Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fairness, Art. 8 and P1-1

The applicant was born in 1959 and lives in Somlóvásárhely, Hungary.

On 6 May 1993 the applicant's wife requested the Ajka District Court to hold a preliminary hearing with a view to instituting divorce proceedings. In turn, on 7 July 1993 the applicant brought an action before the District Court claiming maintenance for the couple's son, who was at the time in the applicant's care. The District Court held hearings on the maintenance claim on 13 September and 3 November 1993. On the latter date the applicant's wife formally filed for divorce. The divorce proceedings were subsequently joined to the claim for maintenance.

In the joined proceedings, hearings took place on 27 April, 17 June, 16 September and 31 October 1994, 3 February and 5 April 1995.

On the latter date the District Court pronounced, in a partial decision, the couple's divorce. In line with the parties' agreement, it granted the mother custody of their son. The court ordered the applicant to pay maintenance, regulated his right of access to the boy and ordered the parties to share the use of their flat which was in common ownership. The court relied on the testimonies of numerous witnesses, including a social worker, the applicant's two step-children born out of the mother's previous marriage, and the couple's son.

On the applicant's appeal of 12 May 1995, the Veszprém County Regional Court held a hearing on 26 September 1995. At a hearing on 10 October 1995 the Regional Court allowed the applicant's appeal and amended the District Court's decision in the part concerning the amount of maintenance and the details of his access rights.

On 13 December 1995 the proceedings were resumed before the District Court in respect of the division of the matrimonial property. A hearing was held on 13 December 1995.

A further hearing took place on 21 February 1996. On the latter date the District Court decided to obtain various expert opinions.

On 31 May and 23 July 1996, respectively, property and valuation experts submitted their opinions.

At a hearing on 18 October 1996 the District Court appointed a motor-vehicle expert to prepare an opinion. On 12 December 1996 the expert was urged to submit his opinion. On 31 December 1996 the expert informed the court that the applicant could not be located at the address notified to him. On 17 February 1997 the expert was requested to submit an opinion as soon as possible. On 27 February 1997 the expert submitted his opinion.

Further hearings were held on 28 April, 12 May and 17 November 1997. Meanwhile, on 6 June 1997 the applicant requested further expert evidence to be taken. Although it experienced difficulties in finding an expert jeweller, the District Court finally appointed one on 27 February 1998 and requested the parties to contact him. On 30 July 1998 the expert submitted his opinion.

On 28 September 1998 an expert psychologist submitted his opinion. A hearing scheduled for 28 October 1998 was adjourned at the applicant's request.

The next hearing took place on 20 January 1999. The District Court ordered the property expert to complete his opinion of 31 May 1996, taking into account any possible changes which might have occurred in the meantime. On 19 March 1999 the District Court requested the expert to proceed as a matter of urgency. On 24 March 1999 the expert submitted his opinion, which was based on an on-site inspection of the property.

Further hearings took place on 27 September and 25 October 1999. On the latter date both the applicant and his representative failed to appear before the court. Meanwhile, the District Court made enquiries with the parties' bank as regards the mortgage situation of their flat. On 29 October 1999 the court requested the parties to waive their rights to secrecy in respect of their bank details. The waivers were sent to the bank on 17 November 1999. On 28 December 1999 the District Court made a further enquiry with the bank as regards payments transferred from the parties' bank account to cover housing expenses. On 24 January 2000 the District Court ordered the applicant to submit his waiver in the form required by the bank. The bank submitted the requested banking details on 27 March 2000.

At the hearings of April and 22 May 2000 several witnesses were heard on the use of the parties' flat. On the latter date the District Court carried out an inspection of the flat.

On 13 December 2000 the District Court ruled on the division of the matrimonial property. On 20 and 27 December 2000, respectively, the applicant and the defendant appealed.

The Veszprém County Regional Court held hearings on 20 February, 1 and 20 March 2001. During this period the parties were involved in negotiations aimed at reaching an agreement on the sale of their flat. On the parties' joint request of 28 March 2001, the Regional Court discontinued the proceedings on 3 April 2001 and annulled the decision of 13 December 2000.


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Lyuben Stoyanov Kemerov, is a Bulgarian national who was born in 1945 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv.

On 31 March 1996 the applicant, who had consumed alcohol, listened to loud music in his flat, disturbing his neighbours. At about 3.30 a.m., a neighbour asked him to cease the disturbance. The applicant apparently lowered the sound only for a while. As the disturbance continued, between 4.15 a.m. and 6 a.m. the neighbour made several calls to the police seeking assistance.

Police officers P. and M. were dispatched to the address. From their statements it appears that they made two visits, the second one being at about 6 a.m.

At about 6 a.m., having heard loud music emanating from the applicant's apartment, the police officers rang the doorbell and shouted “Police! Open the door!”. In reply, the applicant required to see their identity documents and a warrant authorising their entry into his apartment. The police officers insisted to be let in. According to the applicant, they started hitting the door. Fearing that they might break in, the applicant eventually opened.

According to the applicant, upon entering the police officers battered him violently.

According to the police officers, the applicant threatened them with a knife which necessitated the use of physical force against him.

The police officers eventually handcuffed the applicant and took him to the police station. His name was entered in the detained persons' register, with a note that he had “assaulted the patrol with a knife and resisted [orders]”.

He was released an hour and a half later, at about 7.30 a.m. on 31 March 1996.

Later on 31 March 1996 the applicant had X-ray photographs of his body taken which confirmed that he did not have fractures.

Police officers P. and M. drew up reports on offences punishable in summary administrative proceedings (акт за административно нарушение), dated 31 March 1996 and duly registered in the police reports register. According to the reports, a knife had been seized from the applicant at about 6 a.m. that day and the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed violations of the relevant regulations.

According to the applicant, he never received copies of the above mentioned reports. In his view, it was possible that some of the documents allegedly documenting an assault with a knife might have been created later and backdated.

On 2 April 1996 the applicant was examined by a forensic medical doctor who found numerous contusions, haematomas and scars on the applicant's head, chest, abdomen area and on his limbs. There were at least ten bruises on the applicant's head, two on his back, more on his arms and legs. The medical certificate stated, inter alia, that all injuries had been inflicted by a blunt object. It was possible that they were inflicted in the manner and at the time indicated by the applicant.

The applicant was eventually fined by the municipal authorities for causing a night disturbance.

On 6 April 1996 the applicant submitted a complaint to the Regional Military Prosecutor's Office (окръжна военна прокуратура) stating that he had been ill-treated by police officers. He enclosed a medical certificate. A preliminary inquiry was opened.

On 4 July 1996 a prosecutor instructed local police in Plovdiv to investigate the complaints.

On 22 July 1996 police officers P. and M. submitted written statements to their superior. They maintained that the applicant had assaulted them with a kitchen knife. Sergeant P. stated that he had hit the applicant several times in his chest and then used a special technique to retrieve the knife as the applicant had been trying to stab him in his right hand.

On 23 July 1996 the police reported to the prosecutor, summarising the police officers' version of the facts. He added that in the absence of witnesses, it was not possible to draw up reports on offences punishable in summary administrative proceedings under the Hooliganism Act.

It appears that the prosecutor did not undertake any other steps in the following months.

On 24 February 1997 the applicant complained of the delay to the higher prosecutor.

On 17 April 1997 the applicant's lawyer requested the examination of three witnesses – the applicant's brother who had taken him from the police station upon his release and two of his neighbours.

On 15 May 1997 the applicant and the witnesses were heard by a police officer and given the opportunity to submit written statements. One of the applicant's neighbours stated that in the early morning of 31 March 1996 he had heard someone shouting for help and had seen, at the opened door of the applicant's apartment, a man delivering blows to someone inside. He had then seen the applicant being escorted by two men into a police car. Another witness gave evidence from which it transpired that the applicant's front door had not been forced by the police, as initially maintained by him.

On 11 June 1998 the applicant's lawyer complained of the delay in the inquiry.

On 15 July 1998 the competent prosecutor at the Regional Military Prosecutor's Office terminated the inquiry and refused to institute criminal proceedings against the police officers. He summarised the facts as presented by the police officers involved and then stated the blows administered on the applicant during the incident were justified under the relevant provisions which allowed the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order.

A copy of the decision was sent to the applicant. The accompanying letter advised the applicant that he had the right to appeal to the Appellate Military Prosecutor's Office (военно-апелативна прокуратура) in Sofia. The applicant did not appeal.

In the meantime, on 1 July 1998 the applicant submitted an application to the former European Commission of Human Rights alleging, inter alia, violations of Articles 3, 8 and 13 of the Convention in relation to the events of 31 March 1996.

By final decision of 2 September 2004 the Court, to which the competence to examine the application was transferred by virtue of Article 5 § 2 of Protocol No. 11 to the Convention, declared the application inadmissible for failure to exhaust domestic remedies, since the applicant had failed to appeal against the regional prosecutors' decision of 15 July 1998 (see Kemerov v. Bulgaria (dec.), no. 44041/98, 2 September 2004).

On 27 September 2004 the applicant filed with the Appellate Military Prosecutor's Office an appeal against the decision of 15 July 1998 of the Regional Military Prosecutor's Office.

On 15 November 2004 the Appellate Military Prosecutor's Office dismissed the appeal, upholding the decision of 15 July 1998.

The applicant appealed to the Supreme Cassation Prosecutor's Office.

On 25 February 2005 a prosecutor from that service dismissed the appeal as the prosecution of the police officers concerned was time-barred.

He commented on the substance of the complaints, noting that the applicant's allegation that the police had forced his front door had been contradicted by witness evidence and also finding that the applicant's injuries corresponded to the police officers' version of the events. The prosecutor also found that in any event the prosecution of the police officers concerned was time-barred, which excluded any possibility of pursuing the matter.

Under Article 80 § 1 read in conjunction with Articles 128-131 of the Penal Code, as in force at the relevant time, the prosecution of a police officer accused of ill-treatment which had not resulted in serious permanent or life-threatening injury was precluded after the expiry of three or five years, depending on whether the ill-treatment could be characterised as having affected the victim's health or had only caused pain.


On 15 November 1987 at approximately 8 p.m. the officers of the Vescovato brigade of gendarmerie received a telephone call from Mrs R. informing them that an attack had just been carried out at her and her husband's farm at Querciolo, Sorbo Ocagnano (Haute-Corse). The perpetrator of the attack had been fatally wounded.

When the officers arrived at the scene of the incident, they found the body of a man, identified at the morgue as being that of Jean-Baptiste Acquaviva, the applicants' son and brother. The deceased had been a militant nationalist on the run, whose photograph had appeared on police posters offering a reward for information leading to his arrest.

R. was immediately placed in police custody, but was released at 1.30 a.m. on 16 November 1987. His wife was also questioned. A post-mortem report was drawn up on 17 November 1987. The following day the Bastia public prosecutor sought ballistic and toxicological reports, which were submitted on 4 December 1987 and 4 January 1988.

In two communiqués issued the day after the killing, the Corsican National Liberation Front (FLNC) - an organisation that had been dissolved in January 1983 - described the deceased as a "brother in arms" and a "martyr for the nationalist cause", deliberately assassinated by R.

On 18 November 1987 Mr and Mrs R. left Corsica under false identities as the local police commander (capitaine de gendarmerie) had advised them that he could not guarantee their safety. The furniture disappeared from the R.s' farm on 20 November.

On 3 December 1987 the police investigation concluded that there was sufficient serious and consistent evidence to justify charging R. with fatal wounding, but that he had apparently been acting in self-defence.

On 11 December 1987 the deceased's parents laid a complaint against R. for intentional homicide and filed an application to join the proceedings as civil parties. They wished to discover the circumstances of their son's death and requested a reconstruction of the events; they did not seek damages. On 14 January 1988 they lodged security for costs of 5,000 French francs (FRF) fixed by an order of 14 December 1987.

On 19 December 1987 the R.s' farm, which had been under police surveillance, was partly destroyed by a bomb attack. The investigation opened into this incident was closed on 2 January 1990 under the amnesty of 10 July 1989.

On 25 January 1988 an investigation was opened into an offence of fatal wounding by persons unknown. On the same day Judge Catalano was assigned to the investigation and the prosecutor's office requested an inquiry and a reconstruction of the events.

The applicants were interviewed on 8 April 1988. On 13 June 1988 the prosecutor's office called for evidence to be taken from the doctor who had signed the death certificate and the senior officer of the gendarmerie. These two persons were questioned on 25 August 1988.

The civil parties were summoned to appear on 4 July 1988, but did not do so because their lawyer was unable to be present.

On 2 September 1988 the investigating judge sought the opinion of the doctors who had carried out the post-mortem examination. They submitted their report on 23 September. On 20 September evidence was taken from the police officers concerned, as witnesses.

On 27 September 1988 the R.s' farm - which had been purchased in Spring 1988 by the Ministry of Agriculture - was placed under seal.

On 13 October 1988 the applicants were interviewed on the subject of the medical experts' report. They maintained their complaint and continued to stress the need for a reconstruction.

On 20 October 1988 R. was summoned to give evidence, but he requested the judge to excuse him and did not appear on 3 November for the interview.

In additional submissions of 26 October 1988 the public prosecutor called for fresh expert reports, in particular a ballistic report. One month later the civil parties also sought further investigative measures.

On 10 January 1989 the investigating judge visited Orly Airport, near Paris, to question R. as a "witness assisted by a lawyer" (temoin assisté) and his wife as an ordinary witness.

On 11 January 1989 the judge rejected the applications for investigative measures submitted by the prosecutor's office and civil parties. The prosecutor's office and the applicants challenged his decision.

Mr Catalano, who had been appointed to another post, was replaced on 12 January 1989 by Judge Sievers.

The Bastia public prosecutor and the applicants appealed to the Indictment Division of the Bastia Court of Appeal, which ruled, in a preliminary decision of 22 February 1989, that the refusal to carry out the investigative measures requested adversely affected the civil parties' rights.

In accordance with the principal public prosecutor's submissions, the Indictment Division quashed Judge Catalano's decision and ordered further investigative measures including a reconstruction of the events at the scene of the incident in the presence of R. and two ballistic experts. It assigned the task of carrying out the reconstruction to Judge Sievers and ordered that the costs of the expert reports be advanced out of public funds.

On 31 May 1989 the prosecutor's office lodged further submissions calling for Mr and Mrs R. to be brought to the scene of the incident for the purposes of the reconstruction. R. was interviewed as a "witness assisted by a lawyer" in Paris on 27 June 1989.

On 10 October 1989 the gendarmerie found that the seals put on the farm had been broken and that an item of evidence, the front door, which bore bullet marks, had been stolen. In a report submitted ten days later the senior police officer indicated that this had made it impossible to carry out the reconstruction under satisfactory conditions, in view in particular of the fact that there was no furniture in the house.

The investigating judge visited the scene on 23 October 1989. He questioned R. in Paris on 26 October.

On 31 October 1989 the Bastia public prosecutor's office called for the opening of an investigation in respect of the destruction of the seals and the theft of the door by persons unknown. This investigation was subsequently terminated by a decision finding that there was no case to answer.

On 7 November 1989 the investigating judge ordered an inquiry into the removal of the furniture and the disappearance of the door. He visited the site on 9 November and interviewed the applicants the following day in connection with the preparations for the reconstruction.

In the course of this inquiry the judge questioned the police officers concerned on 15 November 1989, Mr and Mrs R.'s son on 8 December and on 18 December the prosecutor who had been called out on the night of the killing. On 20 December he gave instructions for evidence to be taken.

The former public prosecutor of Bastia told him on 15 January 1990 that it had been planned from the beginning of the investigation to organise a reconstruction.

The reconstruction, which had been scheduled for 16 January 1990 and organised with extensive security precautions, did not take place because of the absence of R. and the police officer who had conducted the inquiry and the applicants' refusal to attend in such circumstances.

The following day the applicants requested that coercive measures be taken in regard to Mr and Mrs R.

On 19 January 1990 the prosecutor's office called for the transmission of the documents to the Indictment Division for a ruling on the new applications and a decision on the further procedure.

On 29 January 1990 Judge Sievers forwarded the file to the Indictment Division, which, on 7 March 1990, ordered that it be communicated to the principal public prosecutor. On 21 May 1990 the latter called for a reconstruction of the events.

On 12 June 1990 the applicants laid a complaint concerning the destruction of the seals put on the R.s' house and the theft of the front door; they also applied to join the proceedings as civil parties. This complaint for theft, concealment and destruction of evidence was declared inadmissible on technical grounds.

On 13 June 1990 the Indictment Division of the Bastia Court of Appeal held a hearing. At the opening of the hearing the applicants protested at the presence in the courtroom of the lawyers of R., a "witness assisted by a lawyer". By an interlocutory decision of the same day, the court allowed the objection and reserved judgment on the remaining issues until 20 June.

R. appealed on points of law to the Court of Cassation and requested an expedited hearing of his appeal.

The Bastia Indictment Division decided on 20 June 1990 to stay the proceedings pending the decision of the Court of Cassation. The same day the President of the Division instructed the investigating judge not to take any new steps until further notice.

On an application by the public prosecutor, and then by the Principal Public Prosecutor, the Indictment Division, by a decision of 27 June 1990, quashed the five investigative measures effected after 29 January 1990.

On 27 November 1990 the Court of Cassation dismissed R.'s appeal, which it declared inadmissible on the ground that his status as a "witness assisted by a lawyer" did not confer on him the standing of party to the proceedings.

The status of "witness assisted by a lawyer" introduced by Law no. 87-1062 of 30 December 1987 was intended to afford persons who are the subject of a complaint laid with a civil party application the same guarantees as those accorded to persons charged (inculpés) or, to use the current terminology, placed under judicial investigation (mises en examen).

On an application by its principal public prosecutor, the Court of Cassation decided on 27 February 1991 to remove jurisdiction from the Bastia Indictment Division. On grounds of public safety it transferred the proceedings instituted against persons unknown for fatal wounding to the Indictment Division of the Versailles Court of Appeal.

That Division examined the case file as communicated by Judge Sievers by his order of 29 January 1990.

On 21 June 1991 it gave a preliminary decision in which it allowed the principal public prosecutor's application and held "that it was not necessary to carry out the reconstruction ordered by the Bastia Indictment Division". The reconstruction could no longer "be effected in satisfactory conditions. In addition the participation of Mr and Mrs R. in such events would entail unacceptable risks in view of the insecurity reigning in the region in question according to police reports".

It annulled all the measures taken with a view to the reconstruction, delegated its President to continue the additional investigative measures decided on 22 February 1989 and ordered that from that point the costs should be borne by the civil parties, who might be required to lodge further security.

By letter of 27 August 1991 the President of the Indictment Division asked the applicants to inform him what steps they wished to have carried out and on 29 October 1991 the Indictment Division communicated the investigation file to the prosecutor's office for its final submissions.

On 30 October 1991 the Versailles prosecutor's office called for an order finding that there was no case to answer. On 19 November 1991 the applicants lodged pleadings seeking a reconstruction of the events.

In a decision of 10 December 1991 the Versailles Indictment Division found that R. had been acting in self-defence and that there was not sufficient evidence to justify charging anyone with the offence that was the subject of the proceedings. It therefore ruled that there was no case to answer.

The applicants lodged an appeal on points of law against this decision. In a judgment of 14 April 1992 their appeal was declared inadmissible by the Criminal Division of the Court of Cassation on the ground that the pleadings had not been lodged with the registry of the Court of Appeal but had been sent directly to the Court of Cassation without using the services of a lawyer with a right of audience before the Court of Cassation. The grounds of appeal had not therefore been validly submitted to the Court of Cassation. The decision was served on the applicants on 1 September 1992.

Article 2 of the Code of Criminal Procedure provides as follows:

"All those who have personally suffered from the damage directly caused by a serious offence (crime), less serious offence (delit) or petty offence (contravention) may bring civil party proceedings (action civile) to seek compensation for such damage.

Discontinuance of such proceedings can neither halt nor stay the criminal proceedings, without prejudice to the cases provided for in paragraph 3 of Article 6 [of the present Code]."

However, in the case of petty offences, only the prosecuting authority may set in motion the criminal proceedings.

Under paragraph 3 of Article 6 of the Code of Criminal Procedure,

"[Criminal proceedings] may, in addition, be discontinued by settlement where express provision is made for this possibility. They may likewise be discontinued in the event of withdrawal of the complaint where the complaint was an essential condition for the proceedings to be brought."

A civil party application (constitution de partie civile), which has the effect of staying the proceedings in the civil courts, may be made at any time to the investigating judge or the indictment division up to the decision concluding the investigation. It may be opposed by the prosecuting authority, by the person placed under investigation or by another civil party, or the investigating judge may, of his own motion, declare it inadmissible by an order which must state reasons and which is open to appeal (Article 87 of the Code of Criminal Procedure).

The decision of the investigation authority allowing a civil party application to join the proceedings does not prejudge that of the trial court as to the admissibility of that application.

The intervention of a civil party may be motivated solely by the wish to support the public prosecution and to ensure that the guilt of the accused is established. For this reason, according to the case-law, a civil party application may be admissible even if no claim for damages is possible. As a civil party, the victim is kept informed of the steps of the investigation, may appeal against decisions which harm his interests and has access to the investigation file under the same conditions as the person placed under investigation.

When an investigation that has been opened on the basis of a civil party complaint is terminated by an order finding that there is no case to answer, any person who was the subject of the complaint may seek damages in the criminal and civil courts and request that criminal proceedings be brought against the civil party for false accusation; the prosecuting authority may also summons the civil party to appear in the criminal court before which the investigation was conducted. If the civil party application is held to have been improper or vexatious, the court may impose a civil fine not exceeding FRF 100,000 (Article 91 of the Code of Criminal Procedure).


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

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in 1975, 1974, 1961 and 1972 respectively. They all live in the town of Cizre.

In March 1994 Abdulaziz Gasyak, Süleyman Gasyak, Yahya Akman and Ömer Candoruk were killed. The applicants were related to these people as follows: Sabri Gasyak is the brother of Abdulaziz Gasyak; Leyla Gasyak was the wife of Süleyman Gasyak; İsa Akman is the father of Yahya Akman and Hanım Candoruk was the wife of Ömer Candoruk. The application was brought by the applicants on their own behalf and on behalf of the remaining heirs of the four deceased men.

The facts of the case, particularly concerning events which took place on 6 March 1994, are disputed by the parties.

The facts as presented by the applicants are set out in Section B below (paragraphs 9-21). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 22).The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 23-50).

The applicants’ four relatives were working as tradesmen, buying food, tea and tobacco from the area near the Turkish-Iraqi border and selling them in the nearby town of Cizre and the surrounding areas.

On 6 March 1994 the four men were travelling from Cizre to Silopi in a vehicle which was being driven by Ömer Candoruk. They were stopped by gendarmes at a checkpoint approximately five to six kilometres outside the town of Silopi. Two unmarked Renault cars were parked nearby. At that point, a certain Mr A.M., who lived in Cizre and who knew the four men, was travelling from Cizre to Silopi in a minibus and saw the four men arguing with a group of gendarme officers in plain clothes. Abdulhakim Güven and Adem Yakın, who used to be PKK members but who had been working for the gendarmerie since their arrests, were also with the gendarme officers. MM. Güven and Yakın were referred to in the area as “confessors”. The applicants’ relatives were then put into vehicles. They were joined by gendarme officers and the confessors and the cars began driving in the direction of Cizre.

Mr A.M. then saw something being thrown out of one of the vehicles. He stopped and picked it up and realised that it was Ömer Candoruk’s driving licence. The vehicles then turned off the main road and started heading towards Holan village. Mr A.M. did not see the vehicles again.

According to the information the applicants subsequently gathered from a number of villagers living in Holan village, one of their relatives had jumped out of the moving vehicle and tried to run away, but was shot by one of the confessors or the gendarme officers. His body was put in the boot of one of the vehicles.

The three surviving men were then taken to the gendarme station in Bozalan village, which is located approximately seven to eight kilometres from Cizre. Before sunset they were taken in the same vehicles to a place nearby and were shot and killed.

The killing was witnessed by a certain Mrs E.T. and her female friends who were working in a nearby field.

The following day, 7 March 1994, Mr A.M. told the applicants what he had seen and gave them Ömer Candoruk’s driving licence. The applicants then contacted the police and the gendarmerie in Silopi, but were unable to obtain any information from them. The same day Mrs E.T. told the applicants about the fate of their relatives. The applicants then contacted the gendarmerie and informed the offices of the prosecutor and the governor.

On 8 March 1994 gendarmes found the bodies of the four men covered with soil and stones. They had all been shot dead and their heads smashed with stones. An on-site report prepared the same day stated that the killings had probably been carried out by members of the PKK in a revenge attack because the deceased had been village guards. However, the deceased had never agreed to become village guards, contrary to the advice of the gendarmerie.

No other action was taken in the area by the gendarmes. They did not question the applicants or any of the persons present in the vicinity.

Furthermore, no steps were taken by the Cizre prosecutor who, on 5 April 1994, sent the investigation file to the prosecutor at the Diyarbakır State Security Court who had jurisdiction to continue the investigation.

The investigation carried out by the prosecutor in Diyarbakır was limited to the sending of occasional letters to the gendarmerie, asking them to search for the perpetrators. The gendarmerie replied that they had been unable to find the perpetrators despite their searches.

The number plate of the vehicle in which the applicants’ relatives had been travelling on 6 March 1994 was subsequently changed, and the vehicle continued to be used by confessors and other plain clothes officials in Cizre.

The authorities unsuccessfully searched for the two confessors, MM. Güven and Yakın. The requests by the prosecutor to be informed of their whereabouts were ignored by the gendarmerie for a long time. Mr Güven was subsequently found and questioned by a police officer. Although the applicants were able to find Mr Yakın’s address and gave it to the authorities, no steps were taken to question him. During the eventual trial of the two confessors for homicide (see paragraphs 36-45 below), neither of them ever appeared before the Şırnak Assize Court (hereafter “the trial court”) to give evidence.

The Government’s submissions were based on the documents drawn up by the national authorities in the course of the investigation, the trial and the compensation proceedings, which documents are summarised below.

On 8 March 1994 the bodies of the four men were recovered by gendarmes and identified by villagers who were present in the area at the time. The gendarmes found five Kalashnikov-type spent bullet cases around the bodies. It was concluded in an on-site report prepared by the gendarmes that the four men had probably been killed by members of the PKK in order to deter other members of their families from becoming village guards. It was established that the four men had been killed where they were found.

The same day the bodies were examined in situ by a doctor who concluded that the four men had been killed by gunshot wounds. The doctor, who observed a large number of bullet entry and exit holes on the bodies, deemed it unnecessary to conduct a full autopsy; the cause of death was established and that was sufficient. A bullet which had entered and exited the body of Abdulaziz Gasyak was secured for further examination. The Cizre prosecutor was also present at the time of the doctor’s examination.

Also that day the Cizre prosecutor decided that his office lacked jurisdiction to investigate the killings “perpetrated by members of the illegal organisation” and sent the file to the Diyarbakır State Security Court prosecutor’s office (“the Diyarbakır prosecutor”).

The Diyarbakır prosecutor instructed the gendarmerie on 18 April 1994 to search for the perpetrators of the killings.

According to a ballistic examination, the five spent bullet cases had been fired by two separate weapons.

On a number of occasions between 1 September 1995 and 22 March 2002, the gendarmerie reported to the Diyarbakır prosecutor that they had been “unable to find the perpetrators of the killings which, in all likelihood, had been carried out by members of the PKK”. On 16 February 2002 a number of soldiers had visited the place where the bodies had been found in 1994, but they had been unable to establish the identities of the perpetrators.

On 11 July 2002 a lawyer representing the applicants wrote to the Diyarbakır prosecutor and asked him to investigate the killings. The lawyer pointed to the fact that none of the relatives of the deceased men or anyone living in the area where the bodies had been found had been questioned by the authorities. He also informed the prosecutor that Mr A.M. and Mrs E.T had witnessed the incidents.

The applicants, who were questioned by the Diyarbakır prosecutor on 15 July 2002, stated that after the killing of their relatives they had been warned by the security forces not to make any complaints. They also told the prosecutor that no investigating authority had ever questioned them.

The same day Mr A.M. and Mrs E.T were also questioned by the Diyarbakır prosecutor. They gave the prosecutor their eyewitness accounts of the events – which are summarised above (see paragraphs 10-11 and 14-15 above) – leading up to the killing of the four men.

Also that day the Diyarbakır prosecutor decided that he lacked jurisdiction to investigate the killings because, although it had been stated by his opposite number in Cizre in 1994 that the killings had been carried out by members of the PKK (see paragraph 25 above), it was now being alleged by the applicants that their relatives had been killed on account of their refusals to become village guards. The two confessors and “their accomplices whose identities could not be determined” were referred to in this document as the “accused”. The Diyarbakır prosecutor then forwarded the file to the office of the Cizre prosecutor.

The applicants and the two eyewitnesses, Mr A.M. and Mrs E.T, were questioned by the Cizre prosecutor on various dates in December 2002 and January and May 2003. They repeated their respective complaints and eyewitness accounts of the events. Mr A.M. also told the prosecutor that he would be willing to identify the two confessors in an identity parade.

On 17 March 2003 Abdulhakim Güven, one of the two confessors allegedly involved in the killings, was questioned by a police officer. He denied the accusations against him.

The other confessor, Adem Yakın, was questioned by the Cizre prosecutor on 15 July 2003. He also denied the accusations and stated that he had been performing his military service at the material time.

On 5 August 2003 the Şırnak prosecutor filed an indictment with the Şırnak Assize Court (“the Şırnak court”), charging the two confessors with the offence of multiple homicide.

In the course of its first hearing on 7 August 2003 the Şırnak court sent letters rogatory to the Assize Courts in Diyarbakır and Batman where the two defendants were living, and asked those courts to question the defendants.

On 12 September 2003 the Diyarbakır Assize Court questioned Abdulhakim Güven who disputed the allegations and stated that at the time of the killings he had been in prison.

During a hearing held on 9 October 2003, Mr A.M. and Mrs E.T repeated their eyewitness accounts before the Şırnak court. The same day the Şırnak court issued an arrest warrant for Adem Yakın. It also ordered that Abdulhakim Güven be photographed with a view to showing his photographs to the eyewitnesses.

On 14 November 2003 Adem Yakın was arrested and questioned by the Batman Assize Court pursuant to the letters rogatory mentioned above. He denied the accusations and maintained that he had been performing his military service at the time of the killings. He was released the same day.

On 30 March 2004 the lawyer for the applicants sent a letter to the Şırnak court, requesting permission for his clients to join the proceedings as interveners. This request was accepted on 12 October 2004.

During the subsequent stages of the proceedings it transpired that on 28 February 1994 – that is, some six days before the killings – Abdulhakim Güven had been released from prison for a period of ten days with the permission of the Diyarbakır State Security Court so that he could “help the security forces with their anti-terrorism operations”. In fact, on various dates in 1994 he had been released from prison to help the security forces.

The Şırnak court had to postpone a number of its hearings to wait for the photographs of Abdulhakim Güven.

After having sent a number of reminders, on 27 January 2005 the Şırnak court was finally provided with the photographs of Abdulhakim Güven taken on 17 January 2005. During a hearing held on 29 March 2005, the eyewitness Mr A.M. was shown the photographs but was unable to identify Abdulhakim Güven. Mr A.M. told the Şırnak court that he had last seen Mr Güven more than ten years ago and that at that time Mr Güven had had a long beard; the person in the photograph did not have a beard.

At the same hearing the prosecutor asked the Şırnak court to acquit the defendants. The Şırnak court accepted that request and acquitted the defendants for lack of sufficient evidence. It considered, in particular, that although Mr A.M. had been in a minibus with a number of other persons, he had been the only person to witness the alleged abduction of the four men. In any event, the defendants had been working as informers and helping the security forces. Such informers were not well regarded by the residents of the region and, as such, the testimony of Mr A.M. implicating the confessors in the killings was disregarded. According to the Şırnak court, the fact that Abdulhakim Güven was not in prison at the time of the killings did not prove that he had taken part in them. He had been helping the security forces with their operations and, as such, it was not logical that he would be involved in a killing. The Şırnak court also decided to inform the relevant prosecutor to continue with the search for the perpetrators.

The applicants appealed. In their appeal petition they referred to the obligations under Articles 2 and 13 of the Convention to carry out effective investigations into incidents of killings, and alleged that the investigation into the killing of their relatives had been flawed. They maintained that the eyewitnesses had been consistent throughout the criminal investigation. The confessor Abdulhakim had lied to the investigating authorities when he said that he had been in prison on 6 March 1994 (paragraph 38 above). The Şırnak court had contented itself with showing the photographs of one of the defendants to an eyewitness and had not summoned the defendants to the trial. Furthermore, the investigating authorities had failed to follow up leads concerning the involvement of the gendarmerie and the security services and had only prosecuted the two confessors. They argued that the trial court had also failed to ensure an identity parade so that the eyewitnesses could have seen and identified the two confessors.

On 14 November 2006 the Court of Cassation rejected the appeal and upheld the two defendants’ acquittals.

In their letter of 20 August 2009 the applicants informed the Court that the same two confessors (that is, Mr Abdulhakim Güven and Mr Adem Yakın), a high-ranking army official and three intelligence officers working for the gendarmerie had been indicted in July 2009 and put on trial for the killing of their four relatives as well as the killing of a number of other persons at around the same time.

On 25 July 2005 the second to fourth applicants, together with a number of other heirs of their deceased relatives, submitted petitions to the Şırnak Governor’s office and claimed compensation under the provisions of the Law on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism (Law no. 5233 of 27 July 2004). In their petitions the three applicants repeated their allegations of State involvement in the killings.

On 10 July 2006 the Şırnak Governor’s office partially accepted the compensation claims made by the three applicants in respect of the killings of their relatives “by members of the PKK”. The second applicant Leyla Gasyak was awarded approximately 2,500 euros (EUR) in respect of the killing of her husband Süleyman Gasyak. The third applicant İsa Akman was awarded approximately EUR 5,000 in respect of the killing of his son Yahya Akman. The fourth applicant Hanım Candoruk was awarded approximately EUR 2,500 in respect of the killing of her husband Ömer Candoruk. Other heirs of these three deceased men were also awarded various sums of money.


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

The first applicant was born in 1987, and is the son of the second applicant, who was born in 1966. They live in Chişinău. The first applicant was 17 years old at the time of the events giving rise to the present application. According to the second applicant, he has an intellectual impairment and has been medically supervised by a psychiatrist since childhood. In view of his condition, he received his schooling at home.

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

According to police records, the first applicant was arrested by police officers at 10 a.m. on 24 October 2004 after they were called to a private apartment building where the applicant had already been apprehended by some of the residents.

According to the applicants, he had been taken to the building forcibly by two persons of his acquaintance who had accosted him in the street some hours earlier and assaulted him. Their intention had been to push him from the roof of the building, but their presence had been detected by three of the residents. Believing that there was a robbery in progress, these men seized the first applicant and beat him. He had already sustained some injuries when the police arrived. The applicants maintained that he received a further beating from the police.

According to the Government, at the time of his arrest the first applicant was already under police suspicion of having committed a number of thefts. An ordinance had been issued against him charging him under Article 186(2) of the Criminal Code. As he had failed to present himself to the police to be informed of the charge, an ordinance to search for him was issued by a prosecutor on 22 October 2004. On the morning of 24 October the first applicant was caught in the act of theft inside an apartment building. As for his injuries, the Government speculated that these could have been caused by the persons who apprehended him, or may have been self-inflicted when the applicant had tried to conceal himself in a ventilation duct.

The applicants alleged that following his arrival at Ciocana police station, the first applicant was punched by police officers and beaten with rubber truncheons in an attempt to make him confess to a number of thefts. He was repeatedly sworn at and refused food, drink and access to the toilet. No medical treatment was provided for his injuries.

The second applicant stated that she came to the police station that same day to visit him and to give him food and clothes, but was not permitted to see him. The applicants maintained that the following day, 25 October, the first applicant was taken by the police to a marketplace for certain procedural acts. No lawyer was present. The applicant's other son witnessed this, and noted his brother's visible injuries. That afternoon, between 3 p.m. and 5.30 p.m., the first applicant was questioned by police officers in the presence of a lawyer as well as of the second applicant. During the interrogation, the first applicant complained of pain in his head and of strong nausea. It appeared to the second applicant that he had been badly beaten, and he was hungry. Despite his complaints, he was required to answer the questions put to him and was refused access to the toilet. After the interrogation he was returned to his cell, having received no medical assistance.

On the morning of 27 October 2004, the second applicant returned to the police station, expecting that her son would be released by 10 a.m., which marked the end of the 72-hour period during which he could be detained without a court order. She was denied access to the building. The first applicant was again taken to the marketplace for undisclosed purposes. He was brought back at 3.20 p.m. The second applicant, assisted by three lawyers from the Helsinki Committee for Human Rights in Moldova, requested the first applicant's release, which was initially refused. According to police records, he was eventually released at 4.30 p.m. that day.

The day after his release, the first applicant underwent a medical examination. This recorded a bruise covered with a red-brown crust measuring 2x1 centimetres on the right side of his head, and an adjacent one measuring 3x2 centimetres. A similar bruise measuring 2x0.7 centimetres was found in his right parietal region. Multiple oval bruises were found on his right, central and left lumbar region, covered by a brown crust and each measuring 7x0.8 centimetres. The doctor noted the first applicant's explanation of what happened to him (see paragraphs 8 and 10 above) and concluded that this was consistent with the injuries recorded. The applicant attended a hospital for treatment for eight days.

The second applicant made several written complaints to the authorities regarding the events set out above. On 26 October 2004 she complained to the Prosecutor General's Office and to the investigating judge of the ill-treatment of her son by the police. She referred to his intellectual disability and to the fact that he was a minor. On 5 November 2004 she lodged a complaint with the investigating judge and described the events of 27 October 2004. She referred, inter alia, to Articles 165 (1) and 166 (4) of the Code of Criminal Procedure (see below) and asked that those responsible for abusing her son be punished. On 9 November 2004 the second applicant complained to the Prosecutor General's Office that her apartment had been searched the previous day by the police, who had refused to identify themselves or show a search warrant. She requested that those responsible be identified and punished.

All of these complaints were investigated by prosecutor S. of the Ciocana prosecutor's office. He interviewed the applicants, other family members, the lawyer who attended the interrogation on 25 October, the applicants' neighbours, and the police officers involved. By a letter of 13 December 2004 the prosecutor informed the second applicant that he had decided not to initiate a criminal investigation since there was no evidence that the police had committed a crime. He added that “in view of the irregularities that have been allowed, a note was sent to the Ciocana police station”.

On 28 December 2004 the second applicant challenged the prosecutor's decision before the investigating judge. In her complaint, she ; that she had been refused access to him; that he had been detained for more than 72 hours contrary to the law; and that an unlawful search had taken place at the applicants' apartment on 8 November 2004. She criticised the prosecutor's answer as very general. Although he mentioned that the police had committed “certain irregularities”, he had not explained what these were and had not provided a copy of the note sent to the Ciocana police station. Moreover, the prosecutor had not sent a reasoned decision, as required by law. The complaint referred to both the substantive and procedural obligations of the authorities under the Convention in respect of the first applicant's ill-treatment and the obligation to respect the inviolability of their home.

On 6 January 2005 the investigating judge of the Ciocana District Court rejected the complaint as unfounded. He found that the first applicant had been accused of a number of thefts and that all the investigative acts had been carried out within the framework of lawfully conducted criminal proceedings. Since the first applicant had failed to appear before the investigator after several summonses had been sent to him, it had been necessary to be compel his attendance at the police station. All procedural acts that had required authorisation had been properly authorised. Moreover, the prosecutor had fully and objectively verified the complaints concerning ill-treatment and had found no confirmation of the allegations.

That decision was final. It was sent to the second applicant on 21 January 2005 and reached her on 27 January 2005.

The relevant domestic law has been set out in Mancevschi v. Moldova (no. 33066/04, § 26, 7 October 2008).

In addition, the relevant provisions of the Code of Criminal Procedure read as follows at the material time:

“1. Short-time arrest is the deprivation of liberty for a short period, but not exceeding 72 hours, in accordance with the law. ...”

... 4. Detention of a person in accordance with the present Article cannot exceed 72 hours from the moment when the deprivation of liberty started.”

The European Committee for the Prevention of Torture has visited Moldova several times, and has inspected Ciocana police station. The following extract, taken from the report of the visit of 27-31 July 2009, is relevant to the present case:

“29. The right of persons in police custody to have access to a doctor (including to one of their own choice), is still not expressly guaranteed by law. In the report on the 2007 visit, the CPT considered that the form of words in Section 64, paragraph 2, sub-paragraph 15 of the CCP (i.e. the right “to submit requests, including for independent medical assistance”) fell short of meeting the Committee's long-standing recommendation in this respect. Many persons who were in police custody in the context of the April 2009 events complained that, despite repeated requests for independent medical assistance, they had been refused such assistance. In some cases, police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned. Further, it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it. Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill-treatment, but it may also have serious repercussions on the health of persons in police custody. Clearly, access to an independent doctor should not be left to the discretion of police officers.”


Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1971 and lives in Slavyanovka village, Kaliningrad region.

On 6 April 2001 the Gusevskiy Town Court of the Kaliningrad Region convicted the applicant of theft, robbery and forgery and sentenced him to seven years and six months' imprisonment. This judgment was upheld by the Kaliningrad Regional Court on 5 June 2001. The courts found, inter alia, that the applicant had paid for a car, purchased from Mr O., with counterfeit United States dollars. The court further indicated that Mr O. might bring civil proceedings against the applicant.

In June 2001 Mr O. lodged a civil claim against the applicant, seeking to recover his car from the applicant. It was received by the Gusevskiy Town Court on 19 June 2001.

On 20 June 2001 Judge G. of the Gusevskiy Town Court forwarded a copy of the statement of claim to the administration of the detention centre where the applicant was being detained (remand prison IZ-39/1). In a cover letter, the judge instructed the administration to hand the statement of claim to the applicant and obtain his written observations in reply by 11 July 2001.

According to the Government, on 21 June 2001 the applicant was transferred to correctional colony OM-216/13 where he was to serve his sentence. That colony was situated in Slavyanovka village, Kaliningrad region. The documents sent by Judge G. to the applicant were forwarded to his new address in that colony. The colony received them on 13 July 2001.

On 11 July 2001, the Gusevskiy Town Court examined the civil claim in the applicant's absence. On the same day the Town Court, by a default judgment, ordered the applicant to return the car to Mr O. The court indicated, inter alia, that the defendant (the applicant) had been properly notified of the date of the hearing but had failed to appear. Mr O. was present and made oral submissions to the court.

The applicant alleged that he had been notified of the hearing only on 16 July 2001. The following day he had approached the Town Court seeking the reopening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence. The applicant had also requested legal aid and insisted on his personal presence at the hearing. On 19 July 2001 his letters were dispatched to the Town Court by the administration of the correctional colony. They were received by the court on 25 July 2001.

On 17 August 2001 the court set a date for hearing the applicant's request and informed the applicant thereof. The Government maintained that the notification had been received by the applicant on 28 August 2001.

On 31 August 2001 the applicant wrote a letter to the Town Court asking them to examine the case in his presence and provide him with a lawyer. That letter was dispatched to the court by the head of the correctional colony. His cover-letter was dated 4 September 2001; however, according to the postal stamp, the applicant's letter was actually posted on 7 September 2001.

On 6 September 2001 the hearing took place in the applicant's absence. Mr. O was present and made oral submissions. The applicant alleged that he had been unable to attend the hearing for want of a court's “conveyance request” (заявка на этапирование) ordering the correctional colony administration to escort him to the court.

By a decision of 6 September 2001 the Gusevskiy District Court refused to re-examine the case. The court found that the applicant had not presented any new evidence that might affect the court's findings of 11 July 2001. The applicant's argument that he had not been properly notified of the hearing and his request for legal aid were left open in the court's decision. The next day, that decision was sent to the applicant.

Following the Town Court's refusal to reopen the proceedings, the applicant appealed to the Regional Court, complaining about the first-instance court's decisions of 11 July and 6 September 2001. He insisted that his personal presence at the hearing of 11 July 2001 had been necessary to prove that the deal with Mr. O.'s car was legal and valid, and that the proceedings should therefore be reopened. He also asked the Regional Court to order his conveyance from the correctional colony in order to take part in the hearing.

On 9 October 2001 Judge G. informed the applicant of the date of the appeal hearing, by way of a simple notice. The judge indicated that the applicant's personal presence at the hearing was not mandatory, and that bringing him to the court hearing was “inopportune”.

On 10 October 2001 the Kaliningrad Regional Court examined the appeal in absentia and upheld the judgment of 11 July and the decision of 6 September 2001. The court indicated that, under Article 213-11, proceedings ending with a default judgment should only be reopened if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence that might affect the conclusions of the default judgment. The court further indicated that the default judgment of 11 July 2001 had been fully based on the courts' findings in the criminal case against the applicant. Lastly, the Regional Court established that the applicant's submissions about the circumstances of the deal with the car would not have had any impact on the findings of the default judgment. In conclusion the court stated as follows:

“The argument that [the applicant's] absence in court was excusable because he had been unable to inform the court in a timely fashion of the valid reasons for his absence cannot be accepted as a sole ground for quashing the judgment since the default judgment may only be quashed if both of the above-mentioned conditions have been met. Furthermore, [the applicant] does not explain why he was not able to inform the court that he was serving a prison sentence.”

As a consequence, the Regional Court dismissed the appeal and upheld the default judgment.

Parties to civil proceedings could appear before a court in person or act through a representative (Article 43 of the Code of Civil Procedure in force until 31 January 2003 (“the old CCP”).

Article 106 of the old CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a telephone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by post or by courier and served on the person who was a party to the case. The party was to sign the second copy of a summons which was to be returned to the court. If a summons could not be served on a party, it was to be served on an adult family member who lived with the party. If a party was absent, the person who delivered the summons was to note on the second copy of the summons where the party could be found (Article 109).

Article 144 required that civil cases be heard in a court session with mandatory notification of the case to all parties. Article 151 provided that court sessions started with the court secretary informing the judge of the parties who had received summons but had failed to appear. The secretary had to inform the judge of the reasons for their absence. Pursuant to Article 157, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the hearing was to be adjourned.

Article 213-1 provided that if a defendant was duly notified of the hearing but failed to appear, the court might proceed with the case, provided that the plaintiff did not object. Article 213-6 provided that a default judgment could be challenged either by lodging a request for the reopening of the case with the first-instance court, or by appealing directly to the court of appeal. Under Article 213-9, a decision of the first-instance court not to reopen the case was subject to an appeal as well. Under Article 213-11, the reopening of a case was possible if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence which might have affected the outcome of the case.

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigation unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for convicted persons to take part in civil proceedings, whether as plaintiffs or defendants.

The USSR Advocates Act (Law of 30 November 1979), together with the RSFSR Rules on Advocates (Law of 20 November 1980), in force until 1 July 2002, provided that free legal assistance in civil cases could be provided to certain categories of litigants and for certain categories of disputes such as labour disputes, disputes concerning disability pensions, work-related accidents, etc. (sections 11 and 22 respectively). Disputes involving prisoners similar to the one at the heart of the present case were not mentioned amongst them. However, the law stipulated that free legal assistance could be provided for litigants who had no means to pay for it, on the initiative of the advocate's office, the investigator or the court (section 11(3) of the USSR Advocates Act). If free legal assistance was granted by the court, the lawyers' fees had to be paid by the State.


Violation of Article 6 - Right to a fair trial

The applicants were born in 1923, 1948 and 1952 respectively and live in Istanbul.

The first applicant is the mother and the remaining two applicants are the sister and brother of Ms Nilgün Hasefe, who was employed by Sabancı Holdings in Istanbul. On 9 January 1996 a number of armed persons raided the Holdings' premises and killed Nilgün Hasefe and two others.

On 11 November 1996 the applicants wrote to the Ministry of the Interior (“the Ministry”) and claimed compensation in accordance with Article 125 of the Constitution on the ground of the State's failure to protect Nilgün Hasefe's right to life. The Ministry rejected the claim on 9 December 1996.

On 14 February 1997 the applicants filed a compensation claim against the Ministry before the Istanbul Administrative Court (hereafter “the Istanbul court”).

On 14 October 1999 the Istanbul court partly allowed their claims for compensation and ordered the Ministry to pay certain sums of compensation to the applicants in respect of pecuniary and non-pecuniary damage.

On 9 March 2000 the applicants asked the Ministry to pay them the amounts of compensation awarded by the Istanbul court.

The Ministry appealed against the decision on 22 March 2000 and asked for an interim injunction suspending the execution of the Istanbul court's decision. In his written submissions the prosecutor at the Supreme Administrative Court agreed with the Ministry and requested that an interim injunction be granted and that the decision of the Istanbul court be quashed. The prosecutor's written submissions were not forwarded to the applicants.

On 18 May 2000 the Supreme Administrative Court granted the injunction sought by the Ministry and on 6 March 2002 it quashed the Istanbul court's decision of 14 October 1999.

The case was remitted to the Istanbul court, which decided on 31 January 2003 to reach the same conclusion as it had in its decision of 14 October 1999. It ordered the Ministry to pay the same amounts of compensation to the applicants as those awarded in its previous decision. The Ministry appealed. The applicants also appealed and argued that the amounts of compensation ordered by the Istanbul court were no longer satisfactory owing to the low rates of interest.

On 14 April 2005 the Supreme Administrative Court's General Council of the Administrative Chambers (Danıştay İdari Dava Daireleri Genel Kurulu) dismissed the Ministry's appeal and accepted the applicants' claims for higher rates of interest in respect of non-pecuniary damage.

A request by the Ministry for rectification of the Istanbul court's decision of 31 January 2003 was rejected on 16 March 2006.

On 31 October 2006 the Istanbul court adopted a decision in line with the decision of the Supreme Administrative Court's General Council of the Administrative Chambers in so far as it concerned the rates of interest for non-pecuniary damage, and awarded compensation to the applicants. On 2 March 2007 the Ministry appealed against the decision. According to the information provided by the Government, the appeal proceedings are still pending.

On 10 December 2007 the Ministry paid the applicants the amounts of compensation awarded by the Istanbul court in its decision of 14 October 1999 and the interest awarded in the same court's decision of 31 October 2006. The total sum paid to the three applicants was 63,080 new Turkish liras (TRY – approximately 37,000 euros (EUR) at the time).

Article 13 of the Code of Administrative Procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. The victim must first apply to the relevant administrative entity and claim compensation for the damage before he or she can lodge a compensation claim in the administrative courts. If this claim is dismissed in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 28 of the Code of Administrative Procedure provides:

“(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities.

(3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities.

(4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.”


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

The applicant was born in 1949 and lives in Izyum.

In May 1994 the applicant initiated a land dispute with her neighbours.

On 29 August 2005 the proceedings, which had taken place before the courts of three levels of jurisdiction, were completed by a final ruling of the Supreme Court allowing the applicant’s claim in part.

In the course of the proceedings, there was one remittal of the case from the appellate court to the first-instance court for fresh consideration. The courts also ordered seven forensic technical expert examinations.

There were several adjournments in the proceedings due to the parties’ failure to appear for hearings.