CASE OF ALLAN JACOBSSON v. SWEDEN (No. 1)

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

In 1974 the applicant bought a property of 2,644 m², Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south west of Stockholm. On the property, which lies about 400 metres north west of Rönninge railway station, there is a one-family house in which the applicant lives.

When the applicant bought the property it was covered by a subdivision plan (avstyckningsplan - see paragraph 31 below), adopted in 1938, according to which no building could be constructed on a plot of less than 1,500 m² until sufficient water and sewage facilities had been provided for (a water and sewage system had been built at the end of the 1960’s). The property was also covered by an area plan (områdesplan - see paragraph 26 below), adopted in 1972, which described the property mainly as a public area containing green spaces, streets and car parking, and by a building prohibition pursuant to section 35 of the 1947 Building Act (byggnadslagen, "the 1947 Act" - see paragraph 35 below) issued on 26 August 1974 and lasting until 1 September 1976. The Government also claimed that the regulations for non-planned areas (utomplansbestämmelser) applied but the applicant contested this (see paragraph 33 below).

The first building prohibition under section 35 of the 1947 Act covering the applicant’s property was issued by the County Administrative Board (länsstyrelsen, "the Board") of the Stockholm County on 21 September 1965 and was valid for one year. This prohibition has subsequently been prolonged by the Board for one or two years each time, leaving the property unaffected for only a few brief intermediate periods. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Plan and Building Act 1987 (Plan - och Bygglagen, "the 1987 Act"), the existing system for prohibitions on construction was abolished and replaced by a new one (see paragraphs 44-45 below).

On 1 January 1974 the municipality of Salem was merged with the municipality of Botkyrka, but on 1 January 1983 Salem again became a separate municipality.

On 28 January 1975 the Building Committee (byggnadsnämnden) of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots. In its decision the Committee referred inter alia to the area plan adopted in 1972.

The applicant turned to the Board and requested that the municipality be ordered to adopt a town plan (stadsplan) for the central parts of Rönninge. In an opinion of 31 March 1976 the Board noted that only the Government were competent to make the order requested. It added that, in its opinion, the planning procedure was under way to such an extent that such an order was not necessary.

The applicant also complained to the Parliamentary Ombudsman (justitieombudsmannen, JO) who replied in a letter of 25 February 1976 that he was well aware of the problems which could arise as a result of lengthy building prohibitions. Referring to one of his earlier observations and to the preparatory works of the new building legislation, he concluded that there was no reason to take any other measures as a result of the applicant’s complaint.

On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was supposed to be used for building blocks of flats of more than two storeys.

On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that it was not prepared to grant him an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was not valid. The Board rejected the appeal on 25 April 1980. It interpreted the Building Committee’s decision as a refusal to grant an exemption from the prohibition and stated that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979 and that there were no special reasons to go against the Building Committee’s assessment.

In April 1983 the Building Committee requested the Board to revoke, pursuant to section 168 of the 1947 Act, the right to build according to the subdivision plan of 1938. The Board rejected the request on 23 March 1984, stating inter alia as follows:

"The long duration of the [building] prohibition depends to a large extent on changes in the objectives of the planning procedure as a result inter alia of the changes of municipal organisation which have occurred twice during the time of prohibition .... The Board considers that the prevailing building prohibition gives the municipality sufficient freedom of action for the purpose of the impending town planning. Against the objections from owners of certain properties [among whom the applicant], the Board finds that a revocation [of the subdivision plan] is not justified."

On 6 June 1983 the Board decided to prolong the building prohibition for the area in question. In this decision the Board stated inter alia that the newly created municipality (see paragraph 10 above) should have some time to determine its position in respect of the planning of Rönninge and that an application for a further building prohibition would have to be founded on a time-schedule for the amendments of the plan or on some other proposal for the termination of the prohibition. Challenging, inter alia, the lawfulness of the Board’s decision, the applicant appealed to the Government which, however, rejected the appeal on 15 December 1983.

On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family houses in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect.

On 11 July 1984 the Board decided to issue a further building prohibition for the area in question. In the decision it was noted that the Municipality planned to carry out certain work during 1984 for the purposes of establishing the necessary plans. The applicant appealed to the Government, which rejected the appeal on 8 November 1984, referring to the on-going planning work.

On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant appealed to the Board, arguing inter alia that the building prohibition covering his property had ceased to be effective on 6 June 1984. In a decision of 21 August 1984, the Building Committee conceded that a mistake had been made and quashed its decision of 12 June; however, it took a new decision of similar content since a new building prohibition was valid as from 11 July 1984.

Subsequently the Board decided to quash the Building Committee’s decision of 21 August and to reject the appeal against the decision of 12 June: it referred to the fact that a building prohibition was in force when the Board examined the case. The applicant appealed against the Board’s decision to the Administrative Court of Appeal (kammarrätten) of Stockholm and to the Government. On 24 April 1986 the Government quashed the Board’s decision, holding that the Committee’s opinion was not a binding decision and that, accordingly, it could not as such be subject to an appeal. On 16 March 1987 the Administrative Court of Appeal dismissed the appeal, referring to the Government’s decision. The applicant’s request to the Supreme Court for leave to appeal was rejected on 1 November 1988.

On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family house development. According to the Government, this is the last step of the preparatory work in the making of a town plan. The validity of the subdivision plan (see paragraph 8 above) remained unaffected.

On 10 July 1987 the applicant again filed a request for a preliminary opinion regarding a building permit for his property (cf paragraph 9 above). The Building Committee decided however, pursuant to the rules laid down in the new 1987 Act, to defer its decision on the request for a period of two years (see paragraph 45 below).

Until 1 July 1987 a property owner’s rights to erect buildings on his property were regulated by the Building Act 1947 and the Building Ordinance 1959 (byggnadsstadgan - "the 1959 Ordinance") which was issued by the Government in accordance with powers conferred on them by the 1947 Act.

Section 1 of the 1947 Act provided that constructions on a property required a building permit to the extent laid down by the Government. Section 54 of the 1959 Ordinance specified that a permit was required for all new constructions (see paragraphs 37-39 below) except for the construction of certain buildings for public use, and small additions to existing residences and farms.

Before a building could be erected on a property, section 5 of the 1947 Act called for an examination of whether the property was suitable from a general point of view for this purpose. Such an examination was to be effected by planning procedure, except for non-urban areas where it could be made when an application for a building permit was under consideration.

A master plan (generalplan) was drawn up by the municipality concerned in so far as this was required in order to establish a framework for more detailed plans. Complete master plans were seldom deemed necessary. Instead, municipalities tended to meet their planning needs by using simpler, less detailed plans, usually described as area plans (områdesplan). Such plans were not governed by law.

Town plans (stadsplan) were prepared for those urban areas in which this was deemed necessary (section 24). A town plan was more detailed than a master plan: it indicated the purposes for which the various areas could be utilised - housing, roads, squares, parks, etc. - and it also included specific provisions on their use (section 25).

Building plans (byggnadsplan) were established for areas which had become densely populated without, however, requiring the detailed regulations provided for in a town plan.

After adoption by the Municipal Assembly, town and building plans had to be approved by the County Administrative Board. In the course of this procedure, property owners had a number of opportunities to submit their views.

If a municipality failed to adopt a town or a building plan, the Government could order it to do so within a certain time-limit.

Subdivision plans (avstyckningsplan) were old plans which only set out the borders between land intended for building and land intended for public use. These plans did not regulate the details of building itself.

When the 1947 Act was introduced it was considered inappropriate to abolish existing subdivision plans before they had been replaced by other plans. According to the transitional provisions (section 168 of the 1947 Act and section 83 of the 1959 Ordinance), such plans were to be regarded as building plans in so far as construction was concerned, unless the County Administrative Board decided otherwise.

The 1947 Act also gave the municipalities a power, which was never exercised in the present case, to acquire property required for certain public purposes in accordance with a confirmed master or town plan: for example, areas reserved for public places according to a town plan could be redeemed by the municipality (section 41). The acquisition value was decided by the Real Estate Court (fastighetsdomstolen) and was to be assessed according to the rules laid down in the Expropriation Act 1972 (expropriationslagen - "the 1972 Act").

Regulations for non-planned areas (i.e. areas not covered by a town or a building plan) inter alia prohibited the construction of new buildings on properties which were not found to be suitable in the general interest for this purpose. The Government claimed that these regulations also applied in areas covered by subdivision plans whereas the applicant claimed that such areas were exempted therefrom.

Under section 56 of the 1959 Ordinance, the authorities could not grant permits for new constructions which would result in urban development (tätbebyggelse) within an area not covered by a town plan or a building plan. Areas governed by subdivision plans were exempted from this prohibition, although the Board could order, pursuant to section 168 of the 1947 Act, that they also be covered thereby.

If the question of adopting a town plan had been raised, the Board could, under section 35 of the 1947 Act, also issue a prohibition on all new constructions for the area concerned. Such a prohibition was valid for one year, but could be prolonged by two years at a time. Exemptions therefrom could be granted where the planning procedure would not be obstructed.

According to section 158 of the 1947 Act, provisions on new constructions extended "to such alterations to existing premises as could be classified as new constructions under rules laid down by the Government". Section 75 of the 1959 Ordinance specified:

"The expression ‘new construction’ shall mean:

(a) the erection of entirely new premises;

(b) the horizontal or vertical extension of existing premises;

(c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding;

(d) the complete or partial conversion of premises for a use substantially different from their previous one;

(e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, town plan or building plan or the regulations on building activities in zones situated outside the areas covered by town plans or building plans; and

(f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises.

However, for the purposes of the present section, the expression ‘new construction’ shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time."

Applications for building permits were filed with the local building committee. If an application came under a building prohibitions, it was in practice considered as including also an application for exemption from the prohibition. The applicant could, however, choose to apply for an exemption only, in order to apply for a permit when the question of exemption had been resolved.

The examination of an application for a building permit involved ascertaining that the intended building would not run counter to any confirmed plan, to the regulations for non-planned areas, or to a building prohibition, and that it satisfied technical demands on construction. In the absence of such obstacles, a permit should have been granted.

It was the practice among property owners to request preliminary opinions regarding their possibilities to build. Such opinions were not legally binding.

Decisions by the Building Committee to refuse building permits or exemptions from building prohibitions could be appealed to the Board.

Appeals against the Board’s decisions lay to the Government as regards exemptions from building prohibitions and to the Administrative Court of Appeal as regards building permits. In the latter case a further appeal to the Supreme Administrative Court could be lodged if leave to appeal was granted. If the Board decided both questions, appeals were to be lodged with the Administrative Court of Appeal. If this Court found that the construction did not require any exemption from a building prohibition, it would proceed to examine the permit question. Otherwise, the Court would transfer the case to the Government, together with an opinion on the permit issue.

There were no limits to the number of times a property owner could apply for building permits or exemptions from a building prohibition. The authorities were obliged to examine the matter each time they were seized of such applications.

A decision by the Board to issue a building prohibition or to refuse at first instance an exemption from such a prohibition could be appealed to the Government.

Moreover, questions concerning the approval of town and building plans by the Board could be appealed to the Government. However, the property owners concerned could not formally require the municipality or the Board, respectively, to adopt or approve a plan.

Since 1 July 1987, the 1947 Act has been replaced by the 1987 Plan and Building Act.

The 1987 Act has abolished the possibility to prescribe the kind of building prohibitions which are at issue in the present case, replacing it by a possibility for the Building Committee to defer its decision on an application for a building permit or a preliminary opinion for a maximum period of two years. After the expiry of this period, the permit or a favourable preliminary opinion shall be granted unless they are incompatible with a detailed plan and provided that certain purely technical requirements are met.

Divisions of property into units are made by the Property Formation Agencies (fastighetsbildningsmyndigheterna). New units are to be designed in such a way as to make all properties concerned permanently suitable for their purpose with regard to their location, size and other conditions. Within areas subject to town or subdivision plans, a division must be made in accordance with the plan. If other regulations apply, e.g. a building prohibition, divisions have to comply with these also.

Decisions by the Property Formation Agencies may be appealed to the ordinary courts.

Chapter 2, section 1 of the 1972 Act (see paragraph 32 above) gives the municipalities a right to expropriate for planning purposes. It provides:

"Within a densely developed area an expropriation may only take place if it can reasonably be assumed that the property will, within a foreseeable future, be required for a building or construction activity which is of significant public interest or if it is of importance for the purposes of a planned development or for another similar reason that the municipality takes control of the property".

Expropriations pursuant to this section are subject to the general provisions regarding compensation laid down in Chapter 4 of the 1972 Act.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in 1963 and lives in Skopje, “the former Yugoslav Republic of Macedonia”.

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

On an unspecified date the applicant, represented by a lawyer, filed a compensation claim against another private person (“the debtor”).

On 17 October 1996 the Real Estate Office in Bar (Služba za katastar i imovinsko-pravne poslove Bar) issued a decision to register a mortgage (založno pravo) on the debtor’s flat in favour of the applicant.

On 7 November 1996 the Court of First Instance (Osnovni sud) in Bar ruled in favour of the applicant, ordering the debtor to pay 36,000 German Marks, statutory interest and specified legal costs. This judgment became final on 7 January 1997.

On 18 March 1997 the High Court (Viši sud) in Podgorica rejected the debtor’s appeal as having been lodged out of time.

On 16 April 1997 the Court of First Instance issued an enforcement order (rješenje o izvršenju) ordering the sale of the debtor’s flat by means of a public auction.

On 5 May 2000 the same court established the value of the flat at issue.

The public auction, scheduled for 1 September 2000, was cancelled on account of the judge’s absence. No further auctions have been scheduled thereafter.

On 31 October 2006 the Court of First Instance stayed the enforcement proceedings (prekida se postupak izvršenja) due to the debtor’s death. On 8 November 2006 this decision was posted on the applicant’s door, after a prior written notice (poslije pismenog obaviještenja rješenje pribijeno na vrata).

On 9 September 2009 the applicant wrote to the President of the Court of First Instance, urging that the decision at issue be enforced and asking that any relevant information in that regard be sent to him at his address in Skopje, “the former Yugoslav Republic of Macedonia”.

On 15 September 2009 the applicant was informed that the enforcement proceedings had been stayed on 31 October 2006.

On 25 September 2009 the applicant wrote again to the President of the Court of First Instance seeking that the enforcement proceedings be expedited.

On 28 September 2009 the applicant proposed that the enforcement proceedings be continued in respect of the debtor’s heirs.

On 13 October 2009 the Court of First Instance in Bar invited the applicant to provide the names and the addresses of the debtor’s heirs within three days, in default of which his request would be considered withdrawn. It was further specified that no appeal was allowed against this decision.

On 9 December 2009 the applicant appealed. He submitted that he did not know the names and the addresses of the debtor’s heirs, and that it was impossible for him to find this out, especially within three days. He further maintained that the court should have acted pursuant to section 32 of the Enforcement Act and should have found the debtor’s heirs, or, alternatively, should have appointed a temporary representative for them without delay (see paragraph 45 below).

On 18 December 2009 the Court of First Instance requested the Real Estate Office in Bar (Uprava za nekretnine, područna jedinica Bar) to provide a property certificate (list nepokretnosti) for the flat at issue.

On 28 December 2009 the Real Estate Office provided the requested certificate, which indicated that the new owners of the flat were B.N. and A.N., the registered address of the former being in Serbia.

On 21 January 2010 the Court of First Instance rendered a decision to continue the enforcement proceedings, designating B.N. and A.N. as the new debtors. On 3 February 2010 this decision was served on A.N. The delivery to B.N. failed as he appeared not to live at the provided address in Serbia.

On 15 April 2010 the Court of First Instance requested the relevant Police Directorate in Serbia to inform it if B.N. had residence there and, if so, at which address.

On 16 February 2011 the Ministry of Justice of Serbia informed the Ministry of Justice of Montenegro that B.N. had a permanent residence in Serbia, but that he actually lived in Montenegro. On 8 March 2011 this information was forwarded to the court in Bar.

On 13 June 2012 the court in Bar invited the applicant to pay 233.88 EUR “for publishing a notice (oglas) in the media, pursuant to section 94 paragraph 6 of the Enforcement Act” (see paragraph 50 below), in default of which the enforcement would be terminated (obustaviti).

On 4 July 2012 the applicant’s objection against the previous decision was rejected as inadmissible. It was specified that, pursuant to section 169 of the Enforcement Act 2011, a notice on sale was to be published in the newspapers (see paragraph 51 below). At the same time, the applicant was informed that on 11 October 2011 another interim measure prohibiting the sale of the flat at issue had been deleted from the register of the Real Estate Office, thus creating the conditions for these enforcement proceedings to be concluded (see paragraph 34 below).

There is no information in the case file that the notice on sale was published in the newspapers or that B.N. was served with the enforcement decision of 21 January 2010. The enforcement proceedings would appear to be still pending.

On 26 February 2004 the debtor passed away.

On an unspecified date in 1997 a private person X instituted civil proceedings against the debtor and another private person. On 7 April 1998 the court in Bar issued an interim measure prohibiting the debtor from selling the flat at issue and ordered that this measure be registered by the Real Estate Office in Bar until these proceedings were concluded. On 10 September 1999 the proceedings ended. On 11 October 2011 the interim measure was deleted, following a relevant order of the court in Bar to that effect.

On an unspecified date in 2008 a private person Y filed a compensation claim against A.N. and three other private persons. On 11 March 2009 these proceedings were registered in respect of the flat at issue by the Real Estate Office (zabilježba spora). On 23 October 2009 these proceedings ended by a court settlement of the parties. On 12 October 2011 the court in Bar ordered that the note on the proceedings be deleted from the register of the Real Estate Office.

On 24 November 2010 the court in Bar requested the Central Bank to calculate the interest rate applicable to the amounts of 34,891.30 EUR and EUR 104.85 starting from 25 March 2004. On 30 November 2010 the Central Bank informed the court in Bar that the requested amounts were EUR 52,411.59 and EUR 157.49, respectively.

There is no information in the case file as to when the applicant’s lawyer ceased to represent him save for the letter of 9 September 2009 in which the applicant asked the courts that all the relevant information be sent to him (see paragraph 19 above).

Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.

Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.

The Act entered into force in November 2008.

Section 4 § 1 provided that enforcement proceedings were urgent.

Section 14 provided that the Civil Procedure Act would apply accordingly to the enforcement proceedings unless provided otherwise by this or another federal Act.

Section 32 provided that in cases where the enforcement proceedings were stayed due to the death of one of the parties the relevant court would inform thereof the heirs of that party, if their names and addresses were known, as well as the opposite party. If the names or addresses of the heirs were not known the court would, without a delay, appoint a temporary representative for them.

Sections 134-176, inter alia, set out details as regards enforcement by means of a public auction.

The Enforcement Procedure Act 2004 entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286, however, all enforcement proceedings instituted prior to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act 2000.

This Act entered into force on 25 September 2011 and thereby repealed the Enforcement Procedure Act 2004. Section 292 § 1, in particular, provides that all enforcements (postupci izvršenja) would be terminated in accordance with this Act.

Sections 6 § 1 and 14 of this Act correspond, in substance, to sections 4 § 1 and 14 of the Enforcement Procedure Act 2000.

Section 94 sets out details as regards the sale of the debtor’s movable property.

Sections 154-184 set out details as regards the sale of real estate as well as regards enforcement by means of a public auction. In particular, section 169 provides, inter alia, that a notice on sale of a real estate shall be published in the media.

Section 211 provides that the proceedings shall be stayed (postupak se prekida) when one of the parties passes away.

Section 214 provides, inter alia, that proceedings which were stayed due to the death of one of the parties shall be continued when the heirs or an administrator of the estate (staralac zaostavštine) take over the proceedings or when the court invites them to do so upon a proposal of the other party to that effect.

Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative.

Section 136 provides, inter alia, that a decision against which a separate appeal may be filed shall be delivered in person to a party or his/her representative. If a person who is to be served does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in section 137, requesting that he/she be present on a certain day and hour in his flat or office. If the bailiff does not find the person to be served even after this, he/she shall proceed in accordance with the provisions of section 137 of this Act and the delivery shall thus be considered as having been carried out.

Section 137 provides that if the person to whom a court document is to be delivered does not happen to be at home, the delivery shall be accomplished by serving the court documents on an adult member of his/her household, who must receive them. If such persons also happen not to be at home, the court documents shall be served on a neighbour, if he/she agrees.

Section 138 provides that if the person to be served, an adult member of the household, an authorised person or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the delivery shall be considered accomplished.

Section 142 § 1 provides that when a party to the proceedings or his/her representative changes his/her address during the proceedings they shall immediately inform the court thereof.

This Act entered into force on 10 July 2004.

This Act provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje).

Section 10, in particular, provides that the president of the relevant court shall decide upon the request for review, which, pursuant to section 9, is to be submitted to the court before which the case is pending and must contain the name and the address of the party, the registration number of the case or other data on the basis of which it can be established to which case it refers, the data and circumstances indicating that the court is unjustifiably prolonging the proceedings, and the signature of the party.

Section 17 provides that if the judge notifies the president of the court that certain procedural measures will be undertaken no later than four months after the receipt of the request for review, the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review.

Section 23 § 1 provides that if the president of the court acted pursuant to section 17 the party cannot file another request for review in the same case before the expiry of the period specified in the notification.

Pursuant to section 24 § 1 if the president of the court does not deliver a notification on the request for review to the party pursuant to section 17 the party may lodge an appeal.

Section 44 provides that this Act shall apply also to judicial proceedings initiated before the entry into force of this Act but after 3 March 2004. In the determination of a legal remedy for violations of the right to trial within a reasonable time, the violations of the right which occurred after 3 March 2004 shall be established. When establishing the violation of this right, the Court shall also take into consideration the length of the judicial proceedings prior to 3 March 2004.

This Act entered into force on 21 December 2007.

Between 21 December 2007, which is when the Right to a Trial within a Reasonable Time Act entered into force, and 3 September 2012, the courts in Montenegro considered more than 121 requests for review. The Court of First Instance in Cetinje submitted the data only for the period between 1 May 2011 and 15 May 2012, and the Court of First Instance in Žabljak for the period between January 2011 and June 2012. Also, the Court of First Instance in Danilovgrad and the Court of First Instance in Kolašin did not provide the exact number of the requests for review that had been dealt with by these two courts. All the other courts dealt with 121 requests for review in total.

In forty-six cases the courts issued notifications specifying the concrete actions that would be undertaken in each case within four months with a view of expediting the proceedings (see paragraph 62 above). In thirty cases of these forty-six the relevant actions were undertaken within the set time-limit (a main hearing concluded, a decision or a judgment rendered etc.). In fourteen cases the relevant actions were undertaken within periods ranging between 4 months and 12 months. In two cases the relevant action specified in the notification would not appear to have been undertaken even after a period of 12 months.

In thirty-three cases the requests for review were dismissed as unfounded. In twenty-one cases of these thirty-three the relevant domestic proceedings would appear to have been pending before the first-instance courts between 5 months, and 1 year and nine months at most. In one case the relevant civil proceedings in respect of which the request for review was dismissed as unfounded had already been pending for at least 4 years and 5 months before a first-instance court. In eleven cases it is unclear how long the relevant domestic proceedings had lasted.

It is unclear how the additional thirty-three requests for review had been dealt with. However, it would appear that in eighteen cases out of these thirty-three the relevant domestic proceedings ended soon thereafter. The status of the remaining fifteen proceedings is not known.

Lastly, in five cases the appellants were informed that the relevant decisions had been rendered in the meantime and in four cases the requests for review were withdrawn.


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant, Mr Mihailo Petrović, is a Serbian national who was born in 1963 and lives in Gornji Milanovac. He is a licensed attorney and a member of the Belgrade Bar Association (Advokatska komora Beograda).

On 9 December 2010 the Court’s Registry sent the following letter to the President of the said bar association:

“As you will know, the European Court of Human Rights and its Registry are always looking to develop a relationship of trust with the community of legal professionals. Only through this mutual trust can the Court function to ensure the highest standards of protection of human rights. It is for this reason that the President of the Second Section considers it appropriate ... to inform you about the practices of one of your colleagues and a member of your distinguished association.

You will certainly be well informed about the volume of cases being lodged before the European Court of Human Rights against the Republic of Serbia, which today amounts to more than 3,500. In about 400 of those cases, the applicants appeared to be represented by Mr Mihailo Petrović, an attorney registered with the Belgrade Bar Association, but ... [apparently] ... having an office and most of his clients in Gornji Milanovac. In the course of the examination of some of these cases, it transpired that on at least three occasions Mr Petrović had submitted applications on behalf of deceased persons (with the power of attorney signed on behalf of at least one of those persons after his death). In a number of other cases, the Court had doubts as to the authenticity of the powers of attorney supplied with the applications.

As it is necessary for the Court to be able to rely on the veracity of the material submitted to it, the President of the Second Section, to which the cases at issue were assigned, decided, [on 3 March 2010 and] in the best interests of the applicants, to ban Mr Petrović from representing applicants before the Court[, at present and in the future,] ... [T]he Court informed Mr Petrović himself, as well as each of the applicants, about this development ... [A] letter ... [to this effect] ... was served upon Mr Petrović on 12 March 2010. Since he continued to act as the applicants’ attorney [thereafter], the Court reminded him of the ban. This second letter was served upon Mr Petrović on 26 April 2010.

Recently, Mr Petrović continued acting on behalf of the applicants, sometimes as their attorney and sometimes only by preparing [their] submissions for the Court, but each time requesting reimbursement of his fees, even though he is well aware that the Court will not take into consideration such requests.

... [Aware] ... of the importance of our [common] calling and the necessity of being led by the highest moral and professional standards[,] ... [we] ... address you on this delicate subject, being certain that you will know how best to approach this issue, and make sure that those standards continue to guide members of your association in [their] dealings with the Court.”

In his correspondence of 18 January 2011, received by the Court on 1 February 2011, the President of the Belgrade Bar Association responded as follows:

“I am hereby informing you that, ... I have[,] with utmost seriousness[, taken] into consideration ... [the contents of your letter, particularly given] ... the fact that in the ... [conduct of Mr] ... Mihailo Petrović there are elements ... [indicating a breach of the Attorneys’] ... [P]rofessional [E]thics ... [Code] ... I [have also] forwarded ... [your] ... letter to the Disciplinary bodies of the Bar Association of Belgrade.

... [Further,] ... your ... letter will be considered at the meeting of the Managing Board of the Bar Association of Belgrade ... [which shall] ... be held at the end of January 2011.

You will be ... notified ... [in a timely manner of] ... the ... [measures which] ... will be taken by the Disciplinary bodies of the Bar Association of Belgrade and the Managing Board.

[Since] ... the European Court of Human Rights[,] as well as the legal profession[,] both protect the same values, i.e. human rights, I share your opinion that attorneys-at-law[,] in their professional engagement[s,] should fulfil the highest moral standards.”

The Court has received no further information from the Belgrade Bar Association.

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

On six separate occasions, between 1998 and 2000, the police confiscated foreign currency from Mr A, who had been suspected of illegal currency trading.

In 2001 Mr A passed away, leaving behind a wife and two children (B and C).

In 2005 Ms D’s employment with a public corporation was terminated.

Less than two months thereafter Ms D filed a civil claim, seeking salary arrears.

It is unclear as to whether these proceedings are still pending.

In 1999 Mr E was involved in a traffic accident with a bus belonging to a “socially-owned company” (see R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 71-76, 15 January 2008). In order to avoid a collision, he apparently swerved off the road and sustained injuries.

In 1987 Mr F was injured in a traffic accident.

In 1988 Mr G, driver of the socially-owned vehicle who had caused the accident, was convicted, fined, and ordered to pay litigation costs. Mr F was advised by the competent court to seek pecuniary and/or non-pecuniary damages in a separate civil suit. This judgment became final several months thereafter.

There is no information in the case file as to whether the said civil suit was ever initiated.

In 2003, in a reinstatement and personal injury case, the competent court ruled partly in favour of Mr H.

Several months later, this judgment was partially quashed on appeal and remitted to the competent court of first instance for re-examination.

It remains unclear as to what happened in this suit thereafter.

In 2004 the competent court ruled in favour of Mr I, ordering his former employer to pay him the accrued salary arrears. On an unspecified date thereafter this judgment apparently became final.

In 1994 the competent court ruled in favour of Mr J and Mr K, ordering an agricultural cooperative to pay them a certain amount of compensation on account of the land confiscated by the former communist authorities. This decision became final several months thereafter.

It would appear that in 1999 insolvency proceedings were instituted in respect of the agricultural cooperative in question.

In 2001 Mr J passed away and was succeeded by his son and legal heir, Mr L.

In 1987 a civil case concerning, inter alia, the re-possession of a vehicle was filed against Ms M.

Shortly thereafter the competent court ordered Ms M to return the truck at issue to the plaintiff for “safekeeping”, until the conclusion of the civil suit.

By 1989 the proceedings were concluded, the final decision being partly in favour of Ms M. The plaintiff’s claim as regards the re-possession of the truck was rejected.

In the meantime, however, the plaintiff had apparently sold the truck to third persons.

In 2001 Mr N filed an employment-related claim with the competent court, seeking salary arrears.

In 2004 the court ruled partly in favour of Mr N, and in 2005 this judgment was confirmed on appeal.

In 2006 the Supreme Court rejected Mr N’s appeal on points of law as inadmissible.

In 2001 Mr O filed an employment-related personal injury claim.

Within a month the competent court ruled in favour of Mr O, but this judgment was subsequently quashed on appeal.

In 2003 the competent court of first instance once again ruled in favour of Mr O.

There is no information in the case file as to what happened in the proceedings thereafter.

Ms P was employed with a socially-owned company between 1989 and 1991. It would appear that during this time her employer had, inter alia, failed to fully cover her social security contributions.

In addition to the present eleven applications, the applicant has filed more than 500 separate applications with the Court against Serbia, Croatia, Slovenia, Montenegro, Bosnia and Herzegovina, as well as the Former Yugoslav Republic of Macedonia. Most of these applications have yet to be assigned to a decision body. Of the said 500 applications, more than 400 correspond in character to the applications at issue in the present case, whilst as regards the remainder the applicant appears as the legal representative of his clients, who have themselves been identified as applicants.


The applicant, Ms Inga-Lill Wretlund, is a Swedish national who was born in 1958 and lives in Påskallavik. She was represented before the Court by Mr B. Villner, a trade union lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.

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

The applicant is since 1986 employed as an office cleaner at a nuclear plant in Oskarshamn. Assigned to clean the offices at the plant, she is not working in an area where she might be subjected to radioactivity and is thus not obliged to undergo any radiological examinations under the security rules for nuclear plants in Sweden.

The applicant is a member of the Swedish Electricians' Union (Svenska elektrikerförbundet) which has approximately 170 members working at the nuclear plant. Her employer – OKG Aktiebolag (hereinafter “OKG”), a privately owned limited liability company that owns the plant – is a member of the Energy Companies' Employers Confederation (Energiföretagens Arbetsgivareförening). The central collective agreement in force between the two organisations concerned (Kraftverksavtalet) does not provide for any drug or alcohol tests on the employees. In 1991, following discussions within a working group which included the OKG's medical doctor and representatives of the company and the four trade unions represented at the company, a drug policy programme was agreed upon which stipulated, inter alia, that job applicants should undergo a drug test in connection with the health examination before they could be employed. In the autumn of 1993 the working group proposed that those already employed should also undergo tests. OKG and three of the four trade unions then concluded local collective agreements which introduced at the plant a drug policy programme involving compulsory drug and alcohol tests for all the members of those unions. OKG wished to conclude a similar agreement with the applicant's trade union but the union declared on 20 December 1993 that it did not accept it. Nevertheless, in 1994 OKG decided that also members of the applicant's trade union should be subjected to drug and alcohol tests. As from March 1995 contractors' employees who perform work for OKG are also tested. Further negotiations on this issue with the applicant's union, held at local and central level, were fruitless and terminated at the end of 1995.

The drug policy programme, which was replaced by a new, essentially identical, programme in December 1995 and which is contained in an instruction issued by OKG (Vår syn på alkohol och narkotika), involves the taking of urine samples from the employees every third year. The tests aim to detect the use of both drugs and alcohol but the drug part of the tests concerns only the presence of cannabis. The employee is notified about a week in advance of the test, which consists of delivering a urine sample in private. The sample is taken care of by an occupational health nurse working under instructions from the hospital at Huddinge and the sample is sent to a laboratory at the hospital for analysis. The employee should state on a form, inter alia, what kind of medication, if any, he or she has taken during the preceding week. He or she further signs a referral, thereby consenting to the testing and giving permission to the laboratory to inform the occupational health service of the result. By signing a special form, the employee may also consent to his or her immediate supervisor being informed. If a test is positive, the employee will be requested to talk to the company doctor who shall provide information on possible rehabilitation measures, which may include detoxification and transfer to other duties, if the latter is motivated by reasons of security and safety. The last consequence of continued drug or alcohol abuse may be dismissal. According to the programme, a refusal to undergo the test is treated as a positive test result. However, if an employee refuses to participate in the testing for reasons of principle and there are no signs of drug abuse, the employee will not be dismissed. The OKG staff was informed of the programme, both orally and in writing, through an extensive information campaign.

In 1996 the Swedish Electricians' Union introduced proceedings against OKG and the Energy Companies' Employers Confederation before the Labour Court (Arbetsdomstolen) seeking a declaratory judgment that the applicant was not obliged to participate in the drug and alcohol tests. The trade union claimed that OKG had no right to require that the applicant undergo such tests. The union argued that the tests were in breach of Article 8 of the Convention, the collective agreement in force and the Swedish Secrecy Act (Sekretesslagen; 1980:100). Should the tests be considered not to be in breach of the collective agreement, the union argued, in the alternative, that the matter must be considered as unregulated. Furthermore, the union held that the individual employment contract between OKG and the applicant did not provide for such tests. Also, the union alleged that the tests were unjustified having regard to the applicant's tasks at the nuclear plant.

By a judgment of 26 August 1998 the Labour Court found that the applicant was obliged to participate in the drug test but not in the alcohol test. The Court first noted that there was no legislation specifically regulating the right of employers to submit employees to drug tests against their will. It referred, however, to an earlier case before the Labour Court (AD 1991 no. 45) which concerned the question whether two employees in a company that assembled scaffolding had been lawfully dismissed due to their refusal to submit to drug testing. In that case, the court had found that the employees had been obliged under the individual employment contracts to participate in the testing.

In the case at hand, the Labour Court found that a general prohibition against drug testing could not be derived from the right to respect for family life under Article 8 of the Convention. It stated, however, that in certain circumstances such testing might be incompatible with the Convention and therefore contravene Swedish law. Circumstances of relevance were, for example, the employer's interest in carrying out drug tests, the degree of interference with the individual's integrity and the way in which the testing was performed.

The court further considered that the tests in question were naturally connected with the type of business conducted by OKG and, consequently, that the right to order employees to undergo such tests could be seen as part of the company's right to manage and organise the work according to the central collective agreement, Kraftverksavtalet. Nevertheless, an employee not bound by a collective agreement on drug testing could not be obliged to submit to such testing without limitations.

In balancing the interests of the company and the individual, the Labour Court first noted that OKG was running a nuclear power plant which entailed certain risks specific to this activity and which was subjected to far-reaching demands on security imposed by the relevant public authorities. The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) had expressed the necessity of conducting drug tests as a means of upholding a drug-free environment at such plants. Moreover, the Labour Court noted that OKG was under an obligation, under the Work Environment Act (Arbetsmiljölagen, 1977:1160) to take measures preventing illnesses and accidents at work.

The Labour Court thus concluded that OKG had a strong interest to carry out the tests in question in order to maintain a drug-free work environment. It observed that drug testing was made at all the Swedish nuclear power plants. Furthermore, according to the court, it would be impractical to make a distinction between employees working in areas where there were special security hazards and other employees. It was moreover possible that employees would be moved from a workplace with little risk to another one where there was a specific risk. In addition, having regard to the character of OKG's business, there was an interest in showing to the outside world that the nuclear power plant was absolutely drug-free.

Turning to the interests of the individual, the court had regard to the procedures for the tests and considered that the possible infringement of the test procedures as such on the individual's integrity was of very little significance. It further noted that the fact that there did not appear to be any drug abuse at OKG did not as such make the testing unnecessary; on the contrary, in the court's view, a drug policy programme would be considerably less credible if no tests were made and, moreover, the knowledge that tests were made had a preventive effect.

Having regard to the foregoing, the Labour Court found that the applicant was obliged to submit to the drug test. It considered, however, that there was a fundamental difference between the use of drugs and the use of alcohol, in that the former was illegal whereas the latter was legal and socially accepted. As a positive test result would lead to an investigation into the individual's use of alcohol – a highly sensitive matter in terms of personal integrity – and as, furthermore, there were some doubts as to the accuracy of the alcohol test, the court concluded that the applicant could not be obliged to take the alcohol test.

No appeal lay against the judgment of the Labour Court.

It is a long-standing tradition in Sweden that labour market issues such as wages and other working conditions are dealt with by the parties acting on that market with little interference from public authorities. In 1906-07 the Swedish Trade Union Confederation (Landsorganisationen) and the Swedish Employers' Confederation (Svenska arbetsgivareföreningen) concluded an agreement, the so-called December Compromise (decemberkompromissen), whereby the trade unions accepted, inter alia, the employers' right to manage and organise the work and the employers recognised the workers' freedom of association. The agreement has been reflected in many collective agreements since.

In an early judgment (AD 1930 no. 52), the Labour Court considered the employers' right to manage and organise the work as forming a general legal principle. This principle has been confirmed in subsequent judgments by the Labour Court (see, inter alia, AD 1964 no. 5 and AD 1983 no. 46). The right to manage and organise the work remains with the employer, unless otherwise stipulated in collective or individual agreements or in legislation. This right is, however, not unlimited. It must not be exercised in contravention of the law or “good labour market practice” (“god sed på arbetsmarknaden”). The Labour Court has interpreted the notion of “good labour market practice” in a large number of judgments (see, inter alia, AD 1997 no. 74).

It follows from the established case-law of the Labour Court that an employer may have the right to carry out control measures in relation to the employees. Such a right may be based on collective agreements, individual employment contracts or on the employer's right to manage and organise the work. Examples of control measures are work-time studies, physical searches (AD 1943 no. 77) and drug and alcohol tests (AD 1991 no. 45 and AD 2001 no. 3).

An employer may not exercise his right to apply control measures in an arbitrary, unreasonable or inappropriate manner. The employer must make sure that such measures are carried out in conformity with both legal provisions and “good labour market practice”. In assessing whether a control measure decided by the employer meets the standards of “good practice”, the Labour Court has applied a principle of proportionality, balancing the employer's interest in using the measure in question and the employee's interest in protecting his or her integrity.

Rules on dismissal from employment are contained in the Employment Protection Act (Lagen om anställningsskydd, 1982:80). A collective agreement or an employment contract is invalid to the extent that it excludes or limits employees' rights under the Act. Pursuant to section 7 of the Act, dismissal of an employee must be based on objective grounds (saklig grund). Such grounds do not exist where it may reasonably be required that the employer provide other work for the employee. There is an extensive body of case-law from the Labour Court dealing with the interpretation of the requirement of objective grounds. Two cases concern employees who were dismissed because of their refusal to participate in drug testing. In both cases, the Labour Court found, in balancing the opposing interests involved, that the employer's request that the employees undergo a drug test was justified. In one of the cases (AD 1991 no. 45) the court concluded, however, that the requirement of objective grounds for dismissal was not satisfied. In the other case (AD 2001 no. 3) it reached the opposite conclusion. That case concerned a person, employed as a school help, who was suspected of having relapsed into drug abuse and was dismissed after repeatedly refusing to comply with the employer's request that he submit to a drug test.

The Nuclear Activities Act (Lagen om kärnteknisk verksamhet, 1984:3) contains basic provisions on safety in connection with nuclear activities, such as the operation of nuclear power reactors. Nuclear activities require a licence and the licence holder has full responsibility for the safe operation of the facility. A licence may be revoked if safety conditions or safety regulations are not complied with.

The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) supervises all nuclear activities in Sweden. It has laid down basic regulations on nuclear safety (SKIFS 1998:1) which entered into force after the Labour Court's judgment in the present case. In recommendations accompanying these regulations, it underlines that there should be a documented policy for dealing with different factors which could affect staff performance in a way that is relevant to safety and security, for example alcohol and drugs. Such a policy should include directions on, inter alia, the testing of personnel and the action to be taken when someone is found to be under the influence of alcohol or drugs or in the event of abuse.

Provisions on professional secrecy for medical staff working in the private sector were, at the material time, to be found in the Act on Duties for Personnel in the Health and Medical Service (Lagen om åligganden för personal inom hälso- och sjukvården, 1994:953). The obligation to observe secrecy does not usually apply if the individual concerned consents to information being disclosed. Thus, with the individual's consent, information may be submitted to another individual, for example his or her employer.

A committee appointed by the Government in 1994 to look into the issue of medical testing in the workplace submitted its report in April 1996 (SOU 1996:63) in which it found no grounds for proposing legislation concerning drug tests in the workplace. It considered that this issue should be solved by the parties on the labour market. It recommended that, where drug tests were to be applied, there should be a written drug policy, including an action programme, drawn up jointly by the employers and employees.


Lack of jurisdiction to examine complaint under Art. 3;Lack of jurisdiction to examine complaint under Art. 14;No violation of Art. 7 (first applicant);Violation of Art. 7 (second applicant);Violation of Art. 10;Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (independence and impartiality);Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicants, Mr Fikret Başkaya and Mr Mehemet Selim Okçuoğlu, are Turkish citizens. The first applicant was born in 1940 and lives in Ankara. He is a professor of economics and a journalist. The second applicant was born in 1964 and lives in Istanbul. He is the owner of a publishing house, Doz Basin Yayin Ltd Sti.

In April 1991 Doz Basin Yayin Ltd Sti published a book written by the first applicant and entitled Batılılaşma, Çağdaşlaşma, Kalkınma – Paradigmanın İflası/Resmi İdeolojinin Eleştirisine Giriş (“Westernisation, Modernisation, Development – Collapse of a Paradigm/An Introduction to the Critique of the Official Ideology”).

The book was an academic essay of 219 pages, containing 370 references, which involved a description of the socio-economic evolution of Turkey since the 1920s and the analysis and criticism of the “official ideology” of the State. According to the titles listed in the table of contents, the author dealt with the following topics: Intelligentsia and Official Ideology; The Characteristics of the National Struggle; The Question of the National Character of the National Struggle; The Comintern and whether the National Struggle was Anti-Imperialist; Mustafa Kemal and the Individual’s Role in History; The Characteristics of the Kemalist Regime: an Original Form of Bonapartism; Productive Forces and Economic Policies; Bonapartist Regime and Accumulation of Capital; A Classless, Privilegeless, Populist Dictatorship; The Evolution of Socio-Economic Formation in the Neo-Colonialist Era; The Eighties: Strengthening of the Satellitisation Process; The Collapse of the Paradigm and the Science of Economics: Means to Legitimise Existing Tendencies.

The impugned chapter of the book included the following passages:

“The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) (type of political regimes) as well as the ‘unique’ nature of relationships between these four neighbouring States make it a complicated issue.

We have two reasons why we wish to discuss the problem, even if in limited form, within the plan and scope of this book. These are to indicate the ‘irrationality’ of official ideology and the real nature of Milli Mücadele. In other words, [we wish] to discuss whether what is presented as ‘Kurtuluş Savaşı’ [Independence War] is in reality an ‘Independence Movement’ or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily ‘control’ over these four States. Although the Kurdish problem is of great importance with regard to the protection of the imperialist status quo in the region, we shall not here go into an analysis of this aspect of the problem. [page 51]

On the other hand, the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey. As a contradiction, even though ‘the assumption of non-existence’ of the Kurdish Nation constitutes an important element of the official ideology, this is at the same time the weakest point of the ideology in question. It is not possible ‘to eliminate with the mind’ a nation which exists and the objective reality continues to exist regardless of the nonsense and unfounded suspicions of the people. Of course, this does not mean that the nonsense, unfounded suspicions have no effect! There is never a lack of those who profit from it, acquire bureaucratic, academic careers, receive high salaries, go up the step ladder of the political arena ... [page 52]

It was believed that colonialism would come to an end with the abolishment of direct political-military-police control in the colonies. Today, however, the [natural] resources of the Third World are carried to imperialist countries in volumes which are much higher than those of the colonial period. Therefore, the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force. [page 59]”

It appears that the publication of the book came to the notice of the prosecution authorities on 3 May 1991.

On 2 August 1991 the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi), having regard to the contents of the book in question, issued an indictment against the applicants. The first applicant, as the author of the book, was charged under section 8(1) of the Prevention of Terrorism Act 1991 (“the 1991 Act”) with disseminating propaganda against the indivisibility of the State. The second applicant, as the owner of the publishing company, was charged under section 8(2) of the 1991 Act. In the bill of indictment, the public prosecutor quoted extracts from the chapter of the book reproduced at paragraph 11 above.

In the proceedings before the National Security Court, the applicants denied the charges and sought their acquittal.

The first applicant submitted that his book had been an academic work that could not be viewed as propaganda. Being a professor he had had the duty to conduct research and publish his conclusions and could not be forced to accept the “official version of reality”. His book might be judged by academics, but not by the courts. It could not be permissible to try and convict someone for the expression of his or her opinion.

The second applicant submitted, inter alia, that it was not possible to make an assessment of the book as a whole solely on the basis of extracts from a single chapter. He alleged that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and Turkey’s international obligations. There was a “Kurdish problem” in Turkey and commenting or expressing ideas on this problem could not constitute an offence.

In a final statement dated 18 March 1992, the public prosecutor requested the conviction of the first applicant under section 8(1) of the 1991 Act and that of the second applicant under section 8(2), as well as the confiscation of all copies of the book. The public prosecutor considered that the offence had been committed on 3 May 1991.

On 14 October 1992 the court acquitted the applicants. It held that the book as a whole was an academic work containing no elements of propaganda.

The public prosecutor appealed. He submitted that the book alleged that a certain part of Turkish territory had belonged to “Kurdistan” which the Turks had annexed and colonised. Concluding that the book did indeed disseminate propaganda against the indivisibility of the State, he requested that the verdict be set aside.

On 4 February 1993 the Court of Cassation quashed the decision of the trial court and referred the case back for retrial. It gave the following reasons:

“In the writings on pages 51 to 59 of the book … it is stated that a part of the territory within the borders of the Turkish Republic is a part of Kurdistan which belongs to the Kurdish nation, and that this territory has been annexed by the Turks and is subject to colony status. The Istanbul National Security Court, without considering that [the above] statement, as such, exceeds the limits of criticism and constitutes dissemination of propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation, found [both] accused ‘not guilty’.

The judgment … is contrary to the law and thus, the public prosecutor’s grounds of appeal are upheld. Accordingly, it is unanimously decided that the judgment be reversed …”

In a judgment dated 5 August 1993, the Istanbul National Security Court found the applicants guilty of the offences with which they had been charged. It sentenced the first applicant to two years’ imprisonment and a fine of 50,000,000 Turkish liras (TRL) and the second applicant to six months’ imprisonment and a fine of TRL 50,000,000. Considering the applicants’ good conduct during the trial, the court reduced the first applicant’s sentence to one year and eight months’ imprisonment and a fine of TRL 41,666,666 and the second applicant’s sentence to five months’ imprisonment and a fine of TRL 41,666,666. On the other hand, the court dismissed the public prosecutor’s request for an order of confiscation of the book.

In its reasoning supporting the convictions, the court stated:

“After the examination of the book which is the subject of the offence, it is understood that the [following] statements

on page 51 that ‘The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) ...’, ‘to discuss whether what is presented as “Kurtuluş Savaşı” [Independence War] is in reality an “Independence Movement” or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily “control” over these four States ...’,

on page 52 that ‘the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey... It is not possible “to eliminate with the mind” a nation which exists ...’

and on page 59 that ‘the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force.’

identify a certain part of the Turkish Republic as Kurdistan, declare that the Turkish Republic rules this region with colony status and thus aim to disseminate propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation. Therefore, the following sentence shall be drafted under the provisions of Law no. 3713 which is applicable to the proven acts of the accused.”

The applicants appealed to the Court of Cassation, which held a hearing in the case. The applicants, while reiterating the defence made before the National Security Court, emphasised that the latter had failed to consider the book as a whole and had erroneously based its decision on an assessment of one chapter. The first applicant maintained that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and the Convention, and he could not therefore be tried and convicted under that provision. He also referred to his previous arguments concerning the lack of clarity of the relevant provisions of the 1991 Act. The second applicant asserted that his sentence to imprisonment had been unlawful in that section 8(2) only authorised the imposition of a fine.

In its decision of 16 December 1993, delivered on 22 December 1993, the Court of Cassation upheld the National Security Court’s findings and dismissed the appeals.

As of 18 March 1994 the first applicant was dismissed, under section 98(2) of the Civil Servants Act (Law no. 367), from his post as lecturer at the University of Ankara. The relevant decision referred to his conviction under the 1991 Act and to his being sentenced to twenty months’ imprisonment.

On 3 October 1997 the National Security Court granted a request by the prosecution for an order of seizure in respect of the sixth edition of the impugned book.

The applicants served their sentences in prison and paid the fines. After the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul National Security Court re-examined the second applicant’s case. On 19 April 1996 the court held that these amendments could not be applied to his case as he had already served his sentence.

The relevant provisions of the Criminal Code read as follows:

“Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.”

“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …”

The relevant provisions of the Press Act 1950 read as follows:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

(before amendment by Law no. 4126 of 27 October 1995)

“[(1)] Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

[(2)] Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[]. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

(as amended by Law no. 4126 of 27 October 1995)

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

[(2)] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

[(3)] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras …

The Government have submitted case-law concerning the application of section 8, details of which may be found in Karataş v. Turkey [GC], no. 23168/94, § 22, ECHR 1999-IV.

“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”

However, the provisions of this section shall not apply to convictions pursuant to section 8.”

A summary of the relevant domestic law governing the organisation and procedure of the National Security Courts is contained in Karataş cited above, §§ 24-29.


The applicants, Mr Dragoljub Bijelić and Ms Barbara Bijelić, are Croatian citizens, who were born in 1933 and 1942 espectively and live in Karlovac. They are represented before the Court by Mr N. Mamula, a lawyer practising in Karlovac. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik.

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

On 25 February 1993 the applicants' house in Turanj, Croatia was blown up by unknown perpetrators.

On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation. The new legislation was to be enacted within six months.

On 15 December 2000 the applicants instituted civil proceedings in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking damages for their destroyed property from the State.

At a hearing held on 19 March 2002 the Municipal Court decided to stay the proceedings pursuant to the above legislation. It appears that the court nevertheless continued the proceedings.

On 11 October 2002 the Municipal Court gave judgment dismissing the applicants' claim as time barred.

Following an appeal, on 14 May 2004 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first instance judgment. The applicants filed a request for revision on points of law and the proceedings still appear to be pending before the Supreme Court (Vrhovni sud Republike Hrvatske).

Meanwhile, on 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”).

The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima – Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows:

“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”

The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/96; “the 1996 Amendment”) reads as follows:

“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”

“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.

The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”

The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/02; “the Constitutional Court Act”) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”

Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01) reads 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 Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no. 117/03; “the 2003 Liability Act”) provides that all compensation for damage to property resulting from terrorist acts is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.

The Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides that the State shall grant reconstruction assistance to the owners of property damaged during the war. Any requests in this respect are to be filed with the competent administrative authority.

In its decision no. Rev 86/02-2 the Supreme Court ruled that proceedings concerning damages for terrorist acts, instituted after the 1996 Amendment entered into force, are not to be stayed.


The applicants are Polish citizens, born in 1967 and 1959 respectively and living in Gliwice, Poland.

s, may be summarised as follows.

In 1993, on the basis of a licence issued by the Ministry of Internal Affairs, the applicants founded a company specialising in the protection of property.

On 31 March 1994 the Katowice District Court convicted the applicants of one count of misappropriation and sentenced them to one year’s imprisonment and a fine of 20.000.000 (old) Polish zlotys, with two hundred days of imprisonment in default, and conditionally stayed enforcement of this sentence for a period of one year. The court further discontinued criminal proceedings concerning a charge of attempted misappropriation. Finally, the court imposed on the applicants an order prohibiting them from running, for a period of one year, the property protection business.

The court found that the applicants had first assisted the K. brothers in assigning to a certain J.C. the brothers’ claim against T.Z., which allegedly arose out of a civil law contract but one which had not been certified by any judicial decision. Subsequently, they had obtained from J.C. an authorisation to secure realisation of this claim against T.Z. On 22 March 1993 they went to a warehouse located in S., owned by T.Z., and stated that they wished to purchase a substantial amount of merchandise. After they had chosen the merchandise, the seller asked them what form of payment they propose. When she was informed that they did not propose to pay because their intention was to set off the claim which J.C. had acquired against T.Z. against the price due for the merchandise, the seller called the police. After the police arrived and told the applicants that they should have recourse to civil proceedings, they left the warehouse. They subsequently went to two other shops owned by T.Z., located in K., where they declared their intention to buy certain merchandise and, after it had been loaded on their van, they again refused to pay for it, stating that the payment due would be set off against the claim J.C. had against T.Z.

The court noted that there had been no dispute as to the facts. The accused had not called in question the facts as established on the basis of testimony given by the witnesses, but they had disagreed with the legal assessment of the facts by the prosecuting authorities. They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims. The court considered that the accused had failed to take note of Article 58 of the Civil Code which provided for a legal act to be null and void if effected in order to circumvent the law, or if it was contrary to the law, or contrary to good faith. The court considered that, although the applicants were conversant with civil law, their actions could not be construed as the mutual setting off of contractual claims. Their intention had been to conclude a contract of purchase and to refuse payment, invoking the assignment of claims to J.C.. The court considered that their acts amounted to an offence of misappropriation punishable under Article 204 of the Criminal Code.

The court further held that the applicants had abandoned, of their own will, their intention to proceed with the purchase of merchandise in S. and thus considered that the part of the criminal proceeding relating to this incident should be discontinued.

The applicants appealed. They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial. They complained that after the trial had been closed, T. R. had not been given a possibility to address the court, that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long. They also complained that B.Z., the wife of T.Z., had been questioned only on the last day of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law, whereas they had only resorted to a well-established civil law contract of assignment of claims which could be effected regardless of the creditor’s lack of knowledge and of his approval thereof.

The Prosecutor likewise lodged an appeal, claiming that the District Court had wrongly applied substantive criminal law in that it had assessed the applicant’s offence as misappropriation, whereas it should have been qualified as fraud. He further argued that the part of the proceedings relating to the applicants’ acts committed in S. should not have been discontinued because, in fact, the applicants had not abandoned their intention of their own will, but only after the seller had called the police.

On 8 July 1994 the Katowice Regional Court quashed the judgment under appeal and ordered that the case be reconsidered by the lower court.

The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings. The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed. The court further found that after the trial had been closed, the accused, including T.R., had had an opportunity to address the court orally. The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal. The fact that B.Z. had been questioned on the last day of the trial did not amount to an irregularity, as the lower court had been under no obligation to question witnesses in any given order. As to the legal argument on mutual setting off allowed under civil law, the court noted that the only document purporting to be evidence of the existence of the claims of the K. brothers against T.Z. merely showed that the latter had had certain obligations towards the A. company, of which the brothers had been shareholders, whereas the assignment of claims had purportedly been concluded between the K. brothers and J.C. The court concluded that there had been no credible evidence to prove the existence of T.Z.’s original contractual obligation towards the K. brothers.

The court observed that the applicants had requested J.C. to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of five per cent. Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants’ company. The court considered that such an assignment, in the absence of any details establishing the claims on which the applicants could seek payment, could not be regarded as valid under the applicable provisions of civil law.

The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other.

The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation. However, this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner. As this had not been the case, the legal assessment of the offences had to be amended. Accordingly the court quashed the judgment of the lower court.

On 20 February 1995 the Katowice District Court convicted the applicants of two charges qualified as a continuous offence of fraud, sentenced them to eighteen months’ imprisonment and a fine with imprisonment in default, and conditionally stayed enforcement of the sentence for a period of two years.

The court reiterated that, as the applicants had not called into question the facts of the case, the essence of the matter lay in the legal assessment of their acts. The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers. However, their genuine intention was, first, to enter into possession of the merchandise and, after this had been attained, to refuse payment and to declare that they intended to set off the price due against the claims against T.Z. which had purportedly been assigned to J.C. The court considered that in the light of the evidence given by the sellers, they would not have concluded such a contract with the applicants had they been informed of their real intentions. Thus the court considered that the setting off of the claims had been null and void and that the applicants’ acts met the statutory requirements of the offence of fraud, as set out in Article 205 of the Criminal Code applicable at the material time.

The applicants lodged an appeal, complaining that the judgment was in breach of substantive law, in that the court had accepted that their acts amounted to a criminal offence punishable under Article 205 of the Criminal Code, whereas in fact they had acted in conformity with the law. The applicants did not reiterate the complaint they had raised in their appeal against the judgment of 31 March 1994 that the legal qualification of the charges against them had been changed after the first-instance court had closed the trial.

On 23 May 1995 the Katowice Regional Court amended the first instance judgment of 20 February 1995, reducing the sentence to a fine of 1.000 new PZL, with one hundred days’ imprisonment in default, whilst upholding the remainder.

The court first noted that the applicants did not call into question the findings of fact made by the lower court. The court noted that T.Z. had never been asked by the A. company to pay his alleged debt. Thus, the claim could not be considered as due. The court considered that, for contractual claims to be validly set off against each other, the law required that the claims should not only be undisputed but also due, which conditions did not obtain in the present case. Moreover, the applicants, when purchasing merchandise owned by T.Z., had acted with a fraudulent intent, because their real intention was to take possession of the merchandise and then to refuse payment. Thus, the applicants’ argument that they had validly concluded a purchase contract with T.Z. and subsequently set off J.C.’s assigned claim could not be accepted. Given the invalid purchase contract, there were no legal grounds on which the claims could be lawfully set off against each other.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicant, Mr Remzi Balcı, is a Turkish national who was born in 1934 and lives in Samsun. He had been granted legal aid and was represented before the Court by Mr C. Balcı, a lawyer practising in Samsun. The Turkish Government (“the Government”) did not designate an Agent for the Convention proceedings.

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

In 1971 the applicant bought a plot of arable land from a fellow villager. The seller had held the land in his possession for over thirty years without a title deed. The transaction took place unofficially and the parties did not execute a written sale agreement.

In 1974 the authorities conducted regional cadastral works in the area. As a result, the plot in question was registered in the land register as two separate parcels, numbered 370 and 590. Parcel no. 370 was registered in the name of the applicant as an arable field based on witness statements confirming that he had had taken it over from its previous possessor and had been exploiting it without interruption ever since. Parcel no. 590 however was classified as part of an adjacent forest. As the legislation permitted no private ownership of forest land, this parcel was registered in the name of the Treasury as a State property.

According to the applicant, he was uninformed about this registration and continued to cultivate not only parcel no. 370 but no. 590. He only became aware of the situation in 1983, when the authorities discovered the cultivation and fined him for illegal utilisation of State property.

On 26 December 1983 the applicant initiated civil proceedings before the Samsun Civil Court, requesting parcel no. 590 to be registered in his name. A court-appointed expert conducted an inspection and concluded that parcel no. 590 could not be characterised as forest land.

Agreeing with the expert, the Samsun Civil Court ruled in favour of the applicant on 8 December 1995. The court also established that the applicant had been holding the parcel in his uncontested and uninterrupted possession for long enough to entitle him to claim title under the applicable legislation. Accordingly, the court recognised him as the lawful owner of the parcel.

On 6 February 1997, however, the Court of Cassation quashed this judgment. It established that older land inventories proved that the disputed parcel was on the outer limits of a neighbouring forest. The court reasoned that many years of intensive cultivation must have removed the natural flora. Despite such a transformation, the court considered that the land should be considered as despoiled forest which had never belonged to the applicant. Accordingly, it directed the civil court to re-examine the facts of the case and pass judgment accordingly.

On 13 March 1998 the Samsun Civil Court adhered to this ruling. It held that the revision of the local plan served the general interest given that parcel no. 590 was a forest area and that the applicant had illegally occupied it by expanding the boundaries of his lawfully possessed land, i.e. plot no. 370.

On 8 July 1998 the Court of Cassation dismissed the applicant’s appeal.

On 29 May 2000 the Treasury sold the plot of land in question to a third party as an arable field.

Article 713 of the Turkish Civil Code provides that, persons who hold in their possession an unregistered immovable property without interruption or legal challenge for a minimum period of 20 years, are entitled to request its registration in their names.