BOIVIN v. 34 MEMBER STATES OF THE COUNCIL OF EUROPE

The applicant, Mr Philip Boivin, who has dual Belgian and French nationality, was born in 1966 and lives in Bornem (Belgium). He was represented before the Court by Mr F. Krenc, a lawyer practising in Brussels.

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

The European Organisation for the Safety of Air Navigation (“Eurocontrol”) was created in 1960 for the purpose of supervising air traffic control in the airspace of its member States, which have included Belgium and France since the beginning.

By a decision of Eurocontrol’s Director General dated 6 September 1995, the applicant was appointed to the post of chief accountant at the Institute of Air Navigation Services (a body which is part of Eurocontrol and is situated in Luxembourg) for a renewable term of five years.

On 29 February 1996 Eurocontrol’s Director of Human Resources notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant. After a specific competition the applicant was appointed again. However, the same official challenged the applicant’s new appointment on the ground that there had been no substantiated report and obtained its cancellation.

A fresh recruitment procedure was organised to fill the vacancy. However, the applicant’s name was not included on the list of qualified candidates drawn up by the new selection board. As a result, Eurocontrol’s Director General decided not to appoint him to the post. On 18 January 1999 the organisation’s Director of Human Resources sent the applicant a letter notifying him of the termination of his employment on 31 January 1999 and inviting him to discuss compensation with the legal department.

After filing a number of internal administrative complaints, the applicant took his case to the International Labour Organisation’s Administrative Tribunal (the “ILOAT” – having sole competence to settle all disputes between Eurocontrol and its staff) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him.

In a judgment of 3 November 2000 (notified to the applicant on 12 February 2001), the ILOAT, finding that the recruitment procedure had not been flawed, upheld the decisions cancelling the applicant’s appointment. However, observing that Eurocontrol had “fail[ed] in its duty ... to protect [the applicant] from the injury caused by the quashing of an appointment he [had] accepted in good faith”, the ILOAT partly granted the applicant’s compensation claim and awarded him 220,000 euros in damages.

The International Convention relating to Cooperation for the Safety of Air Navigation (the “Eurocontrol Convention”), signed in Brussels on 13 December 1960, established, as provided in Article 1, a European Organisation for the Safety of Air Navigation (Eurocontrol) to create a uniform European air traffic management system. Article 4 of the Eurocontrol Convention provides that “[t]he Organisation shall have legal personality”.

Under Article V § 2 of Eurocontrol’s Statute, annexed to the Eurocontrol Convention, the ILOAT has “sole jurisdiction in disputes between the Organisation and the personnel of the Agency, to the exclusion of the jurisdiction of all other courts and tribunals, national or international”.

The International Labour Organisation was founded in 1919 as the “International Labour Office” and since 1946 has operated as a tripartite agency of the United Nations that brings together representatives of governments, employers and workers from its member States. Its Administrative Tribunal hears complaints from officials or former officials of the International Labour Organisation and the other international organisations that have recognised its jurisdiction. The relevant provisions of the Tribunal’s Statute are as follows:

The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other international organisation meeting the standards set out in the Annex hereto which has addressed to the Director General a declaration recognising, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.”

“1. The Tribunal shall take decisions by a majority vote; judgments shall be final and without appeal.

The reasons for a judgment shall be stated. The judgment shall be communicated in writing to the Director General of the International Labour Office and to the complainant.

Article XII § 1 of the Annex to the ILOAT’s Statute reads as follows:

“In any case in which the Executive Board of an international organisation which has made the declaration specified in Article II § 5 of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice.”


Violation of Art. 3;No violation of Art. 3

The applicant was born in 1951 and lives in Barnaul.

On 12 October and 15 December 1999 and on 4 February 2000 the applicant was charged with unlawful business activities, tax evasion and fraud, respectively. Three criminal cases against the applicant were initiated.

On 4 February 2000 the applicant was remanded in custody.

On 9 August 2000 the three criminal cases against the applicant were joined.

From 10 December 1999 to 15 March 2001 the prosecutor's office of the Tsentralnyy District of Barnaul extended the preliminary investigation seven times in view of the complexity of the case.

On 29 June 2001 the bill of indictment against the applicant was issued.

On 17 September 2001 the case was transmitted to the Tsentralniy District Court of Barnaul.

On 6 March 2003 the Tsentralniy District Court of Barnaul convicted the applicant as charged and sentenced him to four years' imprisonment.

On 15 May 2003 the Altayskiy Regional Court commuted the term of imprisonment to three years and ten months and upheld the remainder of the judgment.

The applicant was released on 23 May 2003.

Following his arrest on 4 February 2000 the applicant was detained in a temporary detention centre in Barnaul (Изолятор временного содержания г. Барнаула). Thereafter, the applicant was transferred to the pre-trial detention centre no. IZ-17/1.

In the course of the preliminary investigation the applicant was returned to the temporary detention centre several times in order to participate in investigative measures. The applicant submitted, and the Government did not dispute, that he had spent seventy-nine days in total in the temporary detention centre. The parties did not specify the dates when the transfers to the temporary detention centre had taken place.

It is clear that from 4 to 20 February 2000 the applicant was held in the temporary detention centre in a cell measuring 20 sq. m. The applicant submitted that he shared the cell with thirty inmates, that there had been no beds in the cell and that the inmates had to sleep on the floor.

According to the Government, the exact number of detainees per cell could not be established because the registers had since been destroyed. The Government also submitted that the applicant's cell had been equipped with beds.

From 21 February 2000 to 23 May 2003 the applicant was held in the pre-trial detention centre no. IZ-17/1 in Barnaul.

The parties submitted the following information concerning the cells where the applicant had been held.

Relying on a certificate issued on 18 November 2005 by the pre-trial detention centre governor, the Government submitted that the applicant had been held in cell no. 208 from 21 February 2000 to 17 March 2000 and from 23 March 2000 to 15 June 2000. The cell measured 24.5 sq. m; was equipped with six beds and accommodated up to seven inmates. According to the certificate, at that time the pre-trial detention centre, which is designed to accommodate 1,135 persons, housed 2,600 to 2,790 inmates.

The applicant submitted that the cell measured 12 sq. m and had been severely overcrowded.

The Government submitted that from 15 June 2000 to 25 July 2000 the applicant had been held in cell no. 205. The cell measured 32.1 sq. m; it was equipped with eight beds and accommodated up to nine inmates. According to the same certificate, at the material time the detention centre housed 2,600 to 2,750 inmates.

The applicant submitted that the cell measured 16 sq. m and had been severely overcrowded.

The Government submitted that from 25 July 2000 to 25 March 2001 the applicant had been held in cell no. 221. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 2,320 inmates.

The applicant submitted that the cell measured 11 sq. m and had been overcrowded.

The Government submitted that from 25 March 2001 to 11 April 2001 the applicant had been held in cell no. 194. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 1,980 inmates.

The applicant submitted that the cell measured 10 sq. m and had been overcrowded.

The Government submitted that from 11 April 2001 to 14 March 2003 the applicant had been held in cell no. 192. The cell measured 24.8 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,470 to 1,980 inmates.

The applicant disagreed with the Government, claiming that during the two years of his stay in cell no. 192 it had accommodated up to twelve inmates. As a result, inmates had to take turns to sleep or slept on the concrete floor. He submitted written statements by four of his former cellmates, according to which cell no. 192 measured 11 sq. m and had been severely overcrowded.

The Government submitted that from 14 April 2003 to 20 May 2003 the applicant had been held in cell no. 128. The cell measured 120.2 sq. m; it was equipped with thirty beds and accommodated up to twenty-seven inmates. According to the same certificate, at the material time the detention centre housed 1,400 to 1,470 inmates.

The applicant submitted that the cell measured 100 sq. m. He did not comment on the number of inmates in the cell.

Relying on the certificate issued on 18 November 2005 by the detention centre governor, the Government submitted that the conditions in all of the cells had been satisfactory. In particular, the cells had been equipped with a lavatory pan separated from the living area and the cell windows had not been covered with metal shutters. The certificate did not describe the state of the cells during the period of the applicant's detention from 21 February 2000 to 23 May 2003.

The Government submitted that the applicant had been allowed one-hour daily walks in the courtyard.

The applicant submitted that a lavatory pan had not been separated from the living area and offered no privacy; it had been located within 0.5 or 1 metre from the dining table. The cell windows were covered with metal shutters and let no air through. There was no ventilation in the cells.

The applicant pointed out that the sanitary conditions in cell no. 128 had been satisfactory.

From 17 to 23 March 2000 the applicant was held in solitary cell no. 3 on suspicion of having the HIV virus. The applicant submitted that the cell had been a punishment cell, located in the basement with no access to daylight or fresh air. He also submitted that he had not been given food for the first three days of his stay in that cell because he had not been provided with any cutlery or tableware by the detention centre administration. According to the certificate of 18 November 2005 issued by the detention centre governor and submitted by the Government, cell no. 3 was a solitary confinement cell rather than a punishment cell. The Government also submitted documents showing that the cell had a window and that the applicant had been provided in good time with cutlery, tableware and other necessary items.

The applicant submitted that during the period of his detention his spine had hurt but he had been refused medical assistance. The Government provided the Court with the applicant's medical file, according to which the applicant had received treatment for spinal osteochondrosis at the detention centre's medical unit.

The applicant was transported from the pre-trial detention centre to the courthouse on 145 occasions, the last time on 15 May 2003. He offered the following description of the days of transport.

On the days of the hearings he had been woken up at 5 a.m. At about 6 a.m. he had been taken from his cell to the so-called “assembly” cell, together with other detainees who had a hearing on that day.

The applicant had not normally arrived back at the prison until 7.30 p.m. and had been held in the “assembly” cell until 10 or 11 p.m. During the day he had received no food or outdoor exercise and had often missed the weekly shower.

The Government submitted that on the days of transport the applicant had been woken at 6 a.m. and taken to the court in the prison van. He would normally come back to the prison no later than 8 p.m. According to the certificate of 18 November 2005 issued by the detention centre governor, on the days of transport the applicant had been fed in the morning and had been given a packed meal in accordance with the order of the Ministry of Justice of 4 February 2004.

The applicant pointed out that the detention centre administration had started to give packed meals to detainees after 4 February 2004 when the respective order was adopted by the Ministry of Justice, whereas he had been released on 23 May 2003.

Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government. Section 23 provides that detainees should be held in conditions which meet sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware, cutlery and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.

Annex 3 to the Order of the Ministry of Justice of 4 May 2001 no. 136 (as amended on 4 February 2004) set detailed daily standards for free food, including packed meals, which were given to detainees at the material time.


No violation of Art. 11;No violation of Art. 14+11

The applicants are Swedish citizens. Mr. Folke Schmidt is a professor of law at the University of Stockholm and Mr. Hans Dahlström is an officer in the Swedish Army.

The applicants are members of trade unions affiliated to two of the main federations representing Swedish State employees, namely the Swedish Confederation of Professional Associations (Sveriges Akademikers Centralorganisation, abbreviated to SACO) in the case of Mr. Schmidt and the National Federation of State Employees (Statstjänstemännens Riksförbund, abbreviated to SR) in the case of Mr. Dahlström.

In 1971, after expiry of one collective agreement and during negotiations for a new agreement, the applicants’ unions called selective strikes not affecting the sectors in which worked the applicants, who thus did not come out on strike. Mr. Schmidt and Mr. Dahlström complain that on conclusion of the new agreement, they, as members of the "belligerent" unions, were denied certain retroactive benefits paid to members of other trade unions and to non-union employees who had not participated in the strikes.

General background

For more than a hundred years, workers and employers in the private sector in Sweden have traditionally enjoyed the right to form and join trade unions and associations and to take action in defence of their occupational interests without interference by the State.

Certain principles of labour law which had evolved in practice were codified in 1928 and 1936 by the following legislation:

(i) the 1928 Collective Agreements Act (lag om kollektivavtal);

(ii) the 1928 Labour Court Act (lag om arbetsdomstol); and

(iii) the 1936 Act on the Right to Organise and Negotiate (lag om förenings-och förhandlingsrätt).

The 1928 Collective Agreement Act deals with collective labour agreements between employers or employers’ associations and trade unions. It specifies in particular the legal effects of such agreements. For example, the parties may not take strike or lock-out action in regard to an issue regulated by a collective agreement in force between them.

The 1928 Labour Court Act contained rules governing the composition, jurisdiction and procedure of the Labour Court. The Labour Court was competent to hear cases of alleged violation of the 1936 Act on the Right to Organise and Negotiate. It also had jurisdiction in disputes relating to the interpretation or application of collective agreements, but proceedings could only be brought by a party to the agreement in issue. Unions or non-union employees to whom such an agreement had been made applicable (paragraph 17 below) were obliged to bring their disputes before the ordinary courts or administrative courts, as the case might be.

The above-mentioned Act of 1936 guarantees two distinct rights to the parties on the labour market, namely the right to organise and the right to negotiate.

The right to organise is defined in Section 3 of the Act as being the right of employers and employees to belong to an employers’ organisation or a trade union, to exercise their rights as members of that organisation or union, and to work for an organisation or a union or for the formation of an organisation or a union, without interference or pressure by the other party. The Act specifies that the right to organise shall be considered as being violated "if measures are taken either by employers or by employees to constrain any employee or employer, as the case may be, to refrain from becoming a member of, or to resign from, an association, to refrain from exercising his rights as a member of an association, or to refrain from working for an association or for the formation of an association, and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer, as the case may be, on the ground that such employee or employer is a member of an association, exercises his rights as a member of an association or works for an association or for the formation of an association".

The only way in which such associations enjoy the protection of the Act is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as intervention in the affairs of the association.

The right to negotiate is defined in Section 4 of the 1936 Act as being "the right to institute negotiations regarding conditions of employment or relations between employers and employees in general". It imposes on the other party an obligation to enter into negotiations, to attend meetings for negotiations and, where necessary, to make proposals for the settlement of the issues involved. This provision is applicable to all trade unions.

Prior to 1966, the State determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the State and the employees.

As from 1 January 1966, the 1965 State Officials Act (statstjänstemannalag) has virtually assimilated State employees to employees in the private sector as regards trade union rights, strikes, lock-outs, etc. The Act made the 1928 Collective Agreement Act, the 1928 Labour Court Act and the 1936 Act on the Right to Organise and Negotiate applicable in the public sector. Furthermore, the Act provided for collective agreements to be concluded, subject to certain exceptions, between the National Collective Bargaining Office (Statens Avtalsverk, hereinafter referred to as "the Office"), representing the State as employer, and the organisations of State employees. The Ministry of Finance has a nominee on the governing board of the Office.

The 1965 legislative reform was facilitated by the centralised structure of the Swedish trade union movement; one factor which greatly contributed to its adoption was the conclusion in December 1965 of a Basic Agreement on Negotiations’ Procedure (slottsbacksavtalet) between the Office and the four main trade union organisations of State employees, namely:

(i) the State Employees’ Union (Statsanställdas Förbund, abbreviated to SF and known prior to 1 July 1970 as Statstjänarkartellen),

(ii) the National Federation of State Employees (SR),

(iii) the Swedish Confederation of Professional Associations (SACO),

(iv) the Civil Servants Section of the Central Organisation of Salaried Employees (Tjänstemännens Centralorganisations Statstjänstemannasektion, abbreviated to TCO-S).

According to the information at the disposal of the Court, these federations represent the large majority of Swedish State employees: more than 450,000 out of the 500,000 whose terms of employment are negotiated by the Office. About forty trade unions are affiliated to these organisations. The few independent trade unions represent only about 2,000 State employees in all.

Insofar as they are union members at all, university teachers and army officers generally belong to SACO and SR respectively. These two organisations, which are respectively open to staff possessing a university degree or the school leaving certificate (the equivalent of the baccalauréat), recently merged after the case had been brought before the Commission.

According to the trade unions’ own published figures, the number of SACO members in respect of whom the Office conducts collective negotiations was about 48,800 in 1971 and 1972; it rose to 51,800 in 1973 and was between 53,600 and 53,700 at the end of 1974. The university teachers’ union affiliated to SACO had between 1,800 and 1,900 members in 1971, between 1,900 and 2,000 in 1972, between 2,100 and 2,200 in 1973 and between 2,300 and 2,400 at the end of 1974. SR had 19,200 members in 1971, 19,800 in 1972 and about 20,000 at the end of 1973. The army officers’ union affiliated to SR had between 6,900 and 7,000 members in 1971, 7,300 in 1972 and between 7,400 and 7,500 at the end of 1973; it would appear that in August 1975 its membership had fallen to about 7,100 or 7,200.

Clause 4 of the above-mentioned Basic Agreement provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees’ behalf by the "main organisation" concerned, unless the Office and the "main organisation" agree otherwise.

The Royal Order of 30 June 1965 relating to Certain Public Collective Agreements (KK om vissa statliga kollektivavtal m.m.) includes the following provisions:

"Collective agreements as to such conditions of employment or service as are determined by the King-in-Council or by Parliament shall be concluded conditionally on the agreement being sanctioned by the King-in-Council."

"An Authority which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers, notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement."

Collective agreements in Sweden are normally concluded for a period of two or three years. For various reasons, however, the new collective agreement is often concluded some time after the previous agreement has expired. In such cases, the new agreement has often specifically provided that its terms shall apply retroactively as from the date of expiry of the previous agreement. In the case of a strike during the bargaining period, on the other hand, employers - both in the public and private sector - have customarily refused to grant retroactive benefits in order to deter unions from taking industrial action in the future (application of the principle that "a strike destroys retroactivity").

Negotiations in the public sector of the labour market are centralised in that they are conducted by the federations on behalf of their member unions. Moreover, strikes and other collective action may not be taken by the different trade unions independently but rather on the basis of a decision by, or after receiving the approval of, the federation concerned, which chooses and designates in accordance with its pre-arranged policy or tactics those of its members who are to take part in the action. According to the present practice, the negotiations between the Office and the federations result in one single agreement which regulates the increase in salaries, the grading of different categories of employees, working hours, various salary allowances, etc., and which applies, as a result of Article 4 of the Order referred to above (paragraph 17), to all categories of State employees, including those who are not represented by the federations. The agreement is normally signed by all the federations.

The question whether an individual employee has any means of challenging his union’s decision to go on strike is a matter exclusively governed by the internal rules of the union concerned. These may provide for a right to ask for a secret ballot or for other rights to object to the union’s decisions to take industrial action.

The law described above at paragraphs 10 to 17 has in recent years undergone various changes which, being subsequent to the facts at issue, are not relevant for the present case.

Facts of the particular case

In 1969 a global agreement for the years 1969 and 1970 was concluded by the Office and the four federations. When this period expired on 31 December 1970, the parties were still engaged in negotiations regarding the new global agreement. No agreement was reached and a Commission of Conciliation was appointed, but negotiations before it broke down as well. Consequently, SACO and SR proclaimed selective strikes which became effective on 5 February 1971 and involved about 4,000 members. This resort to strike action, which was quite lawful (see paragraphs 11 and 14 above), did not apply to university teachers or the Army so that neither Mr. Schmidt nor Mr. Dahlström took any part in the strikes.

The Office retaliated and, on 19 February 1971, about 30,000 members of SACO and SR were locked out. This affected all university teachers belonging to SACO, including Mr. Schmidt, and some officers belonging to SR, but not Mr. Dahlström. New strikes and lock-outs were proclaimed, but did not become effective. On 12 March 1971, an Act was promulgated which gave the King-in-Council power to order the prolongation of certain collective agreements for a period of six weeks, but not extending beyond 25 April 1971, provided that collective industrial action threatened vital public interests. By virtue of this Act the previous collective agreement was reinstated on 13 March 1971 for a period of six weeks and all strikes and lock-outs terminated forthwith.

Subsequent negotiations before the Commission of Conciliation resulted in June 1971 in a new global agreement for the years 1971 to 1973. According to this agreement, certain posts were upgraded and the salary scales were generally increased retroactively as from 1 January 1971. Clause 18, however, provided for an exception in this respect:

"Officials who were members between 1 January and 12 March 1971 (or any part of this period) of organisations that organised industrial action for any part of this period, shall not be entitled from 1 January to 12 March 1971 to the increased wage benefits applicable under the agreement, unless the Collective Bargaining Office decides otherwise. This declaration also concerns other officials if they took part in any such industrial action."

The agreement was only signed by TCO-S and SF. SACO and SR refused since they considered the terms unacceptable. The agreement, and in particular clause 18, was nevertheless applied to their members by virtue of Article 4 of the above-mentioned Royal Order (paragraph 17).

According to the applicants, during the negotiations SF and TCO-S had urged that the non-retroactivity clause should not be included in the agreement and expressed the opinion that it properly belonged to an agreement between the State and the two organisations concerned, SACO and SR. SF and TCO-S declared this expressly and inserted a reservation in the record before putting their signatures to the agreement. TCO-S had, however, attempted to entice to itself some members of SACO, which was in its opinion a purposeless organisation, and had in fact written to the applicant Schmidt in this vein.

As a result of the agreement, members of SACO and SR, insofar as they were upgraded, did not receive the higher salary for the period from 1 January 1971 to 12 March 1971, nor did they benefit from the general increase in the salary scales during the same period, regardless of whether or not they had been on strike. State employees who were not members of SACO or SR but who had all the same participated in the strike, were also refused the benefit of retroactivity.

The exception clause applied to both applicants as members of SACO and SR, even though they themselves had not gone on strike at all. Mr. Schmidt was affected for the period from 1 January to 19 February 1971, being the date when he was locked out and thus deprived of his salary. Mr. Dahlström, who was upgraded under the new agreement, was affected for the whole period up to 12 March 1971. During these periods the applicants performed work for a lower salary than that paid to other employees who were in the same salary brackets but not members of SACO or SR. Their financial losses amounted to Kr. 300 and Kr. 1,000 respectively.

Mr. Schmidt, following the conclusion of the collective agreement, gave notice to the Office that, through his special treatment in regard to wages, his right to organise had been violated. When the Office nevertheless refused him the benefit of retroactivity, SACO and SR brought an action against the State before the Labour Court under the 1936 Act on the Right to Organise and Negotiate, seeking on behalf of the applicants (and a third person who was also a member of SR), inter alia:

(i) a declaration that the measures taken by the Office constituted a violation of the applicants’ right to organise and that this involved an interference with the affairs of SACO and SR;

(ii) a declaration that clause 18 of the agreement of June 1971 was of no effect in regard to the applicants;

(iii) an order that the State pay compensation to the applicants for financial loss and infringement of their right to organise.

SACO and SR asserted that the State had infringed their members’ right to organise as guaranteed in Section 3 of the 1936 Act since, with regard to retroactive wage benefits, they were subjected to special treatment in comparison with members of TCO-S and SF and non-union officials. The Office denied any such infringement since members of SACO and SR had been refused the benefit of retroactivity only for the reason that the State wanted to maintain the principle that "a strike destroys retroactivity". A comparison between SACO and SR members, on the one side, and members of TCO-S and SF and non-union officials, on the other, did not provide any basis for the conclusion that the State acted on such a basis or with such a purpose as was envisaged by Section 3 of the 1936 Act.

In its judgment of 22 December 1971, the Labour Court unanimously rejected the claim of the applicants’ unions. The Court first confirmed the parties’ common view that the right to organise did not exclude the possibility for the State to enforce the principle that a strike destroys retroactivity. The adoption of such a position, and its enforcement after a conflict, were not to be regarded in themselves as an attack on the right to organise. Furthermore, the employer’s duty to respect this right did not include any obligation in principle to pay equal wages to union and non-union employees or to members of different organisations. The mere fact that different wages were accorded to different groups of employees did not by itself lead to the conclusion that a measure violating Section 3 had been employed. However, any favouring either of members of the organisation which reached agreement or of non-union employees, with the aim of exercising against the members of the other organisation the type of pressure envisaged in Section 3, would constitute a violation of that provision.

The Court then found that no such purpose on the part of the State could be established. In particular, no support had appeared for the idea that the State intended to induce members of SACO and SR to switch over to TCO-S and SF. In this context, the Court assumed that the latter organisations would also have been refused retroactivity if they had organised industrial action during the process of negotiations.

With respect to non-union employees the Court found that the reason why they were granted a special benefit had nothing to do with their position as being non-union. Any procedure designed to refuse the benefit of retroactivity generally to non-union employees in sectors where SACO and SR were dominant or representative obviously could have become very complicated and time-consuming. Moreover, no recognised norms existed for determining such sectors, and the concept of representation was ambiguous and disputed. The Court then referred to the State’s failure to negotiate an agreement which would exclude retroactivity to all non-union employees within the sectors in which SACO and SR were representative. In this respect the Court considered that the facts of the case did not support the conclusion that this failure showed any intention on the part of the State to violate the right to organise. Otherwise, the State would, as soon as one federation organised industrial action, be barred from upholding the principle that a strike destroys retroactivity in any other way than by refusing retroactive validity for agreements concluded with respect to all employee organisations. Such a general limitation of the State’s possibilities of upholding the principle could not be based on Section 3 of the 1936 Act.

In the case before it, the Court did not consider the granting of retroactive benefits to non-union employees who had not been on strike as proof of any purpose to violate the right to organise. In the Court’s opinion, the parties had not been able to present anything more than quite uncertain information on the total number of non-union officials or on their field of employment. The Court indicated that the plaintiffs’ view concerning the State’s purpose in its treatment of non-union officials might have appeared more reasonable if it had been possible to show that the large majority of non-union officials were active within the main field of activity of SACO and SR. Conversely, it would be less reasonable to take notice of the treatment of the group of non-union officials if these could primarily be classified within the field of recruitment of SF and TCO-S. The uncertainty in regard to these circumstances argued, in the Court’s conclusion, in favour of the States declaration that its purpose did not extend beyond upholding the principle that a strike destroys retroactivity.

In their application, lodged with the Commission on 9 June 1972, the applicants complained that in the particular circumstances the implementation of the Government’s policy regarding payment of retroactive benefits had amounted to preferential treatment, in particular in comparison with non-union employees, and had consequently violated Article 11 (art. 11) of the Convention.

The Commission declared the application admissible by a decision of 18 October 1972.

During the examination of the merits, the applicants relied on Article 11 (art. 11) and also Article 14, read in conjunction with Article 11 (art. 14+11).

In its report of 17 July 1974, the Commission:

(i) confirmed its opinion, previously expressed in the report in the Swedish Engine Drivers’ Union case, that Article 11 para. 1 (art. 11-1) may legitimately extend to cover State responsibility in the field of labour-management relations and thus to provide some protection for unions against interference by employers;

(ii) expressed the opinion:

- by nine votes to one with one abstention, that the Government’s policy of denying retroactive benefits to non-striking members of belligerent unions did not in the circumstances infringe the applicants’ right, under Article 11 para. 1 (art. 11-1), to form and join the trade unions;

- that in view of the preceding finding, the Commission was not called upon to examine whether the action complained of was justified under Article 11 para. 2 (art. 11-2);

- by eight votes to one with two abstentions, that the differential treatment complained of was in the circumstances justified as an industrial relations policy and that there had been no violation of Article 14 read in conjunction with Article 11 para. 1 (art. 14+11-1).

The report contains a separate concurring opinion.


Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque

The applicant, Mr Mehmet Lütfi Koçak, is a Turkish national who was born in 1982 and lives in Mersin. He was represented before the Court by Mr A. Erkol, a lawyer practising in Mersin.

On 27 September 2002 the applicant was operated on in Adana Numune Hospital. In the consultation and examination form it was noted that the applicant was complaining of weakness in the right leg as well as occasional urinary incontinence and that he had tethered cord syndrome, a disorder of the spinal column.

On 30 September 2002 his catheter was removed. However, as he was not able to pass urine it was reinserted.

He was discharged from the hospital on 7 October 2002.

He was admitted to the hospital once again on 12 November 2002 for inability to pass urine. He was discharged on 21 November 2002. In the discharge summary form it was noted that the applicant had a permanent catheter. He was diagnosed with neurogenic bladder and prescribed with the use of a catheter six times a day.

On 22 June 2004 the applicant obtained a medical report from the health board of the Hospital of the Mersin University School of Medicine. It reads as follows:

“The applicant who came to our hospital on 17 June 2004...was examined, treated and given recommendations at the Urology Department.

For your information.

Admission-Discharge Dates: 17/6/2004

Diagnosis: Neurogenic bladder (“urinary dysfunction”)

Other issues: The catheterisation of the patient with...type of catheter six times a day for a period of one year is convenient.”

On 13 September 2004 he applied to the Ministry of Health seeking compensation and lodged a criminal complaint against the doctor concerned for breach of duty.

On the basis of a medical expert opinion given by two spinal surgeons on 7 October 2004, the Ministry of Health rejected the applicant’s request on 19 October 2004.

On 1 November 2004 he initiated compensation proceedings against the administration.

On 6 January 2005 the Governorship of Adana did not grant the permission sought for the prosecution of the doctor concerned, basing its decision on a preliminary investigation report. It was observed that the patient’s symptoms had existed prior to the surgery and that they consisted of the development of his progressive neurological disease, namely tethered cord spinal syndrome. On 7 April 2005 the public prosecutor terminated the investigation for this reason.

Before the Adana Administrative Court the administration claimed that the civil action was time-barred; that in any case the applicant’s complaints had pre-dated the impugned operation; that the applicant had been operated on 27 September 2002 for tethered spinal cord syndrome, and that the medical expert evidence had confirmed that the doctor concerned had not been negligent.

The Adana Administrative Court noted that on 25 September 2002 the applicant had been diagnosed with tethered spinal cord syndrome, the symptoms of which included loss of bladder control. Having observed that the applicant had been hospitalised for urinary incontinence on 12 November 2002, it stated:

“...even assuming that at the time of the diagnosis he had not been suffering from this symptom, since he was admitted to the Urology Department on 12 November 2002 for inability to pass urine without the use of a catheter it should be held that he should have been aware of his condition by that date at the latest.”

The first-instance court concluded that for the purposes of section 13 of the Administrative Procedure Act the one-year time-limit had started running on 12 November 2002 and that the case lodged on 1 November 2004 was therefore time-barred. It declared the case inadmissible on 22 June 2006.

The applicant appealed against the decision.

The public prosecutor at the Supreme Administrative Court pointed out that the time should be calculated from the date on which the person concerned had become aware of the damage. He referred to paragraph 1 of section 13 of the Administrative Procedure Act, which stipulates that individuals whose rights have been violated by an administrative action should apply to the administration concerned for redress within one year of the date on which they were notified or otherwise became aware of the administrative action, and in any case within five years of the date of the action. He proposed that the judgment of the first-instance court should be quashed, holding that the applicant had become aware on 22 June 2004 that his neurogenic bladder might have been connected to the surgical operation.

The Supreme Administrative Court upheld the decision of the firstinstance court on 27 October 2008. The final decision was served on the applicant on 5 January 2009.


CASE OF TUDOR-AUTO S.R.L. AND TRIPLU-TUDOR S.R.L. v. MOLDOVA

Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicants, Triplu-Tudor S.R.L. and Tudor-Auto S.R.L., are two companies incorporated under Moldovan law.

On 18 November 1993 the State Service for the Supervision of Insurance by the Ministry of Finance of the Republic of Moldova (“the Service”) (Serviciul de Stat pentru supravegherea asigurărilor pe lângă Ministerul Finanţelor al Republicii Moldova) registered the insurance company Tudor and Co. S.R.L., founded by three private parties T.N., V.N. and L.R. (“the founders”). On an unspecified date the founders lodged with the Service a request to register two other insurance companies, which on 3 November 1995 were registered as Triplu-Tudor S.R.L. and TripluTudorAuto S.R.L. They also sought the registration of changes in the companies’ founders, namely the replacement of T.N. and V.N. with other founders, and in one of the company’s names from Triplu-Tudor-Auto S.R.L. into Tudor-Auto S.R.L. On 25 and 27 December 1995 and on 11 January 1996 the Service granted their requests.

On 10 June 1997 the Government adopted Decision no. 533 “on certain regulatory measures of insurance activity” (see paragraph 31 below), according to which insurance companies had to fulfil certain formalities and to obtain new registration certificates before 1 August 1997.

On 31 July 1997 Triplu-Tudor S.R.L. and Tudor-Auto S.R.L. submitted to the Service the required documents together with the evidence of increase in their statutory capital up to 300,000 Moldovan lei (MDL), (65,197 euros (EUR) at the time), as provided for by section 1 of decision no. 533, and requested to register the changes in the constitutional documents and to be issued with new registration certificates for insurance activity (“the certificates“). Since the Service refused to comply with their requests, on an unspecified date each of the applicant companies brought actions against the Service, seeking to order it to register the requested changes and to issue new registration certificates.

On 15 January 1998, during the proceedings before the first-instance court, the Service only registered the changes in the companies’ statutory capital.

On 31 March 1998 the Chişinău Economic Court ruled in favour of the applicant companies and ordered the Service to issue them with new registration certificates. On 15 April 1998 the applicant companies were issued with enforcement warrants which stated “for immediate enforcement”. The Service appealed.

On 24 June 1998 the Appellate Chamber of the Chişinău Economic Court rejected the appeals of the Service in both cases. No further appeals were lodged and the judgments became final and enforceable.

The Service took a number of steps designed to either annul the final judgments or to prevent their enforcement. On 21 July 1998 and 1 June 1999 the Service annulled its decisions of 25 and 27 December 1995 and of 11 January 1996.

On 1 December 1998 the Service requested a stay of the enforcement proceedings, which was dismissed by the Chişinău Economic Court on 12 February 1999.

On an unspecified date it asked for a revision of the judgments of 31 March 1998. On 15 July 1999 the Chişinău Economic Court dismissed the request as unfounded.

On 8 February 2000 the Service lodged a new request for a revision of the judgments of 31 March 1998. By a final decision of 6 September 2000 the Supreme Court of Justice dismissed the request.

In a separate set of proceedings, on 28 September 1999 the Rîşcani District Court fined the Director of the Service for failure to comply with the judgments in favour of the applicant companies. Following an appeal lodged by the Director, on 4 July 2000 the Supreme Court of Justice quashed the judgment of 28 September 1999 and discontinued the proceedings against him as statute-barred. Nevertheless, in a separate decision of the same date the Supreme Court of Justice specifically addressed the Ministry of Finance about the need to enforce the final judgments in order to avoid subsequent damage to State interests.

On 24 January 2001 the Service issued each of the applicant companies with certificates, but the Minister of Finance did not sign them so that they had no legal force. In February 2001 the applicant companies requested a bailiff to fully enforce the judgments and to obtain the signature of the Minister of Finance on the certificates.

On 18 May and 4 June 2001 the State Registration Chamber requested the applicant companies to submit certain documents in order to re-register the companies, as provided for by a new law on State registration of enterprises. Since the requests specifically stated that the applicant companies should have submitted the originals of their registration certificates, the latter failed to comply with the requests.

The judgments of 31 March 1998 have not been enforced to date.

On 19 April 2000 T.P. (it appears from the case file that the founder T.N., see paragraph 7 above, had changed his name) lodged a request to join the proceedings which ended with the final judgment of 31 March 1998 as a third party. He claimed that he was the owner of a 50% share in the applicant company and that the changes to the applicant company’s statutory documents, introduced on 11 January 1996, had been adopted without his knowledge.

By a final decision of 20 September 2000 the Appellate Chamber of the Economic Court dismissed T.P.’s request as unsubstantiated.

On 6 October 2003 T.P. lodged with the Economic Court of Appeal a request for a revision of the judgment of 31 March 1998, relying mainly on the same grounds as in his request of 19 April 2000. On 8 December 2004 the Economic Court of Appeal dismissed the request as unsubstantiated and statute-barred, since it had been lodged more than three months after the date on which T.P. had found out about “new relevant circumstances”. T.P. lodged an appeal on points of law.

On 31 March 2005 the Supreme Court of Justice upheld his appeal on points of law and quashed the judgment of 31 March 1998. It ordered a full re-examination of the case. The Supreme Court did not deal with the issue of the three-month time-limit for lodging the revision request.

The outcome of the reopened proceedings is unknown.

The relevant domestic law concerning non-enforcement of a final judgment is set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts).

The relevant domestic law concerning the revision of a final judgment is set out in Popov v. Moldova (no. 2), no. 19960/04, §§ 26-29, 6 December 2005.

The relevant provisions of the Law no. 1508-XII of 15 June 1993 “on insurance”, in force between 15 June 1993 and 21 December 2006, read as follows:

“Section 48. Funds and reserves of the insurer

(1) The guarantee of the financial stability of the insurer consists in disposing of a statutory capital tantamount to the volume of its insurance obligations. The minimum statutory capital of the insurer shall constitute 300,000 lei, in monetary deposits.

Section 49. The guarantee of the insurer’s solvency

(2) The solvability reserve for life and pension insurances shall be composed of the statutory capital, the reserve fund and the long-term premiums’ reserve and shall constitute not less than 8% of the insured amounts.

(3) The solvability reserve for other types of insurance shall be composed of the statutory capital, the reserve fund, the reserve fund for other types of insurance, and shall constitute not less than 1% of the insured amounts (...)”

“Section 54. The scope and the main duties of the State Service for the Supervision of Insurance:

(1) The State Service for the Supervision of Insurance (...) has the duty to supervise insurance activity, to guarantee the protection of rights of the insured and insurers (...)

(2) The main duties of the Service (...) are:

a) to examine the constitutional documents of insurance companies submitted for registration (...);

b) to hold a record of the insurers;

c) to issue licences for insurance activities (...);”

Amendments to Law no. 1508-XII of 15 June 1993 “on insurance” of 25 March 2003, read as follows:

“[Section 48] the text “300,000 lei” is replaced by the text “2 million lei””

The relevant provisions of Law no. 407 of 21 December 2006 “on insurance”, read as follows:

“Section 22. Statutory capital of the insurer (re-insurer)

(1) The minimum statutory capital of the insurer (re-insurer) shall be 15 million lei (...).

(2) At the moment of registration, the statutory capital of the insurer (re-insurer) should be entirely deposited by its founders.

(3) Contributions to the minimum statutory capital shall be entirely deposited in money both at the moment of creation [of the company] as well during increase [of the statutory capital].

(4) The means obtained by the potential shareholders of the insurer (re-insurer) from loans, bank credits, mortgage or other investments, including investments of other participants of the insurance market (...) cannot serve as a source of formation or increase of the insurer’s statutory capital.”

“Section 57.

(1) Insurers, who hold of licences (..) at the moment of entering into force of the present law, are authorised to continue their activity for the next twelve months, during which period they shall comply with the provisions of the present law, except for the cases provided in paragraphs (4)-(7).

(2) Licences for insurance activity which had been issued prior to the entering into force of the present law and which are valid for a period longer than the one provided for in paragraph (1), shall be valid until the expiry of the period for which they had been issued.

(4) Insurers who hold of licences at the moment of entering into force of the present law, shall:

(b) have of a minimum statutory capital in the amount of:

4 million lei – after one year from the moment of entering into force of the present law;

6 million lei – after two years from the moment of entering into force of the present law;

9 million lei – after three years from the moment of entering into force of the present law;

12 million lei – after four years from the moment of entering into force of the present law;

15 million lei – after five years from the moment of entering into force of the present law.”

The relevant provisions of Government Decision no. 533 of 10 June 1997 “on certain regulatory measures of the insurance activity”, in force between 10 June 1997and 8 November 2005, read as follows:

“1. Insurance organisations, (...) shall increase their statutory capital up to 300,000 lei before 1 August 1997.

The Service (...) shall issue new registration certificates to the organisations which comply with the requirements provided for by paragraph 1 of the present Decision.

In order to be issued with new certificates, the insurance organisations shall:

- pay the Service a fee in the amount of one minimum salary (...);

- submit the original of the documents which confirm the address, the existence of the [required] statutory capital, the real value of its actives accumulated from its own resources, the certificate issued by the fiscal authorities concerning payments to the Social Fund and the certificate of State registration of the organisation.

The old-type registration certificates of the insurance organisations shall become void as of 1 August 1997.”


Violation of Art. 6-1+6-3-c;Damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

On 20 September 1972, in the course of an armed robbery in the province of Bergamo, two masked criminals killed one person and seriously injured another; they then fled in a car driven by an accomplice.

Among the suspects, who were swiftly identified, was the applicant.

Mr F.C.B. was arrested in Switzerland on 9 November 1973 and extradited to Italy on 19 February 1974. He was charged with armed robbery, murder and attempted murder, these crimes being aggravated by the fact that he had committed them while wilfully evading arrest under other warrants.

On 10 November 1977 the Bergamo Assize Court found him and his four co-defendants guilty and sentenced him inter alia to twenty-four years’ imprisonment.

The applicant and three others who had been found guilty appealed, and on 26 March 1980 the Brescia Assize Court of Appeal acquitted them for lack of evidence. Mr F.C.B. was released on the following day; in accordance with Article 171 of the Code of Criminal Procedure (see paragraph 25 below), he indicated his address.

The Principal Public Prosecutor and three other parties, including the applicant, appealed on points of law. The prosecution’s notice of appeal was served on Mr F.C.B. personally on 5 April 1980 at the address he had given, which was also that of his mother.

On 13 April 1983 the Court of Cassation dismissed the applicant’s appeal, allowed the prosecution’s appeal, and remitted the case to the Milan Assize Court of Appeal.

Mr F.C.B. had in the meantime entered the Federal Republic of Germany on 24 April 1980. He settled at Constance and was granted a residence permit there on 29 September 1980. He claims that he informed the Italian Consulate in Freiburg of his new address, in order for it to be notified to the Italian authorities for "entry in the civil status register". He did not, however, send the authorities an amended version of his declaration of 27 March 1980 (see paragraph 12 above).

The applicant was arrested in Brussels on 19 December 1982 under a warrant issued in the Netherlands in connection with proceedings relating to the abduction of a Netherlands woman.

According to Mr F.C.B., after he had been extradited to the Netherlands the Dutch authorities obtained a copy of his criminal record; furthermore, the judge in charge of the case arranged for his Italian colleagues in Milan and Bergamo to co-operate in investigations in Italy and asked the Milan Chief Public Prosecutor’s Office to have searches of the dwellings of the applicant, his sister and his sister-in-law carried out. The Government did not contest this point, merely stating that they had no detailed information about it.

Mr F.C.B. maintained that he was held in solitary confinement from 19 December 1982 to 19 February 1985, when his conviction by the ‘s-Hertogenbosch Court of Appeal became final, and was thus subject to certain restrictions - which were, however, eventually relaxed - on correspondence, visits and contacts with other detainees.

On 25 November 1983 the President of the Milan Assize Court of Appeal attempted to serve a summons to appear before that court on the applicant at the address given by him on his release, but neither the applicant nor his mother lived there any more.

On 15 December 1983 the summons was delivered to Mr F.C.B.’s mother, whose new address had been found out in the meantime. The applicant’s lawyer had also been informed on 23 October 1983 of the hearing date.

The trial opened on 9 April 1984 in Mr F.C.B.’s absence. His counsel informed the court that, according to close relatives of his client, the latter was in custody in Maastricht; he added, however, that he was unable to produce documentary evidence to this effect. The prosecution submitted that there was no objective evidence to show that Mr F.C.B. was in custody and invited the court to try him in absentia as unlawfully absent (contumace). The court decided to do this, but counsel for one of the co-defendants asked it to verify the information that Mr F.C.B. was unable to attend the trial, as the applicant’s presence could prove to be of importance for his client. That client and another co-defendant confirmed that Mr F.C.B. was in prison in the Netherlands; the one had learnt of it from the newspapers and the other had received a letter from the applicant sent from Maastricht prison.

The prosecution for their part repeated their submissions. After deliberating in private, the Assize Court of Appeal confirmed its declaration that Mr F.C.B. was unlawfully absent, as he had not provided proof that he was unable to attend, despite having been notified in good time of the start of the trial.

On 10 April 1984 the court sentenced him to twenty-four years’ imprisonment and issued a warrant for his arrest.

On 26 April Mr F.C.B.’s Dutch lawyer sent his Italian colleague copies of documents (two summonses to appear before the Netherlands courts) showing that his client was in custody. Translations were given to the court on 26 May.

The applicant’s lawyer appealed on points of law to the Court of Cassation; his grounds of appeal were filed in February 1985. He submitted that the Assize Court of Appeal had been wrong in declaring Mr F.C.B. unlawfully absent and questioned the correctness in law of the judgment. On the first point he argued that the decision itself and the subsequent proceedings were null and void, as it had been impossible for his client to attend the hearing. He said that it was only out of excessive regard for formal propriety that the Assize Court of Appeal had declined to rule that the applicant was unable to appear, notwithstanding several concurring statements testifying to the fact.

The Court of Cassation dismissed the appeal on 13 November 1985.

It found, firstly, that the appeal court had been right to try Mr F.C.B. as unlawfully absent, as there was no proof that he was unable to attend. The documents produced on 26 May 1984 (see paragraph 20 above) had been offered in evidence only after judgment had been given and therefore had no probative value. With greater diligence the defence could have produced them before the hearing. It could be seen from the statement of appeal that the applicant would have had time to do this, as he had been in custody in the Netherlands well before the summons to appear was served. The Court of Cassation held that it was for the Assize Court of Appeal to assess the alleged inability to attend, and that that court had given proper reasons for its decision.

On 5 September 1984 the Italian authorities had requested Mr F.C.B.’s extradition for the purposes of the judicial investigation concerning him. On 17 June 1985, however, the Maastricht Regional Court dismissed the request as inadmissible, on the grounds that the Milan Assize Court of Appeal had already given a judgment on the merits on 10 April 1984 (see paragraph 19 above). The court added that it would consider the matter again in the event of the judicial investigation being reopened as a result of a retrial being ordered by the Court of Cassation or for some other reason.

The Netherlands agreed to extradite Mr F.C.B. to Belgium and he is currently in custody there.

According to the information given to the Court by counsel for the applicant, the applicant will have to return to the Netherlands to serve one year’s imprisonment there, and if the Italian authorities succeed in obtaining his extradition, he will then serve in Italy six years and six months of the prison sentence imposed by the Milan Assize Court of Appeal.

In the Foti and Others judgment of 10 December 1982, the Colozza judgment of 12 February 1985 and the Brozicek judgment of 19 December 1989 (Series A no. 56, p. 12, paras. 33-36; no. 89, p. 11, para. 18, and p. 12, paras. 21-22; no. 167, p. 13, para. 26) the Court gave a brief description of the Italian legislation then in force as regards notifications and trials in absentia (contumacia).

As to notifications to an accused who has been released but in whose case a final judgment has not yet been given, the first and fourth paragraphs of Article 171 of the Code of Criminal Procedure provide as follows (translation from Italian):

"An accused held in custody who has to be released for a reason other than a final acquittal ... must at the time of release declare or elect an address [for service] by lodging a document with the director of the prison. The director shall enter any declaration he has received in the register specified in Article 80 and shall immediately notify it to the judicial authority which ordered the release ... .

Any change relating to the address declared or elected must be communicated by the suspect or accused to the authority in charge of the case, as provided for in the first paragraph. Notifications made to the address previously declared or elected shall be valid until such communication has been received."


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

In July 1972 the applicant was engaged as an official employed under an individual contract (agent contractuel) by the Economic Development Department of the Ministry for Economic Affairs. Under a contract of 29 September 1977 he was sent to Athens to work as a technical adviser.

Following an amendment of 30 August 1984 to the contract of 29 September 1977, he was posted to New York with effect from 25 June 1984 to head an autonomous section of the Economic Development Department. Under the authority of the chief commercial adviser of the New York office, who was himself responsible to the chief commercial adviser at the French embassy in Washington, to whom the agricultural attaché was also answerable, he was placed in charge of the wines, beers and spirits sector, where he had dealings with exporters and importers and, in particular, the SOPEXA company (Société pour l'expansion des ventes des produits alimentaires et agricoles).

In accordance with Decree no. 69-697 of 18 June 1969 on the general terms and conditions of service of persons working overseas for the State under individual contracts, the applicant was employed on a series of thirty-month contracts which were to be automatically renewed unless expressly terminated. The State could terminate any contract on three months' notice for, inter alia, inadequate performance.

In a letter dated 10 December 1985, which was served on the applicant on 27 December 1985, the Minister for Economic Affairs informed the applicant that, owing to his inadequate performance, he did not intend to renew his contract when it expired on 13 April 1986. In a letter dated 9 January 1986, served on the applicant on 21 January 1986, the Minister informed him of his final decision not to renew the contract, on the ground that, among other matters, the applicant had shown a marked lack of initiative towards importers.

By letters of 28 February, 3 March and 13 June 1986, the applicant lodged three applications for judicial review of this decision with the Paris Administrative Court. The first sought to have the Minister's first letter of 10 December 1985, which was in the nature of a preliminary to a final decision, set aside. The second was aimed at having the final decision to dismiss the applicant, contained in the letter of 9 January 1986, quashed. The third challenged the lawfulness of the appointment of the applicant's replacement.

In a judgment of 6 January 1989 the Paris Administrative Court, having joined all three applications, dismissed them.

On 24 October 1989 the applicant gave notice of an appeal to the Conseil d'Etat on points of law. He lodged a statement of the grounds of appeal on 23 February 1990. In a judgment of 10 May 1995, which was served on the applicant on 26 October 1995, the Conseil d'Etat dismissed the appeal, holding, inter alia, that it had been lawful for the Minister to dismiss the applicant on the ground of inadequate performance.

According to Article 1 of Decree no. 50-446 of 19 April 1950 laying down regulations governing the terms and conditions of service specific to economic development personnel, “the civil servants of the economic development offices overseas constitute a body of staff responsible to the Minister for Economic Affairs. In the performance of their duties they shall be attached to either a diplomatic delegation or a consulate ...”

Article 3 of the decree provides that they are to act as delegates of the Minister for Economic Affairs in respect of all matters relating to France's foreign trade. In particular, they are responsible for studying all problems having a bearing on the French economy, supplying information to the various French administrative authorities and assisting with the preparation, negotiation and execution of commercial treaties and agreements. They must also participate in various surveys or special projects and in all economic events organised or run by the various ministries or official groups, defend the country's general economic interests and on that account provide direct assistance, in overseas markets, to French businessmen, industrialists and agricultural producers.

The Overseas Economic Development Department has an establishment of 128 staff. Commercial attachés second class are recruited from among graduates of the National College of Administration (ENA); commercial advisers of the various classes may in addition be recruited from the State civil service. All commercial advisers and attachés are posted abroad by order of the Minister for Economic Affairs, made after the agreement of the Minister for Foreign Affairs has been obtained.

In addition, by Law no. 50-340 of 27 March 1950, five posts of agricultural attaché have been created. Agricultural attachés are responsible to the head of the relevant economic development office. Their duties are described in Article 3 of Decree no. 56-1242 of 3 December 1956: they study, from the technical point of view, problems affecting French agricultural development, particularly by seeking outlets in the local market for imports of French agricultural produce, and act as advisers during the preparation of negotiations on international commercial agreements and their application, assisting the head of office in his relations with the public administrative authorities dealing with foreign trade matters.

The general terms and conditions of service of persons of French nationality working overseas for the State or State public administrative bodies under individual contracts are laid down by Decree no. 69-697 of 18 June 1969. The provisions of the decree are not applicable to technical assistance or cooperation staff placed at the disposal of foreign States. The different types of post are defined in orders made by the ministries concerned. They may be filled either by non-established employees or by established civil servants.

The relevant provisions of the decree are worded as follows:

“Persons to whom Article 1 applies shall sign a contract of service. The contract, which must refer to the provisions of this decree, shall specify its duration, the date on which it is to take effect, the staff member's category, grade and duties, the appropriate residence allowance group, the country of the posting and, where applicable, the family allowance group.”

“Where the staff member was recruited in the country of the posting, the contract must be for a period of at least three years. Where the staff member was recruited in France or in a foreign country other than the country of the posting, the contract must be for at least thirty months plus the length of his or her official home leave entitlement.

A contract does not become final until expiration of the period of probation or training which the staff member may be required to complete immediately after signature of the contract in the country of recruitment. The contract may be terminated by either party without restriction or notice at any time during this traineeship period or on its expiry.”

“The contract shall be terminated: 1. when it expires, save that it will be deemed to have been tacitly renewed for a period equivalent to its original length unless terminated either by the State or by the member of staff at least three months before the date on which it is due to expire. Refusal to renew the contract or to sign a new contract shall be deemed a resignation. Such a refusal on the part of the State shall be deemed a dismissal, save where a new contract is signed within six months of the expiry of the previous one; 2. at any time if terminated by the State on three months' prior notice where the grounds for the termination are redundancy or inadequate performance; [or] in the case of dismissal on disciplinary grounds.”

Article 48(4) of the Treaty of 25 March 1957 instituting the European Economic Community (“the EEC Treaty”) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “employment in the public service”. The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In its judgment of 17 December 1980 in the case of Commission v. Belgium (C-149/79, ECR 3881) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and a reciprocity of rights and duties which formed the foundation of the bond of nationality.

The European Commission, to which the EEC Treaty assigned responsibility for ensuring the correct application of Community rules, noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State.

In a communication of 18 March 1988 it set itself the task of listing separately those activities which were covered by the derogation and those which were not. It thus established two distinct categories of activities according to whether or not they involved “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”.

These categories were defined as follows:

“Exclusion of specific activities in the national public service [from freedom of movement for workers]

On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies ...

Activities concerned by action in the public service sector

The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by the Court of Justice that they would only in very rare cases be covered by the exception in Article 48(4) of the Treaty.

The Commission proposes therefore to implement its action in the following areas by order of priority:

– bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and telecommunications, radio and television companies),

– public health care services,

– teaching in State educational establishments,

– research for non-military purposes in public establishments.

Each of these activities also exists in the private sector, to which Article 48(4) does not apply, or may be exercised in the public sector without the imposition of nationality requirements ...”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in 1959 and lives in Baku.

The applicant was an activist of the National Front, an organisation which played one of the key roles in the country's struggle for independence from the Soviet Union. In 1992, when the National Front came into power in the country, he was appointed to a number of high military posts and in 1993 he became the Commander of the Special Police Force.

After the National Front lost political power in 1993, on 24 May 1994 the applicant was arrested and detained on remand. Upon arrest, allegedly, he was not informed of the charges against him and was refused access to a lawyer. On 7 August 1995 the Military Chamber of the Supreme Court, acting as a court of first instance, convicted the applicant for attempted murder (ten years' imprisonment), abuse of authority at wartime (eight years), intentional abuse of authority (four years), misuse of weapons (two years), negligent approach to military service (two years) and humiliation of a subordinate person (one year and six months), and sentenced him to a total of ten years' imprisonment by merging the sentences.

On 26 June 1996 the same court, again sitting in first instance, convicted the applicant for “failure to use authority to resist the Armenian occupation of the town of Khojaly and prevent the subsequent mass killing of the civilians fleeing the town”. The court sentenced the applicant to fifteen years' imprisonment, merging his previous ten-year sentence into this new sentence. The imprisonment period was to be calculated from the first day of the applicant's arrest on 24 May 1994. Pursuant to the old criminal procedure law applicable at that time, both Supreme Court judgments were final and not subject to appeal.

At the time of Azerbaijan's admission to the Council of Europe, the applicant's name appeared in the lists of “alleged political prisoners” in Azerbaijan submitted to the experts of the Secretary General. Azerbaijan had made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts. However, ultimately, the applicant was not regarded as a political prisoner by the experts of the Secretary General (see Cases of alleged political prisoners in Armenia and Azerbaijan, SG/Inf (2001) 34, Addendum I, 24 October 2001, Chapter 2 (III), Case No. 10 (the applicant's name is transliterated as “Fahmin Hadjiyev” in this document)).

In 2000 a new Code of Criminal Procedure (hereinafter “CCrP”) was adopted. Before its entry into force on 1 September 2000, on 14 July 2000 Parliament passed the Law On the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (hereinafter the “Transitional Law”), which allowed lodging an appeal under the new CCrP against final judgments delivered in accordance with the old criminal procedure.

On 29 January 2002 the applicant lodged an appeal with the Court of Appeal against the Supreme Court's judgments of 7 August 1995 and 26 June 1996. By a letter of 13 February 2002, the Court of Appeal informed the applicant that, in addition to the appellate complaint, he also had to file a petition in order to restore the appeal period.

According to the applicant, he filed such a petition on 7 March 2002. Having not received an answer, he appealed again on 7 June 2002 and yet again on 7 October 2002. In reply to these applications, in its identical letters of 24 October 2002 and 27 November 2002 signed by a court clerk (the Head of the Correspondence Department of the Court of Appeal), the Court of Appeal informed the applicant that his case would be examined shortly by the Court of Appeal's Chamber on Military Courts' Cases and that he would be informed of any further developments in due course.

However, during the following period of over a year, despite the applicant's continuous inquiries, no examination of the case took place and no information in this regard was given to the applicant.

Finally, more than two years after lodging his appeal, by a letter of 31 March 2004 signed by the same court clerk, the applicant was informed that:

“... in accordance with Article 72.2 of the Code of Criminal Procedure currently in force, the Court of Appeal may only examine criminal cases ... based on appeals or protests against first-instance courts' judgments and other decisions which have not entered into force [i.e. have not become final]... For re-consideration of the firstinstance judgments of the Supreme Court's Military Chamber of 7 August 1995 and 26 June 1996 you are advised to apply to the Supreme Court.”

Although, during the same period, the applicant was actively engaged in correspondence with the Supreme Court with regard to unrelated proceedings concerning the reduction of his sentence, the applicant did not file a formal appeal with the Supreme Court concerning the present case.

On 10 May 2004 the applicant was pardoned and released from prison pursuant to a presidential pardon decree.

Law of 14 July 2000 on the adoption and entry into force of the Code of Criminal Procedure of the Republic of Azerbaijan (the “Transitional Law”)

Article 7: “Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.”

Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000

Article 72.1 provides that the Court of Appeal of the Republic of Azerbaijan is a court of appellate instance concerning criminal cases and other matters related to criminal prosecution.

Article 72.2 provides that the Court of Appeal of the Republic of Azerbaijan has a competence to examine criminal cases and other matters related to criminal prosecution based on appellate complaints or protests against judgments and other decisions of first-instance courts that have not entered into legal force.

Article 73.1 provides that the Supreme Court of the Republic of Azerbaijan is a court of cassation instance concerning criminal cases and other matters related to criminal prosecution.

Article 73.2 provides that the relevant chambers of the Supreme Court of the Republic of Azerbaijan have a competence to examine criminal cases and other matters related to criminal prosecution based on cassation complaints or protests against judgments and other decisions of the appellate courts or jury courts.

Article 391.1 provides that the appellate court must hold a preliminary hearing of the case within 15 days after the receipt of an appellate complaint. The parties to the case and the state prosecutor have a right to attend this hearing. These persons must be informed in advance of the time and place of the hearing.

Article 391.2 provides that, during the initial hearing, the appellate court must determine, inter alia, whether it has competence to examine the appellate complaint and whether the appellate complaint was submitted in accordance with the relevant procedural requirements.

Article 391.3 provides that, upon the initial hearing, the appellate court may decide, inter alia, to leave the appellate complaint without examination, to forward the appellate complaint to a court having appropriate competence, to reinstate or refuse to reinstate the expired period for filing the appellate complaint, to appoint a judicial hearing for examination of the merits of the appellate complaint, or to refuse to admit the appellate complaint for examination.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Luis López Guerra;Nona Tsotsoria

The applicant, Mr Agris Buks, is a Latvian national, who was born in 1967 and lives in Vārve Parish, Latvia.

The Latvian Government (“the Government”) was represented by their Agent, Mrs I. Reine.

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

In 2000 the applicant was diagnosed with diabetes, type II. From February 2001 the applicant needed to receive regular injections of insulin.

On 31 October 2001 he was arrested on suspicion of involvement in the organising of human trafficking. On the same day he was admitted to Rīga Hospital No 1. Two days later the applicant was transferred to the hospital wing of Rīga Central Prison, where he remained until 20 December 2001 when he was transferred to the medical unit of Matīsa Prison.

On 4 September 2002 the lower court found the applicant guilty, sentenced him to three years’ imprisonment and ordered the confiscation of his property. The appellate court on 26 November 2002 took the applicant’s poor health into consideration as well as the fact that the applicant could not be provided with proper medical treatment in prison. As a result the court reduced his sentence by one year.

In March 2003 the applicant was transferred to Jelgava Prison, from which he was released on 31 October 2003 after having served his sentence.

According to the applicant, on his admission to the medical unit of Matīsa Prison he was informed that owing to insufficient funds the prison was not in a position to provide him with insulin, and that he had to rely on his relatives to obtain it for him.

From 13 to 28 March 2002 the applicant was held in a disciplinary cell in Matīsa Prison for having committed a disciplinary offence. According to the applicant’s submission, he had had to inject himself with insulin there despite conditions being insanitary.

Meanwhile, from 29 May to 19 June 2002 and from 19 August to 9 September 2002 the applicant was held in the Kuldīga Police Department short-term detention unit in order to ensure his attendance at the court hearing in Kuldīga. According to the applicant, the conditions there amounted to torture in that he had been denied a consultation with a doctor and food was provided only once per day.

At the applicant’s request the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) assessed the adequacy of the medical care received by the applicant in Matīsa Prison in 2002 and 2003.

In its report of 10 May 2002 the MADEKKI found no infringement of the applicant’s right to medical treatment over the period from October 2001 to May 2002. In the course of preparing the report a representative of the MADEKKI met with the applicant, who did not raise any complaints regarding the quality of medical care he had received. The inspectorate observed that, before the arrest, the applicant’s doctor had repeatedly recommended that he visit an endocrinologist but the applicant had not done so, blaming his busy schedule. The inspectorate concluded that the applicant had been injecting insulin himself following the doctor’s recommendations, and monitoring his sugar levels with the use of a glucometer. The applicant’s overall state of health was considered to be stable.

In several letters dated 26 February, 1 July and 17 September 2003 the Prisons Administration dismissed the complaints which the applicant had brought regarding the medical care he had received and the fact that he had not been provided with insulin in Matīsa Prison. The Prisons Administration noted, in particular, that under the State medical system the applicant’s relatives were allowed to obtain insulin and syringes free of charge on his behalf.

On 10 and 13 October 2003 the applicant addressed a similar complaint to the MADEKKI and the Office of the Prosecutor. The applicant also drew the MADEKKI’s attention to the poor conditions in the Kuldīga Police Department.

On 24 November 2003 the MADEKKI drew up a second report concerning the medical care the applicant had received in Matīsa Prison. It observed that his entire stay in Matīsa Prison had been spent in the medical unit, where he had been regularly examined by doctors. It noted that the applicant’s sugar level was 14-18 mmol/l and he had been injecting himself with insulin and testing his sugar levels.

With regard to the supply of insulin to the applicant, the MADEKKI concluded that during his stay in Matīsa Prison the administration had failed to furnish him with insulin; that the laboratory testing of his sugar levels had not been carried out regularly, and that he had not had a consultation with an endocrinologist.

With regard to the complaint of a lack of medical care in Kuldīga Police Department unit from 29 May to 19 June 2002 and from 19 August to 9 September 2002, the MADEKKI noted that the medical unit of Matīsa Prison had informed the Kuldīga Police Department that the applicant was permitted to use insulin, certain medications and a glucometer. The MADEKKI observed that the applicant had not raised any health-related complaints while in the Kuldīga short-term detention unit, where he had been provided with the standard diet for detainees.

The Office of the Prosecutor in its letter of 4 November 2003 reminded the applicant that according to his agreement with the medical unit of Matīsa Prison, from 20 December 2001 to 5 March 2003 he had agreed to supply the insulin himself. In the same letter the Office of the Prosecutor stated that on 16 October 2002 the Prisons Administration had purchased insulin especially for the applicant which he had used until his transfer to Jelgava Prison on 5 March 2003. The applicant did not complain in this respect to a higher prosecutor.

The applicant’s medical file, as summarised by the MADEKKI’s reports mentioned above, show that he was diagnosed with diabetes type II in February 2000. From February 2001 he was recommended insulin treatment because his sugar levels occasionally reached 16-17 mmol/l. Every two months, on average, the applicant’s doctor would issue repeat prescriptions for about twenty doses of insulin (Monotard). In response to the applicant’s complaints that his sugar levels occasionally reached 18 mmol/l the doctor had recommended, on at least two occasions, that the applicant attend self-care and awareness clinics for diabetic patients. The report reveals that the applicant had not done so.

From 2 November to 20 December 2001 the applicant received medical treatment in the prison hospital where he was seen by various specialists. The sugar level in his blood and urine was monitored twice a week on average. By 28 November 2001, according to prison hospital records, the applicant’s health had improved; he declined to increase his dose of insulin and agreed on a particular course of treatment with the doctor at the prison hospital.

On 10 and 15 January 2002, the applicant underwent medical examinations and was then admitted to the prison hospital on 19 January 2002, where he remained until 24 January 2002, because he was suffering from hyperglycaemia.

On the applicant’s discharge from the hospital in November 2001 and again in January 2002 it was recommended that he have his blood and urine sugar levels monitored and be given a tailored diet and medication, including insulin. In the medical unit of Matīsa Prison he was prescribed insulin and two kinds of medication as recommended.

On 21 February 2002 the applicant’s health was assessed by a medical consultative commission at Matīsa Prison, which prescribed a particular treatment including an injection of insulin twice per day. The follow-up of the treatment was carried out on average once a week until June 2002. After he had been transferred to the disciplinary cell he was authorised to use two other kinds of medication brought from home.

On 19 and 24 July and 1 and 5 August the applicant’s sugar levels had increased so he was repeatedly admitted to the prison hospital in the period from 8 August to 15 August 2002, when he was discharged from the hospital at his own request.

The applicant was visited by a doctor before and after his transfer to the Kuldīga Police Department on 27 May, 20 June, 15 August and 11 September 2002. He had not raised any complaints and his health was considered to be satisfactory.

According to a medical report from Ventspils hospital, the applicant’s former doctor gave the applicant’s wife prescriptions for insulin and the other medicine, at her request, on separate occasions in December 2001, February and April 2002.

At the Government Agent’s request on 9 July 2009 the Prisons Administration explained that under the State – financed health programme, as in force at the material time, all diabetic patients in Latvia received insulin and syringes free of charge, while detention facilities were obliged to purchase insulin for detainees suffering from diabetes from their budgets. Owing to insufficient funds available for medication, the administration of the prison authorised diabetic detainees to receive insulin from outside the prison. Usually family members received prescriptions for insulin from the detainee’s former doctor and brought the insulin to the detainee in prison.

In response to the Government Agent’s questions, the Health Inspectorate (Veselības Inspekcija) explained that the minimum healthcare requirements of diabetic patients comprised the regular administering of medication, monitoring of sugar levels and treatment for hypoglycaemia. Blood tests should be carried out as required. There was no vital need for an endocrinologist if the sugar levels were satisfactory.

The Inspectorate also noted that it was of crucial importance that diabetic patients had an understanding of their illness. Since there was no special “diabetic diet”, by monitoring the sugar levels of the patient the amount of insulin was to be adjusted according to the quantity of food taken.

Regulations no. 358 of the Cabinet of Ministers of 19 October 1999 concern the provision of medical assistance to convicted and detained persons in their place of custody (see Leitendorfs v. Latvia (dec.), no. 35161/03, § 27, 3 July 2012).


EMIN AND OTHERS v. CYPRUS AND OTHER APPLICATIONS

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants state that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia.

The facts of the cases may be summarised as follows. They are relatives of Turkish-Cypriot men who went missing in either December 1963 or April-May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted (see Annex for further details).

These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations.

The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons(“CMP”) in 20069. Further details are set out in the Annex.

In three cases, the applicants wrote to the Cypriot authorities requesting information about any investigation into the disappearance of their relative and/or the discovery of the remains: in Akay and Others, no. 32744/08, by letter dated 6 May 2009 to the Minister of the Interior, in Gürtekin and Others, no. 3706/09, by letter dated 14 November 2008 to the Minister of the Interior and in Arkut and Others, no. 25180/09, by letters dated 22 February 2009, to the Attorney-General and to the Minister of the Interior. No reply or information was received, save for an e-mail from the Attorney-General’s office dated 18 March 2009 in the Arkut case, stating that all necessary action would be taken.

In this case, the claimants challenged the decision in 1997 to remove their relative, a Greek-Cypriot combatant last seen in July 1974, from the list of missing persons after examination of the list by the Attorney-General of the Republic of Cyprus; his file was communicated to the TurkishCypriot side instead on the basis that he had died of wounds during the fighting and not to the Committee of Missing Persons. In a decision dated 16 October 2003, the Supreme Court in its appellate jurisdiction rejected the case on the basis that the case did not concern an administrative decision but was an act of government outside the court’s jurisdiction. Matters relating to missing persons were part of the Cyprus problem and fell within the power of the political authority.

In these cases lodged in 2006, the relatives of five Turkish Cypriot men who went missing on 14 August 1974 after they had been taken from their homes by armed Greek Cypriots, lodged applications under Article 146 of the Constitution, claiming that the Republic of Cyprus had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons. In their response, the Republic of Cyprus stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between the United Nations, the Turkish-Cypriot side and themselves that exhumations would be conducted by a common programme of the Committee of Missing Persons. They also pointed out that exhumations had begun in 2004 and the programme indicated the likelihood of the exhumation of the graves in the relevant area would commence in August 2008. They disputed that the matter fell within the jurisdiction of the courts but fell rather under the supervision of the United Nations and the authority and initiative of the President of the Republic.

In its decision dated 29 May 2008, the Supreme Court in its appellate capacity held that the fate of missing persons fell under the authority of the President of the Republic as it had an international aspect; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of the Supreme Court.