minister of Construction and Planning, to the issues raised by her. These problems arose out of the fact that the persons who had been saving, frequently for years, on the housing savings accounts, were often not in a position to pay the entire price of housing. This was, in part, due to the fact that the issues relating to housing awards, the interest rate applicable to housing savings accounts and the reassessment of the sums deposited on these accounts so as to offset in full the results of inflation had not been comprehensively resolved by the legislator in a manner which would be entirely compatible with the initial obligations of the State. Regrettably, the Ombudsman did not have at his disposal any effective means which would enable him to oblige the legislative and executive authorities to take any steps to solve the problems of persons in the applicant’s situation, who had expected that they would be able to finance their housing under the scheme put in place by the 1983 legislation. Consequently, he could take no further action in the applicant’s case.

B. Relevant domestic law

Pursuant to the terms of the housing savings account, as set out in the Ordinance of the President of the National Bank of Poland of 24 February 1983, the State guaranteed that the monies accumulated on the housing savings account in the State Savings Bank were to be reassessed so as to maintain their purchasing power. This guaranty covered only sums up to the costs of construction of either 70 square metres at an individual family house or 55 metres of an apartment built by a housing co-operative. This guarantee was to be paid in the form of a housing award. The owner of the account was entitled to obtain the housing award if, in the year in which he or she wished to close his or her account and allocate the monies accumulated on it to finance the purchase of a house or apartment, the average price of one square metre of housing was higher than it had been in the preceding years, and this increase had been higher than the increase of the interest rate applicable to the monies deposited on the housing savings account.

Under the Council of Ministers' Order of 22 June 1993 the persons who have accumulated savings on the housing savings accounts in the State Savings Bank opened before 23 October 1990, which had remained opened for not less than five years, were entitled to housing award if they had bought or built a house or apartment, or adapted non-housing space to housing purposes and had paid for it from their own resources. It was the State Treasury which financed those payments and technically they were to be carried out by the State Savings Bank.

In its resolution of 29 July 1993 the Supreme Court decided that under the provisions of the Civil Code as amended in 1990, the housing savings were not subject to reassessment by the State Treasury which would offset the results of inflation in full. In taking this decision the Court had regard to the provisions of the Civil Code pertaining to a possibility of reassessment of pecuniary obligations in view of inflation. These provisions expressly excluded such a possibility in respect of sums deposited on bank accounts.

As regards the housing savings awards, the Supreme Court further decided that those awards were not subject to reassessment either. The Court observed, inter alia, that the problem concerned approximately five million citizens who had accumulated housing savings. A reassessment of the housing awards for all the persons concerned by the State Treasury would not be economically feasible as it would put an undue burden on the State budget. The Court further observed that, in any event, the Council of Ministers' Order of 22 June 1993 provided for a partial reassessment of such awards in the circumstances and on the conditions set forth therein.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Raymond Swindlehurst, is a British national who was born in 1945 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 7 October 1997. In December 2000, the applicant made a claim for widows’ benefits. On 7 December 2001 the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant applied for reconsideration. On 2 February 2002 reconsideration took place and the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);No violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 13+9 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+P1-2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 8 - Right to respect for private and family life;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court's consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996-VI, p. 2223, §§ 16-17):

“16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army's headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.

The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns 'TRNC citizens' by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the 'TRNC'.”

A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985.

This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.

According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations.

United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General's Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”.

Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations.

The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that “the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute”. In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute (see paragraph 16 above). The Committee of Ministers viewed this decision as completing its consideration of the case.

The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission's 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed.

The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”.

These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.

The Court considers it appropriate at this stage to summarise the Commission's findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission.

The applicant Government essentially claimed in their application that about 1,491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State.

The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention.

The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention.

To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission's opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life.

In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons.

The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission's earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries.

The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims' relatives.

The Commission further concluded that its examination of the applicant Government's complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP's investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory.

The Commission established the facts under this heading against the background of the applicant Government's principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with “TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the “TRNC” authorities without payment of compensation and its re-assignment, together with “title deeds”, to State bodies, Turkish Cypriots and settlers from Turkey.

The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the “TRNC” authorities.

The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government.

The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the “TRNC” authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion.

Nor did the respondent Government dispute the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the “abandoned” property and its allocation. The beneficiaries of allocations were issued with “possessory certificates” but not “deeds of title” to the properties concerned. However, as from June 1989 the practice changed and thereafter “title deeds” were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of “Article 159 § 1 (b) of the TRNC Constitution” of 7 May 1985 and “Law no. 52/1995” purporting to give effect to that provision.

Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district.

The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “TRNC” courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus.

The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the “TRNC”. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made.

The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the “TRNC” courts on the availability of remedies in the “TRNC”; “TRNC legislation” and decisions of the “TRNC Council of Ministers” on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General's progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called “Karpas Brief”.

Furthermore, the Commission's delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the “Karpas Brief” as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits.

The Commission considered the above-mentioned “Karpas Brief” an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General's progress reports on the “Karpas Brief” recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any “TRNC legislation” and were in the nature of administrative practices.

The Commission further found that there existed a functioning court system in the “TRNC” which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested.

In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the “TRNC” authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus.

In the absence of legal proceedings before the “TRNC” courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the “TRNC Constitution”. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “TRNC Council of Ministers”, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts.

Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications.

The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the “TRNC Council of Ministers” of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced “entry fee”.

As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish-Cypriot administration.

Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television.

The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the “TRNC” police or that their telephones were tapped.

As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south.

Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots.

The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education.

The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “TRNC” to aggrieved persons.

The Commission's investigation into the applicant Government's allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission's delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998.

The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the “TRNC” policy of full integration for the settlers.

Furthermore, while there was a significant incidence of emigration from the “TRNC” for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the “TRNC” out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “TRNC” police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “TRNC” authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention.

Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa.

In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the “TRNC” authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant, Ms Lyusya Ivanovna Yermakova, is a Russian national, who was born in 1937 and lives in Yeysk.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy.

In accordance with Article 36 § 1 of the Convention, the Government of the Russian Federation were invited to exercise their right to intervene in the proceedings, but they declined to do so.

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

In the late evening of 24 January 2007 an ambulance found G.P., the applicant’s daughter, dead in the flat she had lived in with I.P., her husband.

At 12.25 a.m. on 25 January 2007 the police were notified of the death. From 1.30 to 4 a.m. an investigator from the Malinovsky District Prosecutor’s Office of Odessa, and medical and forensic experts, examined and photographed the body of G.P. and the flat. They noted numerous bruises and abrasions on G.P.’s body, took samples of a brownish substance and seized cloths and linen with brown stains found in the flat. On the same date the Malinovsky District Police Office of Odessa detained I.P., and opened a criminal case against him on suspicion of inflicting serious bodily injuries on G.P. causing her death. I.P., after being interviewed separately by the police and prosecutors, confessed to having punched G.P. in the face and abdomen. During that day two neighbours were also interviewed and an autopsy and forensic medical examination of G.P.’s larynx (throat) were ordered.

On 26 January 2007 an expert, Yu., drew up a death certificate indicating that the rupture of G.P.’s liver and closed injury of the abdomen, sustained during an “assault with the aim of inflicting injuries”, had led to significant loss of blood, which had ultimately caused her death. On the same date, three neighbours of G.P. and I.P. were interviewed. I.P., in the presence of an advocate, stated that he had only slapped G.P. lightly on the face a number of times, and that she herself had fallen and sustained all the injuries. He explained the discrepancy with his previous statements by his having been misled by the police on 25 January 2007 and having been ill at the time of making the statement.

On 29 January 2007 the applicant was recognised as an aggrieved party in the case.

On 31 January 2007 a forensic medical report of the examination of G.P.’s larynx recorded that she had sustained a complete fracture of the hyoid bone and thyroid cartilage. The expert was unable to determine what sort of object had caused the injuries.

On 1 February 2007 investigator I. of the district police ordered a postmortem and immunologic examination of G.P. and questioned I.P. again.

On 7 February 2007 expert Yu. drew up an autopsy report indicating that the liver rupture, a closed fracture of the hyoid bone and thyroid cartilage, and numerous bruises and abrasions had been inflicted with a blunt object without specific features. In the expert’s opinion the liver rupture had caused significant loss of blood, which had led to death. He also noted that G.P. had been heavily intoxicated before her death.

An immunological report of 9 February 2007 indicated that the items seized and samples taken from the flat occupied by G.P. and I.P. contained blood of the same group as that of G.P.

On 12 February 2007 expert Yu., having conducted a post-mortem examination of G.P., found that it could not be excluded that the fractures and liver rupture had been sustained as a result of the victim falling and hitting the corners of furniture.

On 28 February 2007 investigator I. discontinued the criminal proceedings against I.P. for lack of corpus delicti, basing his decision on the fact that the neighbours had not noticed anything suspicious on that day and described I.P. as a peaceful person; on I.P.’s admission that he had only lightly slapped G.P. in the face a number of times, that both of them had been drinking and that G.P. had fallen over and hit various objects on that day; that the flat had been cordoned off before the forensic examination of 25 January 2007; and that according to the post-mortem examination G.P. could have sustained her injuries as a result of falling and hitting protruding objects.

On 6 March 2007 the district prosecutors, without giving their arguments, found the discontinuation of the proceedings premature, groundless and unlawful and instructed the district police to put the case materials in order, to set up a task force and draw up a detailed investigation plan, to carry out an additional post-mortem examination, to verify I.P.’s statements of 24 January 2007, to interview expert Yu., and to attach photographs of the crime-scene examination to the case file.

On 6 March 2007 the investigation was suspended because I.P. was ill. It was resumed on 4 April 2007, when investigator I. conducted a reconstruction of the crime scene, during which I.P. essentially repeated his statement of 26 January 2007.

On 5 April 2007 investigator I. ordered an additional post-mortem examination of G.P. in order to verify I.P.’s statement in respect of the victim’s injuries.

On 5 May 2007 expert Yu. drew up an additional post-mortem report which indicated that G.P. might have sustained her serious injuries in the way described in I.P.’s statement.

On 4 June 2007 the Odessa Regional Prosecutor’s Office ordered a forensic medical examination of G.P.

On 12 June 2007 expert Yu. was questioned.

On 19 June 2007 investigator I. ordered an additional medical examination to be carried out in respect of the victim’s injuries.

On 2 July 2007 a combined forensic medical examination was carried out by experts K., R. and O., who concurred with the findings of the examination of 12 February 2007, but noted that all the injuries had been sustained shortly before G.P.’s death, and that the lethal injury might not have been sustained as a result of falling and hitting objects. On 3 July 2007 the same experts drew up an additional medical report in which they concluded that it was impossible to establish the order in which the injuries had been inflicted.

On 10 July 2007 investigator I. charged I.P. with the infliction of serious bodily injuries resulting in the death of G.P. and questioned him in that connection. There is no indication of whether the investigator complied with the prosecutors’ remaining instructions.

On 16 July 2007 the investigation was completed and on 17 July 2007 the case was transferred to the Malinovsky District Court of Odessa for trial.

On 19 December 2007 a panel of psychiatrists which had been ordered by the court to examine I.P. failed to reach a conclusion concerning the latter’s mental state on 24 January 2007, and recommended that I.P. undergo an in-patient examination.

On 27 March 2008 a panel of psychiatrists examined I.P. and found it impossible to establish his mental state without the accounts of V.B. and V.P., who, according to I.P., had been present during the events on 24 January 2007.

On 26 May 2008 the court ordered the panel to carry out another psychiatric examination of I.P.

On 19 June 2008 the panel found that I.P. had been of sound mind after 24 January 2007, but that it was impossible to establish his mental state on 24 January 2007 without the accounts of V.B. and V.P. However, on 14 April 2009 an additional psychiatric examination of I.P. established that he had been of sound mind both on and around 24 January 2007.

In May 2009 the judge dealing with the case suspended the proceedings due to the expiry of his term of office.

On 11 September 2009 the President of the court transferred the case to another judge.

On 1 March 2010 the applicant lodged a civil claim with the court seeking 250,000 Ukrainian hryvnias (UAH) in damages for the alleged murder of her daughter.

On 29 November 2010 the court convicted I.P. of the premeditated infliction of serious bodily injury resulting in death, sentenced him to eight years’ imprisonment and ordered him to pay UAH 200,000 to the applicant in compensation for non-pecuniary damage. In the reasoning of the judgment the court mentioned that I.P. had repeatedly changed his account of the events of 24 January 2007 and only in March and October 2008 had he stated that V.P., V.B., and V.A. had been present during that day and could confirm his version of the events. The court noted a number of inconsistencies in the accounts of the events of 24 January 2007 submitted by I.P. and witnesses V.A. and V.P., and substantial contradictions between their respective statements and those made by other witnesses.

The court also noted that the police officer who had interviewed I.P. on 24 January 2007 had smelled alcohol on I.P.’s breath and noticed fresh scratches on his neck, but could not explain why a medical examination or taking of nail samples from I.P. had not been ordered. The court also noted that I.P. had “manipulated” the investigator and the expert dealing with his case on a number of occasions in order to evade responsibility. It referred to: “... [his] attempt to obtain 10,000 American dollars to ‘settle the matter’, the initial autopsy report finding that G.P.’s injuries might have been sustained ‘in a natural manner’, and the termination of the proceedings on 28 February 2007 [for lack of corpus delicti in his actions] ...”. The court also noted that some witnesses had stated that I.P. had often beaten up G.P. when drunk, while other witnesses had disagreed. It also referred to the experts’ reports drawn up during the trial.

On 1 March 2011 the Odessa Regional Court of Appeal upheld I.P.’s conviction and sentence. The court noted in particular that the experts’ reports of 2 and 3 July 2007 and photographs of the crime-scene examination rebutted a number of I.P.’s statements. It found the explanations put forward by the defence for the death of G.P., such as there having been an accident, or the involvement of G.P.’s son or other individuals, to be groundless. Concerning the conduct of the investigations, the Court of Appeal found investigator I.’s actions to have been inconsistent in that he had considered I.P. to be unwell during the first interview but had not sent him for a medical examination. In that connection, the court of appeal concluded that the investigator had not taken “the measures necessary to duly investigate the case, which had subsequently been closed without determining the circumstances of the incident”. As regards the opinion by expert Yu. of 12 February 2007, the court noted that it had been drawn up before the reconstruction of the crime and had later been refuted by two panels of experts. There is no indication of the date when the applicant was informed of or received the appeal ruling, or whether she appealed against it. According to her, she was denied access to the case file during the investigation and was not invited to a number of court hearings.

In the meantime, the applicant repeatedly complained to the police, the prosecutors, the District Court, the Council of Judges and other State bodies about the lack of progress in the case.

Some thirty-two court hearings were held in the case and another twenty hearings were adjourned for various reasons, such as the applicant’s failure to appear before the court on one occasion (which protracted the proceedings for six days), the failure to appear of the defendant or his advocate, a witness’s illness, prior official commitments of judges and prosecutors, or consideration of appeals by a higher court. In the course of the proceedings the District Court conducted twenty-four interviews and ordered three expert examinations that lasted for about two months in all. During the court proceedings, the applicant filed nine procedural requests and complaints, all meeting procedural requirements. Her three requests for the withdrawal of judges were rejected as unsubstantiated.

The provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36 and 38, 4 April 2006).


The applicant, Mr Nikola Maksimović, is a Serbian national who was born in 1949 and lives in Lukićevo. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

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

In 2001 the Zrenjanin Municipality Public Prosecutor indicted the applicant for abuse of office.

On 31 March 2004 the Zrenjanin Municipal Court found the applicant guilty and imposed a suspended prison sentence (uslovna osuda) of three months. The applicant appealed, claiming that the facts established in the first-instance judgment were incorrect.

On 30 June 2004 the Zrenjanin District Court dismissed the applicant’s appeal and upheld the first-instance judgment.

On 4 December 2001 the Zrenjanin Municipality Public Prosecutor filed an indictment against Company B. and the applicant in the Zrenjanin Commercial Court for an economic offence concerning the security of payments.

Following Serbia’s ratification of the Convention on 3 March 2004, the applicant requested the competent court to stay the proceedings pending the outcome of the aforementioned criminal proceedings (Chapter A above). He claimed that the two proceedings concerned the same amounts of money and thus the same offence.

The court stayed the proceedings.

On 4 February 2005 the Zrenjanin Commercial Court requested the Zrenjanin Municipal Court to provide a copy of the case file in the other criminal proceedings. However, that court was unable to do so as the file had been sent to the Zrenjanin District Court following the applicant’s request for a reopening of the criminal case and his subsequent appeal against the refusal to do so.

Once the proceedings resumed, hearings scheduled for 27 March and 20 April 2006 were adjourned because Company B.’s legal representative had failed to appear. On the last-mentioned date the Zrenjanin Commercial Court fined Company B. for its failure to appear in court.

The court held the next hearing on 11 May 2006, when the applicant requested time to set out his defence in writing. The hearing scheduled for 28 September 2006 was again adjourned due to the co-defendant’s failure to appear. The court ordered that the legal representative of Company B. be brought to the next hearing by the police.

On 12 October 2006 the Zrenjanin Commercial Court gave judgment acquitting both the applicant and Company B. of all charges.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1929 and lives in Rzeszów.

The applicant, who was an advocate, made a declaration under the provisions of the Lustration Act 1997 that she had never secretly collaborated with the communist secret service. She only admitted that between 1945 and 1953 she had been working at the Security Office (Urząd Bezpieczeństwa) in Rzeszów as an office assistant, but in 1953 she had left the job.

On 14 April 1999 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal (Sąd Apelacyjny), acting as the firstinstance Lustration Court (sąd lustracyjny), to institute proceedings in the applicant's case under the Lustration Act (ustawa lustracyjna) on the ground that the applicant had lied in her declaration by denying her collaboration with the secret services after 1953. (This security service was known as Urząd Bezpieczeństwa, but after 1956 it was called Slużba Bezpieczeństwa.)

On 31 May 1999 the applicant was notified that lustration proceedings had been instituted concerning her declaration (oświadczenie lustracyjne).

On 9 September 1999 the Warsaw Court of Appeal, acting as the first-instance court, held a hearing in the applicant's case. The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion. She was questioned by the court and commented on the evidence at the court's disposal. The file of the case was composed of the applicant's lustration declaration, copies of certain documents contained in the applicant's file compiled by the communist secret police and of the Commissioner's application for lustration proceedings to be instituted. Towards the end of the hearing, both the Commissioner and the applicant declared that they had no request for further evidence to be taken by the court. The court closed the hearing.

However, on 13 September 1999 the applicant requested the court to take further evidence. She submitted various documents concerning her professional career, her character and morality.

On 15 September 1999 the court re-opened the hearing and admitted the applicant's documents to the case file. It then closed the hearing again.

On 16 September 1999 the court sent the applicant the operative part of its judgment of 15 September 1999, by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional, secret collaborator of the communist secret services after 1953. It further informed the applicant that the written grounds of the judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure and that she could consult them in the office of its secret registry (kancelaria tajna). As she had not appointed legal representation, the full written grounds could only be read by herself, to the exclusion of all other persons, except the Commissioner of Public Interest.

The applicant appealed.

On 8 November 1999 the Warsaw Court of Appeal, acting as the secondinstance lustration court, dismissed her appeal and upheld the firstinstance judgment.

On 22 November 1999 the same court informed the applicant that the written grounds of that judgment had been prepared under Article 100 § 5 of the Code of Criminal Procedure, and that she could consult them at the office of the court's secret registry.

The applicant lodged a cassation appeal with the Supreme Court, which held a hearing on 10 October 2000, but the applicant chose not to attend. The Court allowed the Commissioner's request to examine the applicant's appeal in camera, having regard to Article 360 § 1 (3) of the Code of Criminal Procedure. By a judgment of the same date the Court dismissed the applicant's cassation appeal.

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Under the established caselaw of the Constitutional Court, it has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999).

On 3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era. It lost its binding force on 15 March 2007.

Pursuant to section 4 of the Act, “collaboration” was understood as the “intentional and secret collaboration with the operational or investigative branches of the State's security services as a secret informer or assistant, supplying them with information”.

Section 6 (1) of the Act read:

“Persons in the categories listed in Article 7 of this law shall submit a declaration concerning work for or service in the State's security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called 'the declaration').”

Section 7 (1) contained a list of public functions and professions, the holders of which must make the declaration under Article 6.

Under section 7 (1) item 10 (a) as amended in 1998, candidates to the bar and advocates were also obliged to make such declarations. Their declarations were to be submitted to the Minister of Justice.

The declarations were also transmitted to the Lustration Court. Pursuant to section 1 of the Act, the Warsaw Court of Appeal was vested with powers to conduct lustration proceedings. Such proceedings could be instituted at the request of the Commissioner of Public Interest (rzecznik interesu publicznego).

The Commissioner would institute proceedings before the Lustration Court when he or she had doubts whether the declaration of noncollaboration was truthful.

According to section 17(d), the duties of the Commissioner included in particular:

“1. i) analysing the lustration declaration submitted to the court;

ii) collecting the information necessary for a correct assessment of the declaration;

iii) lodging an application with the court with a view to initiating lustration proceedings; ...

In carrying out his or her duties enumerated in points 1 and 2 above, the Commissioner may require to be sent or shown the relevant case files, documents and written explanations, and if necessary may hear witnesses, order expert opinions or conduct searches; in this respect, and as regards the duties described in section 17(1), the provisions of the Code of Criminal Procedure concerning the prosecutor shall likewise apply to the Commissioner.”

Pursuant to section 17 (e), the Commissioner had full access to all documents and other sources of information, regardless of the form in which they were recorded, created before 10 May 1990 by organs specified in that provision, including sources within the Ministry of Internal Affairs.

Under section 19, matters not covered by the Act and relating to lustration proceedings were governed by the provisions of the Code of Criminal Procedure.

According to section 20, the person under scrutiny was afforded the same defence rights as an accused in criminal proceedings.

The proceedings before the Lustration Court terminated with a decision on whether the declaration made by the person concerned was true. A decision of this court could be appealed to the second-instance Lustration Court. Such an appeal was examined by a different panel of three judges of the Warsaw Court of Appeal.

Pursuant to section 23, the decisions of the Lustration Court were to be served on the person concerned with their written grounds.

A cassation appeal to the Supreme Court lay against the secondinstance judgment.

The final judgment, finding a particular declaration untrue, was immediately made public in the “Official Law Gazette” (Monitor Polski).

Pursuant to section 30, the final judgment of an untrue declaration established the loss of moral qualifications which were, according to the relevant laws, necessary for the exercise of certain public functions, including the profession of advocate. It therefore entailed disbarment.

Article 156 § 4 of the Code provides that, when a danger arises that State secrets may be revealed to the public, access to the case files, making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court.

Article 100 § 5, which concerns the delivery of a judgment, provides:

“If the case has been heard in camera because of the substantial interests of the State, instead of reasons, notice will be served to the effect that the reasons have been prepared.”

Article 360 § 1 (3) of the Code provides that the court shall order a hearing to be held in camera if its public character could disclose circumstances which should remain secret in the light of important State interests.

Section 2 (1) of the Protection of State Secrets Act 1982 (Ustawa o ochronie tajemnicy państwowej i służbowej), which was in force until 11 March 1999, read as follows:

“A State secret is information which, if divulged to an unauthorised person, might put at risk the State's defence, security or other interest, and concerns in particular: ...

2) the organisation of the services responsible for the protection of security and public order, their equipment and working methods, and the data enabling the identification of their officers and persons collaborating with the security services...”

Section 86 of the Protection of Classified Information Act 1999 (Ustawa o ochronie informacji niejawnych), in its relevant part, provided as follows:

“2. Persons referred to in section 21 (1) [those authorised to sign the document and to assign a confidentiality rating], or their legal successors in relation to documents containing information classified as a State secret, created before 10 May 1990, shall within 36 months from the date of enactment of this Act, review these documents with the purpose of adjusting their current security classification to the classifications provided by this Act. Until then, these documents shall be considered classified under the provisions of paragraph 1 unless otherwise provided by law...”

Appendix No. 1 to the Act provided, in so far as relevant:

“I. Information that can be classified as 'top secret': ...

information concerning documents that make it impossible to establish data identifying officers, soldiers or employees of State bodies, services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities.”

Section 52 (2) of the 1999 Act concerned the organisation of the secret registry. It provided in so far as relevant:

“Documents marked “top secret” and “secret” (ściśle tajne i tajne) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure. In case of doubts regarding the conditions of protection, the document can be made available only in the secret registry.”

Certain limited aspects of the Lustration Act 1997 have been examined by the Constitutional Court as to their compatibility with the Constitution. In a judgment of 10 November 1998, the Constitutional Court recalled the historical background to the Lustration Act and explained its purpose:

“As can be seen from the legislative history, the main aim of the Act was to 'make it impossible to use a person's political past', the fact of cooperating with the secret services, 'for the purpose of blackmailing ... persons holding key decisionmaking functions in the Polish State'...

The concept of lustration as adopted by the legislator, in respect of the subject of scrutiny, decision-making and possible sanction in lustration proceedings, is the truthfulness of the declaration submitted under Article 6 of the [Lustration Act]. Thus, as follows directly from the Act and from the Constitutional Court's judgment of 21 October 1998, the law does not associate criminal or quasi-criminal liability with the sole fact of past collaboration with the State's security services... The legislator's intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation. The purpose of such regulation is to secure the open nature of public life, to eliminate [the possibility of] blackmail because of facts from the past which can be considered as compromising, and to submit those facts for public consideration. The collaboration itself does not prevent any citizen from exercising public functions, and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions. It is therefore not the collaboration, but the submission of a false declaration which has negative consequences for those affected.”

In a judgment of 21 October 1998 (K 24/98), the court examined the constitutionality of certain provisions of the Lustration Act as amended in 1998. These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and, also, provisions to the effect that certain categories of persons, if found to have made a false lustration declaration, were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions.

In a judgment of 19 June 2002 (K 11/02), the court held that certain amendments to the Lustration Act, enacted on 15 February 2002, were incompatible with the Constitution because Parliament (Seym) had failed to respect the legislative procedure provided for by the relevant constitutional provisions.

In its judgment of 5 March 2003 ( K 7/01), the Constitutional Court examined the compatibility with the Constitution of certain provisions of the Lustration Act which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services.

In its judgment of 28 May 2003 (K 44/02), the court examined the scope of the notion of secret collaboration as provided for by Article 4 of the Lustration Act as amended in September 2002.

The court also dealt with other problems concerning the Lustration Act in its judgments K 39/97, P 3/00, SK 10/99 and SK 28/01.

The following are extracts from Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems:

“9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services...

Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or 'decommunisation' laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.

The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.

The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”