The applicant, Michael Reid, is a United Kingdom national, born in 1969 and living in Romford, Essex. He is represented before the Court by Mr S. Marine, a lawyer practising in London.

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

In his statement of 16 February 1988, taken by the police, R. had stated that a gold chain had been stolen from him by a person who he knew as Michael Reid. He described Michael Reid as “about 5’ 10’’ he has got a flat top afro hair and is slim”.

On 17 February 1988, the applicant was arrested and charged with robbing R. of his gold chain. In an interview with the police the same day, he had admitted that he had been at the premises known as “Bee-Jays” when the incident occurred on 7 February 1988. He alleged that another man called “Blue” had taken the chain and that he had talked to R., saying that he would try to get it back for him.

On 18 February 1988, the applicant was remanded in custody.

On 29 March 1988, the committal proceedings took place before the Ilford Magistrates Court. The charges were read and explained to the applicant, who was represented. R. gave evidence and described the person who robbed him as being black, pretty tall and having a flat-top hair cut. He however stated that, “At the time I didn’t know the person who robbed me; I’d never seen him before at that time.” Questions were put to R. in cross-examination by the applicant’s counsel. The applicant was asked whether he wished to say anything in answer to the charge, to which he made no reply. The applicant was also given an opportunity to give evidence and to call witnesses. He did not do so. The applicant was committed for trial and detained on remand by order of the magistrates.

On 4 July 1988 at the trial at Snaresbrook Crown Court, prosecuting counsel from the Crown Prosecution Service (“CPS”) offered no evidence in support of the prosecution. According to the statement of claim issued by the applicant in later civil proceedings, prosecuting counsel informed the court that he had only just received the papers and that there were problems with them, referring to the identification of the applicant. After a short adjournment he asked for time to take a further statement from the victim R. He then returned to the court and offered no evidence against the applicant. The applicant was released from custody.

On 6 June 1994, the applicant issued proceedings against the CPS claiming damages for negligence. He alleged that the prosecution had failed to take reasonable care in assessing whether there was, at the committal proceedings on 29 March 1988, sufficient evidence against the applicant.

On 3 January 1995 the CPS issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action.

On 9 June 1995 a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action, following the Court of Appeal`s case-law to the effect that there was no general duty of care owed by the Crown Prosecution Service in relation to its prosecutions (Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, see below in Relevant Domestic Law and Practice). The judge was of the opinion that the applicant`s case involved "a point of law of general importance" and issued a certificate, pursuant to Section 12(3)(b) of the Administration of Justice Act 1969 entitling the applicant to "leapfrog", i.e. to petition the House of Lords directly.

On 24 July 1995 the applicant petitioned the House of Lords for leave to appeal. Leave to appeal was refused on 30 November 1996.

In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation.

Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing that:

– damage to the claimant was foreseeable;

– the claimant was in an appropriate relationship of proximity to the defendant; and

– it is fair, just and reasonable to impose liability on the defendant.

These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).

If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.

In the case of Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, the Court of Appeal decided that no duty of care in negligence was owed by the Crown Prosecution Service (“CPS”) to defendants in fulfilling its statutory duty in prosecuting crime.

The case concerned two plaintiffs, who had been arrested, charged and arrested in custody for serious offences and after periods of 22 and 85 days respectively the CPS had discontinued the proceedings against them. They had instituted proceedings against the CPS claiming inter alia that the CPS had been negligent in failing to act with reasonable diligence in concluding that they were either innocent/or the prosecution bound to fail. The claims were struck out by the judge on the basis that they disclosed no reasonable cause of action. Their appeals to the Court of Appeal were dismissed. In the leading judgment, Lord Justice Steyn referred to the three criteria laid down in Caparo (cited above) and had regard to the considerations as to whether the CPS should be treated differently in tort from private citizens and corporations. He noted that the CPS was a public law enforcement agency acting for the public as a whole and that, having regard to the torts of malicious prosecution and misfeasance in public office, a citizen aggrieved by a prosecutor’s decision had potentially extensive private law remedies for a deliberate abuse of power.

“That brings me to the policy factors which, in my view, argue against the recognition of a duty of care by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors of their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system. …

Recognising that individualised justice to private individuals or trading companies who are aggrieved by careless decisions of CPS lawyers militates in favour of the recognition of a duty of care, I concluded that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of the law, I would reject it in regard to the CPS as impractical and unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. Subject to one qualification, my conclusion that there is no duty of care owed by the CPS to those it prosecutes is intended to be of general application. The qualification is that there may be cases of which Welsh v. the Chief Constable for the Merseyside Police [1993] 1 All E.R. 692 was an example, where the CPS assumes by conduct a responsibility to a particular defendant… And it is trite law that such an assumption of responsibility may generate legal duties. …”

At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.

In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.

The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.

The CPS is a statutory public law enforcement agency set up by the Prosecution of Offences Act 1985 to prosecute criminal offences. It is an autonomous and independent body which reviews police decisions to prosecute and conducts prosecutions on behalf of the Crown. The CPS is headed by the Director of Public Prosecutions (“the DPP”) and is answerable to Parliament through the Attorney General.

The conduct of Crown Prosecutors is regulated by the Code for Crown Prosecutors, issued under section 10 of the 1985 Act. Paragraph 10 provides that review of the police decision to prosecute is a continuing process, so that Crown prosecutors are required to take into account any change in circumstances.

Before bringing a prosecution, a Crown prosecutor had, at the relevant time, to be satisfied that it fulfilled two sets of criteria set out in the code, firstly concerning evidential sufficiency and, secondly, concerning the public interest. The first required that that a Crown Prosecutor be satisfied that there was enough evidence to provide a “realistic prospect of conviction”. This involved an assessment whether a jury or bench of magistrates, properly directed in accordance with law, would be more likely than not to convict the defendant of the charge alleged. The Crown Prosecutor was required to draw on his experience of how the evidence was likely to “stand up” (paragraph 6). Under the public interest criteria, the Crown Prosecutor had, inter alia, to consider the very serious harm the stigma of a conviction could cause very young adults and take into account any change in the complainant/victim’s attitude, e.g. the expression of a wish, after the initial complaint, that no action should be taken (paragraphs 8(iii), 8(vii) and 20ff).


The applicant, John Colin Campbell Jordan, is a United Kingdom national, who was born in 1923 and lives in Harrogate. The respondent Government are represented by Mr John Grainger of the Foreign and Commenwealth Office, London.

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

On 27 July 1998, a search warrant was issued against the applicant under Section 24(1) of the Public Order Act 1986 in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material. A large number of items of property, including papers, were seized in the course of a search at the applicant's home on 4 August 1998.

An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation. A renewed application was dismissed by the High Court on 1 November 1999.

On 19 April 2000 the applicant was charged with offences under the Public Order Act 1986, and on 2 November 2000 he was committed to stand trial. The applicant was charged together with another man, H.

The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial. The stay was granted by the Crown Court on 23 November 2001. After hearing the prosecution, the applicant and the medical evidence, the judge stated:

“... It is obvious that Mr Jordan is not fit to conduct his own defence as is his right .. And, indeed, it may well be the case that he is not fit to be tried even if counsel were able to represent him. I must say that, having seen Mr Jordan in court and having heard Mr Jordan, he is able to put his case forcibly and eloquently, although that may be on the medical evidence before me only over very short periods of time. I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay. I intend to apply to this indictment a conditional stay. The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [counsel] on behalf of the Crown and Mr Jordan and it is right to say Mr Jordan does not agree with them, but they are the conditions which I impose. Firstly, that the stay will continue to apply providing that, one, the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried; and, secondly, providing that the defendant does not engage in any activity, either political, social or personal, which demonstrates to the satisfaction of a court that he is in fact able to stand his trial, irrespective of his medical condition.”

The formal order incorporating that ruling reads as follows:

“The indictment be conditionally stayed against John Colin Campbell Jordan and the stay will continue to apply:

Providing the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried.

Providing the defendant does not engage in any activities either political, social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition.”

On 23 November 2001, after the ruling on a stay of the proceedings, the Crown Court discussed the question of materials which were still retained. The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co-defendant, but that the applicant had stated that he wanted all of the material or none of it. The applicant did not accept the prosecution's claim, and maintained that “special procedure material” should never have been seized under the warrant. At the end of the discussions, the judge stated that all the seized material which was not of assistance to the co-defendant or the prosecution in the case against the co-defendant would be returned to the applicant.

The applicant tried to challenge, by an application for judicial review, both (i) the conditions of the stay and (ii) the fact that his property had not been returned. Mr Justice Munby refused leave on 6 February 2002, and in so doing made the following comments:

“1. Despite what is said by the LCD [the Lord Chancellor's Department] and the CPS [the Crown Prosecution Service] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity.

But (i) most of this application for [judicial review] is plainly barred by [the Supreme Court Act] 1981 Section 29 (3) and I can see no even arguable basis for saying that Section 29 (3) is not Convention compatible and (ii) that part which is not so barred is plainly without merit – the application in relation to the property is, at least in the first instance, a matter for the Crown Court, not the Administrative Court.”

A renewed application was refused on 26 February 2002.

On 18 April 2002, the applicant applied to the Leeds Crown Court for return of “special procedure material”. He states that he has had no reply. He further wrote to the North Yorkshire police and the Crown Prosecution Service on 26 July 2002, asking for return of 790 items of “special procedure material” to be sent to his home in Harrogate “with a complete list of all items”. He was informed that the return of property would be considered at the end of the trial against the co-defendant. The co-defendant was acquitted on 5 September 2002.

On 24 October 2002, the Crown Prosecution Service informed the applicant that the material seized on 4 August 1998 could be returned to him with the following exceptions:

“(i) The electronic stunning device, which is a prohibited weapon.

(ii) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material. Only a single copy of these documents will be returned. [There follows a list of the nine documents referred to.]

[iii] Material distributed by you to others is no longer your property and will not be returned.”

The letter continued: “The material is being returned to you because [H's] trial has been concluded. It is not accepted that any of the material is special procedure material.”

A similar letter was sent to the applicant by the Head of Legal Services of the North Yorkshire County Council for the Chief Constable of North Yorkshire Police on 24 October, and the applicant was informed that he could collect the items from Tadcaster Police Station from 28 October onwards. The applicant replied on 26 October that “a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items, individually, so that they can be checked off on return.”

The applicant repeated his demands in a letter of 31 October 2002, adding reference to a typewriter which he claimed had been damaged whilst in police custody, and again on 6 and 11 November 2002.

On 7 November 2002, the High Court refused an application made by the applicant in September 2002 for permission to apply for judicial review in respect of materials held. The judge noted “The application covers substantially the same allegation[s] of illegality ... as those made on previous occasions and rejected. Furthermore, the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed”.

On 13 November 2002, the Head of Legal Services of the North Yorkshire County Council wrote to the applicant that the applicant's property (save for the excepted items) would be delivered to his home in Knaresborough, and the majority of items would be listed individually. Certain bulk items would not figure individually. The applicant was informed that it might not be possible to deliver his property to him before he left North Yorkshire for three months, but that it was open to him to collect it from Tadcaster Police Station.

On 16 November the applicant refused to collect the property from any police station, and insisted on its return to Harrogate by the end of November.

The property was not handed over or collected, and on 9 April 2003, the Head of Legal Services wrote to the applicant in the following terms:

“I note, upon a review of my file in this matter, that the question of the return of your property remains outstanding. You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of 24 October 2002, a copy of which I enclose.

I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you. It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in Harrogate but if a trip to your property in Ross-shire is necessary, that could also be arranged.

With that in mind, would you please be so kind as to contact the writer with a suggested time and date, or a number of such options, in order that arrangements can be made with my client for your property to be returned.

It would assist if you would kindly revert to me in the course of the next seven days and with that in mind we enclose a stamped addressed envelope for your early response.”

The applicant replied on 18 April:

“My position remains as expressed during and to the end of that previous contact in the matter. I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then, and I am open now to such return on those terms, nothing other and nothing less than that.

Are you people therefore now to make return in full fulfilment of those terms?

If you are not, then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention.”

On 20 May, after a further exchange of letters, the applicant sent a draft signed Agreement to the Head of Legal Services, in which he demanded return of all items (save those which had been handed over already, the stunning device, and a single copy of each of 11 documents), a list including each individual item, and an acknowledgment of damage to a typewriter. The agreement stated that the applicant was not able to check the property against the list for more than three hours per day, and ended “No deletion or alteration or addition to the Agreement is acceptable to the property owner, the terms here set out being non-negotiable”. In his covering letter, the applicant stated “Unless I receive back, signed and dated by you, the here enclosed Agreement, nothing can be done in the matter apart from, for my part, moving towards legal action for the return of all my long withheld property”. The Head of Legal Services declined to arrange for the Agreement to be signed, but confirmed that there was still no resistance in principle to the return of the applicant's property on the lines already laid out.

Correspondence continued in the same tone, the final exchange running as follows:

The applicant's letter of 1 November 2003 to the Head of Legal Services:

“... the agreement is absolutely essential, now or at any future time, and that I will not accept now or at any time in the future what, in the absence of the agreement, amounts to a dumping disregardful of it. Sign and return the agreement, if you want the return to go ahead, otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons. As I will be returning to Scotland in four weeks time, the signed agreement needs to reach me straight away. Unless you are signing and returning the agreement and arranging the return of property on this basis, there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time-wasting, having given you my final and irrevocable answer.”

The Head of Legal Services, letter to the applicant of 11 November 2003:

“For the avoidance of doubt, my client's position is as follows:

All property, save for that set out at numbered paragraphs (i) to (iii) of my correspondence dated 24 October 2002, to be listed in an inventory.

North Yorkshire Police to return the listed property on a date and time to be agreed.

Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory.”

Section 23 (1) of the Public Order Act 1986 provides:

“A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting with a view to

(a) in the case of written material, its being displayed, published, distributed or included in a programme service, whether by himself or another, or

(b) in the case of a recording, its being distributed, shown, played or included in a programme service, whether by himself or another

is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.”

Section 24 (1) of the Public Order Act 1986 provides:

“If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of Section 23, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.”

Certain categories of material cannot be the subject of an application for a warrant before a magistrate, but must be the subject of an application to a circuit judge. This material is broadly speaking material such as personal records acquired or created in the course of any trade, profession or business. The material is known as “excluded material” and “special procedure material”. Excluded material is material, including journalistic material, held in confidence (Section 11(1) Police and Criminal Evidence Act 1984 “PACE”). Special procedure material includes journalistic material not held in confidence (Section 14 PACE).

Independently of common law powers to seize and retain material falling within the terms of a warrant, a constable who is lawfully on premises may seize material on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it to prevent it being concealed, lost, altered or destroyed (Section 19(3) PACE).

The Notes for Guidance which accompany the PACE Code of Practice relating to search and seizure (“Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises”, applicable to warrants and searches after 9 April 1995) state that “Any person claiming property seized by the police may apply to a magistrates' court under the Police (Property) Act 1897 for its possession, and should, where appropriate, be advised of this procedure”.

Section 29 (3) of the Supreme Court Act 1981 provides that:

“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

Criminal courts have wide common law powers to stay proceedings. A stay typically takes the form of an order that the charge should not be proceeded with. In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a , including the rights of the accused.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Non-pecuniary damage - award

Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1967 and lives in Zagreb.

On 19 October 2000 a Zagreb County Court (Županijski sud u Zagrebu) investigating judge questioned a witness, M.S., about alleged heroin trafficking in Zagreb. M.S. testified, inter alia, that in April 2000 he had transported one kilogram of heroin from B.S. to another person, known to him as “Mario”.

As part of a further police investigation of the organised supply of heroin in Zagreb, on 27 April 2001 the Drug Suppression Unit of the Zagreb Police Department (Policijska uprava Zagrebačka, Sektor kriminalističke policije, Odjel kriminaliteta droga; hereinafter “the police”) questioned a suspect, I.G.H., who stated that he had bought heroin from the applicant. During the questioning he was assisted by lawyer H.B. The questioning of I.G.H. commenced at 11.15 p.m., after a defence lawyer appeared at the police station at 11.10 p.m., and ended on 28 April 2001 at 1 a.m.

On 31 May 2001 the police questioned another suspect, V.Š., who stated that he was a heroin addict and that he had bought heroin from the applicant. During the questioning he was assisted by lawyer N.D. His questioning commenced at 4.26 p.m., after a defence lawyer appeared at the police station at 3.55 p.m., and finished at 5.43 p.m. on the same day.

On 6 June 2001 the applicant was arrested on suspicion of supplying heroin. The applicant was questioned by the police but chose to remain silent.

The next day the applicant was brought before an investigating judge at the Zagreb County Court. He denied all the charges against him but decided to remain silent and not to give any evidence. The applicant was again questioned by the investigating judge on 11 June 2001, but gave no evidence.

On 11 June 2001 an investigation was opened in respect of the applicant and eight other individuals, including I.G.H. and V.Š., in the Zagreb County Court in connection with a suspicion of conspiracy to supply heroin in Zagreb in the period between 1998 and 2001.

On 17 and 19 June 2001 the investigating judge sought to hear I.G.H., who chose to remain silent and not to give any evidence. When questioned by the investigating judge I.G.H. was not assisted by a lawyer.

On 21 June 2001 the investigation was extended to another defendant, I.S., who also chose to remain silent but denied all the charges against him.

On 25 June 2001 the police questioned another suspect, N.S. He stated that he had been a heroin addict for years and that he had been buying heroin from the applicant. During the questioning he was assisted by lawyer Ž.S. His questioning commenced at 5.50 p.m., after a defence lawyer appeared at the police station at 5.30 p.m., and finished at 6.55 p.m. on the same day.

On 16 July 2001 the investigating judge heard evidence from V.Š., who chose to remain silent. During the questioning V.Š. was not assisted by a lawyer, but he stated that his lawyer was I.K.

On 23 July 2001 the investigating judge heard evidence from witness M.S., who retracted his statement of 19 October 2000, stating that it had been given under coercion by the investigating judge and the police. He stated that it was not true that he had transported one kilogram of heroin to “Mario”. He also stated that he did not know the applicant.

On 26 July 2001 the investigating judge questioned the applicant in connection with the allegations made by N.S. The applicant denied the charges and refused to make any further statement.

On 31 July 2001 the investigating judge heard N.S., who complained that he had given his statement to the police under duress and that during his questioning he had been represented by a lawyer who was not of his choosing. Before the investigating judge N.S. was represented by lawyer D.G. On the same day the investigating judge extended the investigation to N.S. and two other individuals.

On 4 December 2001 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant and twelve other defendants in the Zagreb County Court. The applicant was charged with conspiracy to supply heroin in the period between mid-1998 and June 2001, whereas some of the co-accused were charged with supplying and possession of heroin.

The applicant lodged objections to the indictment on 14 and 21 December 2001, arguing that it had numerous substantive and procedural flaws. He requested, inter alia, that all official notes of the police interviews be excluded from the case file, as well as the record of I.G.H.’s oral statement given to the police. He contended that I.G.H. had been a heroin addict and that he had given his statement while at an advanced stage of withdrawal.

A three-judge panel of the Zagreb County Court dismissed the applicant’s objections against the indictment and remitted the case for trial on 11 April 2002. It excluded the official notes of the police interviews from the case file but not the record of I.G.H’s oral statement.

On 2 May 2002 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against that decision, and on 21 May 2002 the Supreme Court dismissed his appeal as ill-founded.

On 11 July 2002 the president of the trial panel of the Zagreb County Court commissioned a psychiatric report on the applicant’s mental capacity. The psychiatric report was drawn up on 27 July 2002. It confirmed that the applicant had full mental capacity and was intellectually able to participate in the proceedings.

After he had received some further documentation from the defence concerning the applicant’s psychiatric treatment, on 8 November 2002 the president of the trial panel commissioned another psychiatric report. The medical expert reiterated all his previous findings.

At a hearing held on 25 November 2002 the applicant pleaded not guilty.

Further hearings were held on 28 November 2002 and 21 February 2003, at which the trial court heard evidence from six witnesses and an expert witness in toxicology. A police officer, D.Z., gave oral evidence concerning a police trap they had set for one of the accused, D.L., and also concerning his questioning of another accused, Z.E.

On 8 April 2003 the president of the trial panel commissioned a psychiatric report on the mental capacity of N.S. at the time the alleged offence was committed.

At a hearing on 29 May 2003 a psychiatric expert testified that N.S., in the period concerning the charges held against him, had had diminished mental capacity but that he had been able to understand the nature of his acts. In that period he had been addicted and a user of illegal drugs. This meant that he did not have significant withdrawal crises. The parties made no objections to these findings.

At the same hearing the trial panel commissioned a psychiatric report in respect of the other accused, including V.Š. and I.G.H.

On 9 June 2003 the president of the trial panel informed the defence lawyers that he had received information from the Italian authorities that one of the witnesses, D.M., could be heard in Italy since he was serving his prison sentence there. The president of the trial panel asked the defence lawyers to inform him whether they wished to be present during the questioning of that witness in Italy.

On 18 June 2003 the psychiatric expert submitted his report commissioned at the hearing on 29 May 2003. He found that, in the period concerning the charges, V.Š. and I.G.H. had been heroin addicts. Their mental capacity had therefore been diminished but they were able to understand the nature of their acts at the time. In addition, I.G.H. had a personality disorder.

On 23 October 2003 the applicant’s defence lawyer informed the Zagreb County Court that he would not travel to Italy for the questioning of witness D.M. On 25 October 2003 witness D.M. was questioned by an investigating judge in court in Vasto, Italy. He did not provide any evidence concerning the applicant. The record of his statement was forwarded to the Zagreb County Court.

A further hearing was held on 8 March 2004, at which witness M.S. reiterated that he had made his first statement, on 19 October 2000, to the investigating judge under coercion and fear of ill-treatment by the police. He claimed that he had never transported any drugs as he had described in his statement.

At a hearing on 19 April 2004 the psychiatric expert confirmed his findings in respect of V.Š. and I.G.H. The defence lawyers raised objections concerning the methods used and the expert’s findings.

Another hearing was held on 23 March 2005, at which the defence lawyers asked for witness D.M., who had been heard by the Italian authorities, to be heard at the trial. The trial panel dismissed their request, on the grounds that there were significant impediments to securing his presence at the hearing, and that he had already been questioned by the Italian judicial authorities.

At a hearing on 24 March 2005 the applicant, V.Š. and I.G.H. all gave evidence. The applicant again denied all the charges against him and complained that he had been ill-treated by the police.

V.Š. testified that he did not know the other co-accused. As to the statement he had made to the police, he stated:

“I have been a [heroin] addict for years and when I was in the police [station] nobody asked me anything but [a police officer] K.A., whose face I will never forget, drafted a record in another room. I asked for my lawyer, K. but the police told me that K. was a mafia lawyer and that he could not come ... I would like to add that when I was arrested the police told me that they needed me to give a statement. They knew I was soft and that I would sign everything they asked just to get out. That is how I signed this record, which was, as I said, drafted in another room ...

I can answer the questions of the president of the trial panel by saying that I had a number of interviews with [the police officer] K.A. but he told me that this would never become part of a case file and he told me the same thing for this [statement]. However, since [K.A.] did not want to call my lawyer K., he called this other lawyer who never gave me any advice. He just told me that he had signed the record and that I could do whatever I wanted. I have to say that [this lawyer] was a woman. Nothing I said in that statement is true ... except the part in which I said that I was an addict. ... The only true information [in that statement] is my personal details and the fact that I was an addict but [the police officer] already knew that. The part where I said that I was not in withdrawal was absolutely not true ...

I have known K.A. for six years, he has arrested me on a number of occasions and he once lodged a criminal complaint against me. Once he also threatened me that if I did not tell him something, he would lodge a criminal complaint, which he had previously prepared against me, but that never happened. He tolerated my [heroin] addiction but asked me to tell him from whom I was buying drugs, and sometimes would tell him. Sometimes I would tell him the truth but mostly not, I was trying to gain time. ... I trusted [K.A.] when he brought me that record and told me to sign it and that everything would be all right, that I could go. Therefore I signed it.

As to the questions put by [the accused] I can answer that when I was in the police [station] the only thing that was important for me was to get out and to get myself a heroin fix, or methadone, which I was just going to pick up when the police arrested me.”

I.G.H. also testified that he had been ill-treated by police and that his statement was the result of ill-treatment. He stated:

“ ... In [the police station] the ill-treatment started immediately. Two or three police officers, whom I did not know, told me to spread my legs and put my hands behind my back with my head pressed against the wall. Whenever somebody passed by me I was kicked, and when I fell they kicked me on the ground. They were jumping all over me. This lasted for some time and then they started to negotiate, asking me to give a statement. I asked for lawyers J.N. or S.B. but they told me as regards [lawyer J.N.] ‘why do you need that bitch’ and also that [lawyer S.B.] would not come. The ill-treatment ... started again and then [police officers] [K.]A. and [D.]Z. came. They told me that they were good policemen and asked me to give a statement. They also told me that [V.Š.] had already made a statement and that they had two to three other statements and that I should also make a statement, sign it and I could go. Then I signed that statement but I did not see what was in it. I remember that there was some police lawyer who told me ‘you just sign here kid’. The policeman also blackmailed me with an arrest warrant against me which had been issued previously, saying that they would withdraw it if I signed.

... I would like to confront policemen Z. and A. concerning everything I have just said. ...

The policeman also did not provide me with any medical assistance from a doctor and when I asked for heptaton they told me that there was no chance I could get it before I signed.

... I used to buy drugs all over the place, but never from anybody who is present in this courtroom. ...

Nothing [in the statement] is true except my personal details. ...

I know [police officers] Z. and A. ... They did not physically ill-treat me but they were asking me to work for them. It is not true what was written, that I was not in withdrawal. I was, and the policeman waved the heptaton in front of my eyes. They were showing me the drugs. The defence lawyer did not see anything, but he was only there for about ten minutes, he signed [the statement] and left.”

Another hearing was held on 25 March 2005, at which N.S. gave evidence. As to his statement given to the police, he stated:

“ ... [In the police station] I was held for four or five hours. I was asked about Erkapić and [the policeman] told me that if I confirmed what they said they would let me go. So I did that, I signed the record and left. I did it because I was having a severe physical crisis.

... I never asked for the defence lawyer Ž.S. He was just there at one moment and the policeman told me that he was my defence lawyer. I don’t remember but I don’t think I ever signed a power of attorney for him.

The record was written previously, and not while the lawyer was there. In the presence of the lawyer I was just confirming what was written in the record and then I signed it. I signed it without reading it, because I could not wait to get out and take drugs ...

During my police questioning I was never offered medical assistance, although I was in withdrawal.

... the policemen saw that I was in withdrawal ... because I told them so, and I asked for a doctor and heptaton, but they said no.

At the same hearing another co-accused, D.L., testified that while he had been in police custody he had heard police officers beating and interrogating N.S. for three hours.

After the accused had given evidence the applicant’s defence lawyer asked for the records of the oral statements given to the police by V.Š., I.G.H. and N.S. to be excluded from the case file as evidence obtained unlawfully. The defence lawyers of the other co-accused made the same request.

At a hearing on 14 April 2005 the trial court dismissed their requests, on the grounds that the records of the statements given to the police did not reveal any reason to exclude them from the case file.

At the same hearing I.G.H. added that he had been told by policeman K.A. that they wanted to put the applicant in prison for fifteen years or kill him. V.Š. and I.G.H. reiterated that their statements given to the police had been a result of withdrawal symptoms and crisis.

In their closing argument, the applicant’s defence lawyers argued that the only evidence against the applicant was the statements of his co-accused, which had been made to the police under duress and pressure. They asked for the applicant to be acquitted.

On 14 April 2005 the Zagreb County Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment, and imposed a confiscation order on him in the amount of 690,134.4 Croatian kunas (HRK).

The Zagreb County Court based the applicant’s conviction solely on the statements V.Š., I.G.H. and N.S. had made to the police. In addition it considered that witness M.S. had also testified that he had transported one kilogram of heroin to the applicant.

As to the lawfulness and probative value of the records of oral statements given to the police by V.Š., I.G.H. and N.S., that court noted:

“The request to exclude the record of the statement made by the fourth accused, I.G.H., to the police on 27 April 2001, made by the defence lawyer of the fourth accused I.G.H., on the ground that when giving the statement [I.G.H.] had been undergoing withdrawal from heroin, was dismissed. [The record of his statement] does not reveal any suspicion that [I.G.H.] was in withdrawal. Moreover, there was a defence lawyer present during his questioning who did not have any objection as to the manner of the questioning. This record does not reveal any circumstances which could raise the suspicion that the questioning of the fourth accused I.G.H. by the police on 27 April 2001 had been unlawful ...

It was also requested that the records of the statements given to the police by the third accused V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., be excluded from the case file on the ground that these statements were made under duress and that as such they could not be used in the proceedings. The records referred to do not reveal any circumstances which could raise the suspicion that the statements had been made under coercion or pressure. The defence lawyers were present during the questioning and they did not have any objections. ... There is nothing credible to support the suspicion that the records referred to were obtained unlawfully, and therefore the request for their exclusion was dismissed ...

Statements by the third accused, V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., made to the police in the presence of their defence lawyers, are accepted by this court as they are clear, specific and precise. These statements support each other, they have a number of details which could obviously be known only from personal experience (particularly the details of how they contacted the first accused, Mario Erkapić, and how the drugs were distributed and hidden) ... The statements these accused made during the trial, where they tried to show that their previous statements were a result of unlawful treatment by the police (threats, ploys, ill-treatment), are not accepted by this court, as their aim is to avoid criminal responsibility.

Moreover, the records of the police interviews do not contain any element capable of placing their lawfulness in question. This court is not persuaded that various unlawful aspects [of the police questioning] alleged by I.G.H. did not provoke any reaction by the accused, who argued that [any reaction] would have been futile. These allegations were made almost four years after the events concerned had taken place and are therefore not credible and are an obvious fabrication aimed at avoiding criminal responsibility.”

On 3 October 2005 the applicant lodged appeals with the Supreme Court against the first-instance judgment. He argued, inter alia, that his conviction had been based solely on the statements made to police by his co-accused, although that had been evidence obtained unlawfully, as his co-accused had been ill-treated by police during the questioning. Moreover, they had been heroin addicts and at the time of the questioning were going through withdrawal.

He further complained that the first-instance court had failed to hear the defence lawyers who had allegedly been present during the police questioning, and the police officers who had questioned his co-accused. In a situation in which his co-accused had raised the issue of coercion and illtreatment during the police questioning, and in view of the fact that they had incriminated not only themselves but also him, the trial court had been obliged to check their testimony. As to the statement of witnesses M.S., the applicant pointed out that this witness had never said that the person he knew as “Mario” was the applicant.

On 22 February 2006 the Supreme Court dismissed the applicant’s appeal. It upheld the findings of the Zagreb County Court that there was no evidence in the case file to suggest anything unlawful in the records of interviews with the police by the applicant’s co-accused. The Supreme Court pointed out that they had been questioned in the presence of the defence lawyers and that there was nothing to indicate any withdrawal symptoms, coercion or oppression. The Supreme Court also added:

“The psychiatric expert D.M. found that in April 2001 [I.G.H.], as an addict, had a high tolerance of heroin, but [the expert] did not say that he was experiencing a withdrawal crisis, which [the expert] reiterated at the hearing. The defence had no questions ...

There was not a single piece of evidence, including the report drawn up by psychiatric expert D.M., to suggest that [I.G.H.] had been unable to understand the consequence of his actions, and particularly that he was unable to testify before the relevant authorities, regardless of his heroin addiction and diminished mental capacity at the time the offence was committed. Equally, there is not a single piece of evidence that the accused V.Š., and N.S. ..., on account of their heroin addiction, were unable to understand the nature of their actions or to testify before the authorities. ...“

The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the above judgment on 4 April 2006, reiterating his previous arguments.

On 17 September 2008 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicant on 26 September 2008.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows:

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

The relevant part of Section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002 and 49/2002) reads:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a particular action on the part of a state body, a body of local and regional self-government, or a legal person with public authority, affecting his or her rights and obligations, or placing him under suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: “constitutional right”) ...

If another legal remedy exists against the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.

In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law, is allowed, remedies are exhausted only after the decision on these legal remedies has been given.”

The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001) provide:

“... (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are designated by regulation as narcotic drugs shall be punished by imprisonment for one to ten years, or by long-term imprisonment.

(3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or has organised a network to sell drugs, he shall be punished by imprisonment for not less than three years or by long-term imprisonment.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006) are as follows:

“(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).

(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and the international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Act, as well as any other evidence obtained unlawfully. “

“(1) Where this Act provides that the judicial decision cannot be based on certain evidence, the investigating judge shall, at the motion of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation or before he gives consent for the indictment to be preferred without investigation (Article 191 paragraph 2). The decision of the investigating judge is subject to appellate review.

(3) After the investigation and after the consent is given to prefer the indictment without the investigation (Article 191 paragraph 2), the investigating judge shall also proceed according to the provisions of paragraph 1 and 2 of this Article in respect of all information which according to Article 174 paragraph 4 and Article 173 paragraph 3 of this Act is given to the State Attorney or to police officers by citizens or by a suspect who has been interrogated contrary to the provisions of Article 177 paragraph 5 of this Act.”

“ ... (5) In the course of the investigation the police authorities shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. At the request of the suspect the police authorities shall allow him to appoint a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect requested to appoint a lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police administrations by the Croatian Bar Association for the territory of a county ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the time period provided, the police authorities may resume their interview with the suspect ... The State Attorney has the right to be present during the interview. The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings ... “

“(1) If an accused, while being questioned at a trial, contradicts a previous statement he has made, the president of the trial panel shall draw his attention to these contradictory statements and ask him why he is testifying differently. If necessary, his previous statement or part of that statement shall be read out.

(2) If an accused refuses to testify at a hearing or refuses to answer a question, his previous statement or part of that statement shall be read out.”

“The provisions of this chapter concerning the reopening of the criminal proceedings shall also be applicable ..., on the basis of a decision of the European Court for Human Rights which refers to some ground for the reopening of criminal proceedings or for an extraordinary review of the final judgement.”

“A request for the extraordinary review of a final judgment may be lodged [in respect of]:

an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”

The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide:

(2) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final courts’ decision in connection with the final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found.

(3) The request for reopening of the proceedings in connection with the final judgment of the European Court of Human Rights can be lodged within a thirty-day time limit starting from the moment of the finality of the judgment of the European Court of Human Rights.”

(2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [in which the decision was adopted], ..., the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code.

(3) Articles 497-508 of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).”


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

The applicants, (1) Mr Hilmar Kristinn Adolfsson, (2) Mrs Ragnheidur Hauksdóttir and (3) Mr Sveinbjörn Egill Hauksson are Icelandic nationals who were born respectively in 1935, 1948 and 1954. The first and third applicants reside in Reykjavík and the second applicant in Kópavogi, Iceland. They are represented before the Court by Mr Einar Gautur Steingrímsson, a lawyer practising in Reykjavík.

The Icelandic Government were represented by their Acting Agent, Mrs Ragna Árnadóttir, of the Ministry of Justice and Ecclasiastical Affairs.

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

The applicants were the direct heirs of Mrs Margrét þorsteinsdóttir (“M.”), who was born on 29 August 1903 and who died on 22 February 2000.

M. had stated in her will, made in 1971 that all her property was to be divided after her death equally between her brother, X, and a woman named Hulda Sveinbjörnsdóttir (“H.”). It was also stated that if X were to die before M, all her property should pass to H., and if she was no longer alive, to her children and grandchildren. There were no blood ties between M. and H. who had been married to M.’s stepson Y. Both Y. and his father Z. had died before 1971 when M. made her will.

The second and third applicants are the children of H. and the first applicant is the husband of Svava Hauksdóttir another child of H., sister of the second and third applicants, who is now deceased.

In February 1990 a deceased brother of M. left her a considerable inheritance.

M. was hospitalised in September 1991 on account of her mental condition and her inability to take care of herself. She was diagnosed as suffering from Dementia Senilis 290.0.

In the meantime, in February 1993, Mr G.S., Attorney, and Mr G.K. and Mrs K.P. were convicted of embezzlement of M.’s assets during the years 1991-1992.

As from 17 July 1992 M. was, at the request of H., declared incapable of managing her own financial affairs. On 20 July 1992 the District Commissioner of Reykjavík (hereinafter referred to as “the Commissioner”) appointed S.R. as M.’s legal trustee. At that time information about various financial irregularities involving S.R. was on public record, including a number of warrants of execution issued against his company (1985-1987), a petition for bankruptcy and liquidation of the company to cover preferential claims amounting to 25,000,000 Icelandic Crowns (ISK) (1989), a conviction and three months’ conditional prison sentence for embezzlement of employees’ salaries (1990), plus a number of petitions for bankruptcy (1990 and onwards).

In 1997 H. passed away.

On 17 March 1998 the Commissioner requested S.R. to provide yearly reports regarding decisions he had taken on M.’s behalf. Thereafter, in the absence of any such reports, renewed requests were made on 9 June 1998, 3 May 1999 and 2 June 2000.

On 9 October 2002 S.R. was convicted of embezzlement of M.’s assets, in respect of amounts totalling ISK 7,908,943 (approximately 90,000 euros) and was sentenced to 18 months’ imprisonment.

On 1 April 2004 the first applicant’s deceased wife and the second and third applicants instituted civil compensation proceedings against the Commissioner and the State, on the ground that M. had sustained damage as a result of the appointment, as a legal trustee, of a person who had a very dubious past. They claimed that upon M.’s death this claim had passed to them as M.’s heirs.

On 11 January 2005 the Reykjavík District Court found in favour of the respondent and rejected the plaintiffs’ claim, finding no ground for imposing strict liability, nor any basis for finding negligence since the Commissioner had had no reason to believe that S.R. was unfit to be a custodian when he was appointed.

According to the summary of facts contained in the District Court’s judgment, the plaintiffs were granted permission to carry out a private division of M.’s estate on 14 April 2000 and completed their division of the estate in September 2001. In its conclusions, the District Court held inter alia that the estate at the time of M.’s death could not be considered a party to the case, as the division of the estate had been concluded in September 2001.

On 11 April 2005 the Supreme Court upheld the lower court’s judgment, giving the following reasoning:

“The Supreme Court concurs with the District Court that in order for the defendant to be held liable for the losses suffered by the [applicants] and caused by the guardian, it must be demonstrated that this was due to neglect on the part of the defendant’s employees. The circumstances which resulted in the appointment of the guardian are not entirely clear. Nevertheless, it appears to be established that the person who was appointed guardian had taken the initiative in having the testator deprived of her financial competence; it appears that there was reason for doing so, and that the mother of the appellants, Ragnheiður and Sveinbjörn, was consulted on this; she has since died, but at the time she was M.’s sole heir. At the time that the guardian was appointed, the estate of a limited company of which he was in charge was the subject of liquidation proceedings, and sentence had been passed on him in the Hafnafjörður and Garðir Criminal Court for not having transferred money which the company had collected from its employees. On the other hand, there is no evidence to suggest that he was not competent to manage his own financial affairs and in other respects he met, formally, the conditions for being appointed as a guardian according to section 29 of the then applicable Legal Competence Act, No. 68/1984. It has not been established that the District Commissioner should have suspected that he would discharge his duties of financial management badly. With the introduction of the Legal Competence Act, No. 71/1997, great changes were made in the legal provisions and practice regarding reporting by guardians and the supervision of their work. Repeated attempts by the Commissioner’s employees to have the guardian comply with his statutory duties under section 63 (3) of that Act to report, straightaway in the early part of 1998, produced no result. It can be deduced from the ... District Court’s judgment of 14 April 2002 that by that date most of the damage had been done. From the above, it follows that even if the application of the law by the Commissioner’s office should have been more efficient, it has not been established that the Commissioner or his employees violated their official duties and so brought compensatory liability on the defendant. In the light of these considerations, the District Court’s judgment must be upheld.”

Section 27 of the Inheritance Act, No. 8/1962, provides:

“An heir may not dispose of an inheritance which he expects to receive.”

This provision has been understood as placing a prohibition on any type of disposal, whether by assignment, mortgage or other deed, of an inheritance which has not yet devolved on the recipient. It also follows from this provision that an inheritance that has not yet devolved on the recipient cannot be the object of execution measures carried out against the person who expects to receive the inheritance. The rule reflects accepted academic views on the concept of “property” in Icelandic law. One of the foremost conditions for any right to be considered “property” is that it is both unconditional and active so that the owner in question can dispose of it as if it were his property. This provision of the Inheritance Act confirms these views regarding a future inheritance.


Violation of P1-1;No violation of Art. 6;Just satisfaction reserved

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

The applicant was born in 1933 and lives in Warszawa.

The applicant's family owned a plot of land situated in Warsaw. The applicant is the heir of the owners of that property.

By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw.

The applicant's predecessors requested to be granted the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree. On 27 December 1966 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request on the basis that the plot of land had been designated for public use (namely, an agricultural co-operative).

On 27 June 1967 the Warsaw-Mokotów District National Council (Prezydium Dzielnicowej Rady Narodowej) issued a decision granting the right of perpetual use of the plot of land to T. K.

On 23 January 1992 the applicant's predecessor Z.S. lodged an application with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) for annulment of the administrative decision of 27 December 1966. On 10 February 1993 the Minister declared the decision null and void.

On 14 June 2000 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared that the decision of 27 June 1967 had been issued in breach of law. However, the Board refused to declare the decision null and void in view of its irreversible legal consequences – on the basis of the 1967 decision a civil contract had been concluded with the perpetual user of the land who, in 1990, had transferred the rights to the estate to his son.

On 3 March 2003 the Local Government Board of Appeal dismissed the applicant's claim for compensation in respect of the 1967 decision on the grounds that he had not proved “an actual loss” (see domestic law part below).

On 8 April 2003 the applicant lodged a compensation claim with the Warsaw Regional Court.

On 10 November 2004 the Regional Court delivered a judgment and awarded the applicant PLN 604,000. The court found that as a consequence of the unlawful 1967 decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right. The court further considered that the State Treasury had the legal capacity to be sued for damages in this case.

The State Treasury, represented by the Mayor of Warsaw, appealed against the judgment, arguing that the municipality (gmina) should have been sued in this case.

On 14 July 2005 the Warsaw Court of Appeal allowed the appeal and dismissed the applicant's claim. The court, although it observed that the case-law had been divergent on the issue, inclined to the view expressed in a Supreme Court resolution of 16 November 2004, that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date (see domestic law part below).

The applicant lodged a cassation complaint. He submitted that the judgment was in breach of relevant substantive law on account of an erroneous interpretation of the Local Self-Government Act of 10 May 1990. He also invoked Articles 3984 § 1 (3) and 3989 of the Civil Procedure Code arguing that the examination of the cassation complaint was justified because there was a significant legal issue in the case and a need for an authoritative interpretation of provisions which had been interpreted differently in the courts' case-law. The applicant gave examples of divergent case-law of the Supreme Court and Courts of Appeal. He further pointed to the fact that the resolution invoked by the Warsaw Court of Appeal, amending the hitherto prevailing jurisprudence, had been delivered six days after the judgment of the Regional Court.

On 10 January 2006 the Supreme Court refused to entertain the cassation complaint. The decision was taken by a single judge sitting in camera and was not reasoned.

On 7 December 2006 a panel of seven judges of the Supreme Court adopted a resolution in other proceedings in which it concluded that the State Treasury had the legal capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date.

On 5 February 2007 the applicant lodged a complaint with the Supreme Court seeking to have the judgment of the Court of Appeal of 14 July 2005 declared contrary to law (see the domestic law part).

On 15 June 2007 the Supreme Court rejected the complaint. The court concluded that the notion of the judgment “appealed from” within the meaning of Article 4241 § 3 of the Code of Civil Procedure (preventing the examination of the complaint – see the domestic law part) required that a cassation complaint against a judgment had been lodged “effectively”, meaning it had not been rejected. In the court's view a cassation complaint which the Supreme Court had refused to entertain should be understood, for the purpose of this Article, as an “effectively lodged cassation complaint”, as well as a cassation complaint which had been examined on the merits. The Supreme Court in its decision of 10 January 2006 refused to examine the applicant's cassation complaint. The Supreme Court thus concluded that the judgment of the Court of Appeal had been appealed against effectively and the complaint under Article 4241 was not available.

On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions concerning the cassation appeal.

Article 3981 of the Code of Civil Procedure provides that a party may lodge a cassation complaint against a final and valid judgment of a second-instance court. A party must be represented by an advocate or a legal adviser.

The relevant part of Article 3983 reads as follows:

“The cassation complaint may be based on the following grounds:

1) a breach of substantive law caused by its erroneous interpretation or wrongful application;

2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”

Article 3984 specifies the requirements of a cassation complaint. It reads in its relevant part:

“§ 1. A cassation complaint should include:

1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;

2) an indication of the grounds for the cassation complaint;

3) arguments showing that its examination would be justified;

4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”

Article 3989 provides:

The Supreme Court shall entertain the cassation complaint if:

1) there is a significant legal issue in the case,

2) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law,

3) the proceedings are invalid at law,

4) the complaint is manifestly well-founded.

The Supreme Court shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera; the decision shall not require written reasons.

According to Article 39810 a cassation is examined by a panel of three judges and in all other cases the Supreme Court takes decisions sitting in a single judge formation. As a rule, the cassation complaint is examined at a sitting in camera unless there is a significant legal issue in the case and the party lodging a complaint requested a hearing to be held, or the Supreme Court finds it appropriate to hold a hearing (Article 39811).

Pursuant to Article 39815 the Supreme Court, having allowed a cassation complaint, may quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court fails to find non-conformity with the law, it dismisses the cassation complaint (Article 39814).

An amendment of 22 December 2004 to the Code of Civil Procedure, which entered into force on 6 February 2005, introduced a new extraordinary remedy against a final judicial decision – a complaint to declare a final and binding ruling to be contrary to law (skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia).

According to Article 4241, a party to the proceedings may request the Supreme Court to declare a final decision of a second-instance court to be contrary to law, provided that the party has suffered damage as a result of that decision and it has been impossible to have the decision reversed or quashed by way of remedies available to the party.

Pursuant to § 3 of that Article a party cannot lodge a complaint against a second-instance decision which had already been challenged by way of a cassation, or against a decision issued by the Supreme Court.

The new regulations have been challenged before the Constitutional Court. In a judgment of 30 May 2007 (SK 68/06) the Constitutional Court found the new Article 3989 incompatible with the Constitution, but only insofar as it allowed the Supreme Court to refrain from giving reasons for its decisions.

In this respect the Constitutional Court referred, inter alia, to its judgment of 16 January 2006 (SK 30/05), in which it had already examined the possibility of the Supreme Court under the Criminal Procedure Code (Article 535 § 2) to dismiss an “evidently groundless” cassation appeal in a criminal case at a sitting without the participation of the parties and without giving written reasons for the judgment. The court found in this respect that “there is the accumulation at a single trial of three factors excluding the court's obligations as regards the provision of information (i.e. the informational obligation of the court). These are: secrecy of the proceedings; the use of the ambiguous term “evidently groundless” by the legislator; and the absence of an obligation that reasons be provided.”

Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:

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

Article 190 of the Constitution, insofar as relevant, provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court, ... shall be published without delay.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...

A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”

Article 39 of the Constitutional Court Act reads:

“1. The Court shall, at a sitting in camera, discontinue the proceedings:

1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible;

2) in consequence of the withdrawal of the application, question of law or constitutional complaint;

3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal.

If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings.

Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.”

Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which the judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court.

The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw.

Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury.

A very significant reduction in the State Treasury's land resources was brought about by legislative measures aimed at reforming the administrative structure of the State.

The Local Self-Government Act (introductory provisions) of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local self-government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.

Section 36 § 3 (3) of the Act provides:

“The State Treasury takes over:

3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).”

Under Article 7 of the 1945 Decree, former owners had the right to lodge an application for temporary ownership of his plots (własność czasowa). The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use. If he considered that granting temporary ownership to former owners would not be incompatible with public use, a decision could be made in favour of the former owner.

Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste).

The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it.

Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws.

Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part:

“A person who has suffered loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual loss, unless he has been responsible for the circumstances mentioned in this provision.”

An administrative decision in respect of the compensation claim could be appealed against in a civil court.

Section 36 § 3 (3) of the 1990 Act raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform. The problem was subject to divergent judicial interpretation.

On 16 November 2004 a panel of three judges of the Supreme Court adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date.

In its resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following a legal question referred to the Supreme Court by another Court of Appeal having a similar case before it.

The Supreme Court confirmed this stance in several subsequent judgments, delivered in cases similar to the present one (see below).

On 21 March 2001 the Opolskie Governor declared that the decision of 1983 of the Head of municipality D. had been adopted in breach of law. The plaintiff's claim for compensation against the State Treasury (Opolskie Governor) was dismissed by the first- and second-instance courts. In particular, the Court of Appeal, invoking the resolution of the Supreme Court of 16 November 2004 (ref no. Ill CZP 64/04), considered that the State Treasury did not have the legal capacity to be sued in that case since municipality D. had taken over its obligations under Article 36 § 1 of the 1990 Introductory Provisions Act.

The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006.

In 1951 the Presidium of the Warsaw National Council refused to grant the right of perpetual use of land covered by the operation of the 1945 Decree. Subsequently, the State Treasury sold three flats in the building. On 22 September 1994 the Minister of Construction declared that the decision of 1951 had been adopted in breach of law.

The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed his claim in part and awarded compensation from the State Treasury.

On 31 January 2006 the Warsaw Court of Appeal amended the firstinstance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case.

On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006.

In its judgment of 27 November 2002 (no. I CKN 1215/00), the Supreme Court ruled that there was a causal link between an administrative decision, taken under the 1945 Decree, refusing to grant the previous owner of a real property (a land with a building) the right of temporary ownership (perpetual use) of that property and the sale of apartments in the building by the State Treasury.

On 21 March 2003 the Supreme Court adopted a resolution (no. III CZP 6/03) in which it found that financial loss resulting from a decision under the 1945 Decree refusing to grant the right of perpetual use, which had been issued in breach of law, constituted a loss within the meaning of Article 361 § 2 of the Civil Code and an actual damage within the meaning of Article 160 of CAP.


The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır.

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

Until 1994 the applicants lived in Dibek, a village of the district of Lice, in Diyarbakır, where they own property.

In April 1994 security forces forcibly evacuated Dibek and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.

On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and with the military authorities, requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office.

On 20 March 2000 one of the applicants, Hasan Güngörmez, lodged a petition with the Governor’s office in Diyarbakır, requesting to be allocated a house by this office. He received no response to his petition.

On 16 July 2001 Hasan Güngörmez applied to the Lice Magistrates’ Court (sulh hukuk mahkemesi) for an assessment of the damage he had suffered as a result of the burning down of his home and possessions.

On the same day the Lice Magistrates’ Court dismissed the applicant’s request, holding that he would not benefit from this assessment since the alleged incident had occurred a long time ago.

On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and request permission. The applicants’ village, Dibek, was not listed among these villages.

On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties.

On 18 February 2002 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered.

On the same day the applicants lodged a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, requesting that an investigation be initiated against the perpetrators of the destruction of their houses and those who prevented their access to their properties in Dibek. They relied on Articles 369, 515 and 516 of the Criminal Code. They further requested compensation for the pecuniary and non-pecuniary damages they had suffered.

On an unspecified date the Public Prosecutor’s office in Lice issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command. The applicants contend that the decision of non-jurisdiction was not served on them. They further assert that they have not been informed about the outcome of the investigation.

On 4 April 2002 the Ministry of the Interior rejected the applicants’ request, holding that the administration could not be considered to be responsible, as there had not been an operation in or around the village of Dibek in spring 1994 by the security forces. The Ministry further noted that there had been an investigation in the region and that it had not been established that any house had burned down.

In May 2002 the applicants lodged their applications with the European Court of Human Rights alleging violations of Articles 6, 8, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 23 May 2002 the applicants brought an action before the Diyarbakır Administrative Court requesting legal aid in accordance with Article 465 of the Code of Civil Procedure.

On 24 May 2002 the applicants brought a further action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses and their inability to return to their village and to have access to their property.

On 17 June 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one.

On an unspecified date the applicants appealed against the judgment of the Diyarbakır Administrative Court.

On 28 November 2002 the Supreme Administrative Court (Danıştay) dismissed the applicants’ appeal noting that the Code of Administrative Procedure did not provide a right to appeal against an administrative court’s refusal to consider a petition.

On an unspecified date the applicants filed separate cases with the Diyarbakır Administrative Court. The proceedings are still pending before the latter.

Until 1994 the applicants lived in Dolunay, a village of the district of Lice, in Diyarbakır, where they own property.

In April 1994 security forces forcibly evacuated Dolunay and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.

On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and military authorities requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office.

On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and to request permission. The applicants’ village, Dolunay, was not listed among these villages.

On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties.

On 21 December 2001 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered.

On the same day the applicants lodged a petition with the Public Prosecutor’s office in Lice, requesting that an investigation be carried out against the perpetrators of the destruction of their houses and those who prevented them from having access to their properties in Dibek. They invoked Articles 369, 515 and 516 of the Criminal Code.

On an unspecified date the applicants brought an action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses, their inability to return to their village and to have access to their property.

On 19 April 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one.

On an unspecified date one of the applicants, Ağa Şaşmaz lodged a complaint with the Public Prosecutor’s office in Lice against the Kayacık Gendarmes Station Commander, Hüseyin Güven. The applicant alleged that Hüseyin Güven had threatened him concerning his petition with the Ministry of the Interior. He further contended that he had been compelled to sign statements in the Kayacık Gendarmes Station.

On 14 May 2002 the Lice Public Prosecutor issued a decision of non-prosecution concerning the petition of Ağa Şaşmaz, noting that he had not substantiated his allegations.

On 2 August 2002 the Ministry of the Interior rejected the applicants’ request noting that the statutory time limit under Article 13 of the Code of Administrative Procedure had expired.

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages.

On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.

In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.

The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.

A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).