Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicant, Mr Józef Gidel, is a Polish national, who was born in 1959 and lives in Kraków, Poland.

The applicant runs a car repair shop in Kraków. On 11 March 1993 he sued a certain I.K. and the State Treasury before the Kraków District Court (Sąd Rejonowy), seeking payment for the repair of I.K’s car. On 27 August 1993 the statement of claim was served on I.K who, at that time, lived in Germany.

The first hearing was set down for 21 December 1993 but was later adjourned because the presiding judge was ill. The court held hearings on 26 April, 26 August, 4 November 1994 and on 21 March 1995.

Subsequently, the defendant challenged the impartiality of all the judges of the Kraków District Court. On 8 November 1995 the Kraków Regional Court (Sąd Wojewódzki) dismissed his challenge, finding that it lacked any basis and that the relevant statutory requirements for the disqualification of the judges were not satisfied. His further appeal was dismissed by the Kraków Court of Appeal (Sąd Apelacyjny) on 30 January 1996.

On 23 October, 1 December 1995 and on 13 May 1996 the applicant sent letters to the court asking for a hearing date to be fixed as soon as possible.

On 30 August 1996 the court ordered an expert to prepare a report. However, the expert failed to comply with the court’s order. On 21 October 1996 the court ordered yet another expert to prepare a report within one month. It was submitted to the court on 17 December 1996.

On 28 March 1997 the applicant again asked the court to fix a date for a hearing.

On 12 December 1997 the court held a hearing.

At the hearing held on 3 April 1998 the court ordered that the claim against the State Treasury be examined separately. The next hearing, scheduled for 12 May 1998, was cancelled as there was no courtroom available.

On 1 April 1998 I.K. challenged the impartiality of the presiding judge. On 1 June 1998 a panel of three judges, sitting as the Kraków District Court, dismissed the defendant’s challenge, ruling that it was totally unsubstantiated. The court also imposed a fine on him, holding that the challenge had been made in bad faith. His further appeal was dismissed by the Kraków Regional Court on 10 February 1999.

On 26 June 1998 the Kraków District Court gave an interlocutory judgment. It dismissed the applicant’s claim against the State Treasury on the ground that its liability had not been established.

Meanwhile, the defendant had informed the trial court that he had moved to Poland. This resulted in Kraków-Śródmieście District Court no longer having territorial jurisdiction over the case. On an unknown date the applicant was asked to indicate in which court he wished to pursue his claim: Kraków-Podgórze District Court or Kraków-Nowa Huta District Court. The applicant failed to do so. On 12 July 2000, of the court’s own motion, the case was referred to the Kraków-Podgórze District Court.

On 16 October 2000 the applicant sent a letter to the President of the Kraków Regional Court. He complained about the slow conduct of the proceedings. On 17 November 2000, in reply to his complaints, the President observed that the proceedings were indeed lengthy and gave his assurance that he would supervise their conduct.

At the hearing held on 9 February 2001 the Kraków District Court gave judgment. On 27 April 2001 the applicant appealed. On 15 October 2001 the Kraków District Court rejected the appeal, as the applicant had failed to pay the required court fee within the statutory time-limit. On 30 January 2002 the Kraków Regional Court quashed this decision and allowed the applicant’s appeal of 27 April 2001.

The proceedings are pending before the Kraków Regional Court.


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in 1955 and lives in Katowice.

On 9 December 2002 a hearing in a criminal case concerning a largescale fraud and generating considerable media interest was held before the Kraków Śródmieście District Court. Advocate J.Z., representing three accused (K.W., A.D. and A.M.D.) submitted to the court a power of attorney authorising another advocate, Ms D.K. who also represented A.M.D., to replace him for the purposes of representing his other two clients. The court accepted that document without any comment.

During the same hearing a heated exchange broke out between lawyers representing various defendants as to the possibility of a conflict of interest between various clients of lawyers involved in the case, including between J.Z.’s two clients K.W. and A.D. on the one hand and A.M.D., represented by advocate D.K., on the other. During that exchange advocate J.Z. declared that he would not represent A.M.D. any longer.

The court expressed the view that it was too early at that stage of the proceedings to determine whether there was any conflict of interest between the accused which would have prevented the same lawyers from representing them. The courts admonished the lawyers several times for allowing the debate to get out of hand and for their inappropriate conduct in the courtroom.

On 15 December J.Z. informed his clients K.W. and A.D. on the phone that he would not be able to attend the hearing scheduled for 16 December 2002. He referred to the authorisation he had given to Ms D.K. on 9 December 2002 to replace him for the purposes of that hearing. He also informed Ms D.K. accordingly.

On 16 December 2002 the court held the hearing. Advocate J.Z. was absent. Advocate D.K. informed the court that he had informed her that he had authorised her to replace him for the purposes of that hearing and referred to the authorisation submitted to the case file at the hearing of 9 December 2002.

Subsequently, the court declared, having regard to the testimony given by A.M.D. at the previous hearing, that there was a conflict of interest between K.W. and A.M.D. and that, accordingly, they could not be represented by the same lawyer.

The court adjourned the hearing having regard to the fact that advocate D.K. was to represent both her client A.M.D. and K.W. on the basis of the authorisation given to her by advocate J.Z. on 9 December 2002 (see paragraph 6 above).

On 17 December 2002 Dziennik Zachodni, a newspaper published in Katowice, published an article written by the applicant and entitled “A Lawyer’s Nonchalance?”

The applicant alleged that J.Z., the advocate representing the accused in a major criminal case pending before the Kraków Śródmieście District Court, had failed to meet his professional obligations and act diligently by failing to attend the hearing held on 16 December 2002.

The relevant part of the text read:

“(...) ‘it is the absence of the defence lawyer which is a problem’ explained the presiding judge, E.S.

Advocate J.Z. failed to attend the hearing and did not justify his absence. He only asked another advocate to tell the court that he could not attend the hearing and requested that advocate (one day before the hearing) to replace him. The court could not accept that replacement, because the interests of the defendants represented by J.Z. and by that advocate were in conflict. The court could not but adjourn the hearing.

Advocate Z. was well aware of that conflict. Other defence lawyers in that case had drawn his attention to it. It is difficult not to see his absence as disrespect towards the court, the prosecutor (...), the parties who reside in Silesia. He is, after all, supposed to know how to justify an absence before a court.

‘I am baffled by the attitude of the defence lawyer’ said judge E.S.

The court informed the local Bar Council about the lawyer’s conduct.”

After the hearing, advocate J.Z. first requested the newspaper to publish a rectification, within the meaning of Article 31 of the 1984 Press Act, arguing that the conflict of interest between his clients and the client of Ms D.K. had been officially acknowledged only on 16 December 2002. Hence, he could not reasonably have been expected to know that his absence on that date would entail the adjournment of the proceedings. He argued that at the hearing held on 9 December 2002 there had been an exchange between the lawyers involved in the case as to the possibility of a conflict arising between the various defendants, including between his two clients and Ms A.M.D., represented by Ms D.K. However, on that date the court had only expressed the view that it was inappropriate to have that argument in the courtroom. No finding in respect of the conflict of interest had been made on that date. In any event, he had stepped down as A.M.D.’s defence lawyer.

The newspaper refused to publish a rectification within the meaning of the 1984 Press Act. On 21 December 2002 it merely published the advocate’s letter under the heading “Letters”, accompanied by the applicant’s unfavourable comment, essentially reiterating the allegation of negligence on his part. The applicant wrote that J.Z. had informed his clients by phone on 15 December 2002 that he had given Ms D.K. his authorisation to act on his behalf in their defence. It was further stated that his clients had been unaware that he would be absent on 16 December 2002. “[t]his is what they told me” – the applicant concluded.

Subsequently, the advocate sued the newspaper, the applicant and the editorinchief of Dziennik Zachodni for breach of his personal rights within the meaning of Articles 24 and 25 of the Civil Code (see paragraph 30 below).

At a hearing in that case held on 26 June 2003 the Katowice Regional Court heard as witnesses K.W. and A.D., the claimant’s clients and defendants in the criminal case. K.W. stated that the claimant had known as early as 9 December 2002 that he would not be able to attend the hearing scheduled for 16 December 2002 and that he had therefore authorised Ms D.K. to replace him. The criminal judge had accepted that authorisation without objections. A.D. made a similar statement. He added that after the hearing of 16 December 2002 he had briefly talked with a journalist in the court’s corridor and that he had not told her that he had not been informed about the advocate’s absence prior to that hearing.

The court had regard to the article published by the applicant on 17 December 2002 and to her comments on the claimant’s letter published on 21 December 2002 (see paragraphs 10 and 12 above), to the correspondence between the claimant and the defendant editor-in-chief, to the minutes of the hearings held on 9 and 16 December 2002 and to the parties’ statements.

The first-instance judgment was given on 18 September 2003. The Katowice Regional Court first recounted the exchange of views between the lawyers during the hearing held in the criminal case on 9 December 2002 as to the possible conflict of interest between their clients. It noted the criminal court’s statement, recorded in the minutes of that hearing, that there had been no basis at that time to find that a conflict of interest had indeed existed. It further found that on 15 December 2002 the lawyer had informed his clients and Ms D.K. on the phone that he would not be able to attend the hearing scheduled for the next day. On 16 December 2002 the criminal court had made an official declaration, again recorded in the minutes, that a conflict existed between the interests of A.M.D. and K.W. and that they could therefore not be represented by the same lawyer, and adjourned the hearing until 6 January 2003.

The civil court noted that in her two articles the applicant had accused the claimant of unprofessional conduct. She had made an untrue statement to the effect that the claimant’s clients had not known before the hearing of 16 December 2002 that the claimant would not attend it. The articles had been widely discussed in local legal circles and had had a negative impact on the claimant’s situation. Some of his clients had lost their trust in him.

The court noted that the evidence before it had demonstrated that the applicant’s allegation that K.W. and A.D. had been informed of the claimant’s absence only at the hearing of 16 December 2002 was untrue. The claimant had already known about his absence on 9 December 2002. It was shown by the fact that on that date he had authorised another lawyer to act on his behalf in the defence of his clients. They had already been aware of it on that date. The criminal court had accepted this authorisation for Ms D.K. to act without comments or objections. On that date no finding had been made by that court that there had been a conflict of interest between the clients represented by the claimant and those represented by Ms D.K. In these circumstances, the claimant had had no reason to expect that his absence on 16 December 2002 would disturb the conduct of the proceedings. Consequently, his non-attendance on 16 December 2002 could not be seen as unjustified or his conduct regarded as nonchalant or disrespectful.

The court was of the view that the articles concerned had breached the claimant’s personal rights. The applicant had alleged that he had failed to attend the hearing and to justify his absence and that the hearing on 16 December 2002 had had to be adjourned because of his conduct.

The court noted that under the Press Act the press enjoyed freedom of expression. That freedom was not absolute; it could be restricted in certain circumstances. In particular, the press was obliged to respect the rights of other persons. The Press Act obliged journalists to show diligence and integrity in gathering materials and publishing articles, because press publications could potentially harm individuals in a manner much more powerful than any other means of defamation.

The court was of the view that the applicant should have contacted the claimant before the publication of the article on 17 December 2002 and ask for his comments. She had failed to do so.

The article published by the applicant had lacked objectivity, contained undeserved criticism of the claimant and had been sensationalist rather than aimed at informing readers about the criminal case in a balanced manner. In particular, its title was particularly sensationalist. The newspaper had a wide readership in the region and therefore the impact of the article on public opinion was likely to have been significant and seriously detrimental to the claimant’s interests. Hence it was necessary to impose on the defendants an obligation to publish an apology and a rectification.

The court further imposed on the defendants an obligation to pay, jointly, 30,000 Polish zlotys (PLN) to a charity. It observed that that amount was significant enough to have an impact on the publisher, but not high enough to be seen as seriously detrimental to his financial position.

The applicant appealed, submitting that she had fulfilled her journalistic duties in reporting the case. Her view that the advocate had failed to act diligently in the representation of his clients had been well-founded and the firstinstance court had wrongly established the facts of the case.

On 7 October 2003 the Katowice Court of Appeal upheld the contested judgment, essentially sharing the conclusions of the lower court.

It observed that the right to freedom of expression guaranteed both by the Constitution and the Convention could be restricted in a democratic society for the purposes of the protection of individual rights such as dignity or personal rights within the meaning of the Civil Code and in compliance with the principle of proportionality enshrined in the Constitution. Where the exercise of the freedom of expression collided with the protection of the reputations of individuals, such a conflict had to be resolved with due regard being had to the case-law of the European Court of Human Rights.

The court noted that the applicant’s article published on 17 December 2002 concerned the conduct of a criminal case generating considerable interest among the general public. However, that did not imply that an interference with the claimant’s personal rights had been necessary. Judicial reporting had to be objective and strict priority had to be given to information, with due regard to the facts recorded by way of court records, which could be considered reliable; not to the reporter’s opinions and views. In the light of this principle, nothing justified the title “A Lawyer’s Nonchalance?”, referring to the lawyer who had been named in the article. Moreover, the text had contained untrue information to the effect that the court had made clear its intention to complain about the lawyer’s conduct to the local Bar Association. It had not been shown that the court had indeed made such a declaration or even suggested that it intended to do so. The applicant’ s intention to annoy the claimant and to undermine his professional reputation and integrity for the purposes of making the text more attractive or sensational could not be open to any doubt.

On 25 January 2006 the Supreme Court refused to entertain the applicant’s cassation appeal.

Article 54 of the Constitution provides:

“1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone.

Preventive censorship of means of social communication and licensing of the press shall be prohibited.”

The relevant provisions concerning the correction of information in the press and other media are contained in the Press Act (Prawo prasowe) of 26 January 1984.

Section 31 provides, in so far as relevant, as follows:

“At the request of a natural or legal person or other organisational entity, the editor-in-chief of the relevant daily or magazine is under an obligation to publish, free of charge:

a factually based (rzeczowe i odnoszące się do faktów) rectification of untrue or inaccurate statements,

a factually based (rzeczową) reply to any statement which might infringe an individual’s personal rights”

Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:

“The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person facing a risk of an infringement of his or her rights may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) caused to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”


No violation of Art. 3 (in case of extradition to Pakistan)

Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in 1971 and currently lives in Uppsala.

On 2 May 2007, at the age of thirty-six, she arrived in Sweden. The following day she applied to the Migration Board (Migrationsverket) for asylum and a residence permit.

On 25 July 2007 counsel was appointed for the applicant, who in a communication of 5 September 2007 and during an interview on 25 October 2007 held by the Migration Board, stated her reasons for requesting asylum as follows. The applicant was born and raised in Karachi in a family which had been Christian for several generations. She had a university degree and had taught Urdu in a secondary school in Karachi from 1999 until she left the country. She was married, but had been separated from her husband since May 2006. Her parents and three of her siblings remained in Karachi. In 2004 she had become active in a Christian organisation called Franciscan Justice, Peace and Integrity of Creation Commission (Franciscan JPIC). She had worked as a volunteer in her free time and the purpose of the Franciscan JPIC had been to create understanding between Christians and Muslims and to carry out charity work on a local level. She had, inter alia, helped women in vulnerable situations. In March 2007 she and some of the members of the organisation had been threatened and harassed through letters and text messages to their mobile phones. She was convinced that religious fundamentalists were responsible for the threats because they wrongly believed that the Franciscan JPIC tried to convert Muslims to Christianity. Her father had destroyed the five or six letters which had come to their home and she had only read one of them. She had read three text messages, thereafter she disposed of her SIM card. In the morning of 27 March 2007, following a night mass, she had been travelling on the organisation’s minibus with the President, Vice-President and two other members when they had been stopped by three or four fundamentalists on motorbikes. She seemed to remember that the minibus had a red cross on the roof. The assailants had used cricket bats to try to break the windows of the minibus and had accused the group of blasphemy against Islam. The driver had succeeded in driving away from the assailants. The President of the organisation had reported the assault to the police. Thereafter, the applicant lived with her aunt in another town until she left Pakistan on 17 April 2007.

Following the applicant’s arrival in Sweden, she was informed by her father that she had been formally accused of blasphemy and that an arrest warrant had been issued against her. Her father sent her a copy of the arrest warrant and of a police report, but she did not know how her father had obtained them or where the originals were. She believed that the arrest order had only been shown to her father. Later, he also sent her a copy of a summons, but she was not sure whether it was an arrest warrant or a summons; she would have to verify that with her father. The said documents could be described as follows:

“1. A copy of poor quality of a document in Urdu which was not translated. According to the applicant, the translation was the “First Information Report” (FIR) lodged by three named persons at a Karachi police station on 5 May 2007. It was registered as FIR. 65/2007 and contained accusations against the applicant and three other members of the Franciscan JPIC of having violated Articles 295(b) and 295(c) of the Penal Code. The document stated that the person who lodged the report attacked and assaulted the applicant and three others and tried to kill them. It further stated that the attackers searched for the applicant in her home with the intention of killing her.

A copy of a document in English, stating “the summons/warrant noted on the margin is forwarded herewith for service”. The names of the applicant and three other persons were inserted in handwriting as was case no. “315/2007”, “FIR no. 65/07” and Articles “295 (b) and 295(c)” of the Penal Code. It was allegedly issued by the Court of 12th Judicial Magistrate East and directed to the Police Station “Gulshan-e Jabel” (inserted in hand writing) in Karachi. It stated: “You are hereby directed to depute some responsible officer not less then the rank of ASI for the service and also direct him to present in person along with process and report on 5 June 2007 (the date in handwriting) at 8.30 a.m. without fail.” It was signed and stamped.

A copy of an alleged warrant for arrest in English. The document contained very few lines typed with an old type writer, for example “you are herewith directed to arrest the said ... and to produce him befo(deleted). Hereln fail not.” The main parts were inserted in hand writing such as FIR no. 65/07, case no. 315/07, the court as above, the same Articles of the Penal Code as above, and the names of the applicant and the same other three persons as the above, and the dates. Allegedly the police were asked to arrest them before 10 July 2007 and the warrant was signed and stamped on 20 June 2007.”

The applicant also submitted:

“4. A copy of a certificate written by the President of Human Rights International Alliance, dated 16 April 2007, in which he certified that the applicant was an acting member of the Franciscan JPIC Pakistan and that she had visited him to ask for help because she felt threatened by religious fundamentalists. She and her colleagues had reported this to the police and the President had also looked into her claims together with his team and had found that the applicant’s life was endangered by religious fundamentalists. He considered that the applicant was in need of complete protection.

A copy of a certificate dated 4 April 2007 by the Director of the Franciscan Justice, Peace and Integrity of Creation Commission, Custody of St. John the Baptist, Pakistan. The Director certified that the applicant had been an active member of the organisation since 2004 and that she had voluntarily devoted her time to the organisation. The organisation worked for peace and justice and to bring harmony through interfaith dialogue in order to allow different religions to understand each other. They also assisted poor people, in particular women. It was further stated that the applicant and other members of the organisation had received life-threatening calls, letters and text messages. Four times, unknown persons had thrown stones at them. Muslim extremists wanted to kill them and their families because the extremists mistakenly believe that the organisation wants to convert Muslims to Christianity. The last threatening letter had stated that the members of the Franciscan JPIC were “kafar” and that the authors had commenced “jihad” against them and would kill them. They also threatened to have them punished through the blasphemy laws. The organisation had reported this to the police but without results so they had stopped their activities. The Director requested that the applicant be granted asylum in order to save her life.

A copy of a letter very similar to the one above but written by the President of the Franciscan JPIC, dated 5 April 2007.”

On 21 November 2007 the Migration Board rejected the application. It first noted that neither the general situation in Pakistan nor the general situation for Christians in Pakistan were such as to justify granting the applicant protection in Sweden. As concerned her personal grounds, the Board considered that the certificates from the Franciscan JPIC did not substantiate that she had been the victim of threats and harassment. Moreover, the arrest warrant did not state expressly why she was sought by the authorities. Hence, even if the documents were real, they did not show that she would risk being punished for blasphemy in a discriminatory manner. The Board further questioned whether the police report was genuine as the applicant had handed it in to the Board after she had submitted the arrest warrant. It also found it unlikely that persons would admit to crimes in a report to the police giving their names and details, since making threats and assaulting someone were also crimes in Pakistan. Lastly, it found it remarkable that the applicant could not explain how her father had obtained the documents. Hence, the documents did not substantiate the applicant’s story. Turning to her credibility, the Board considered that the applicant had given a rather vague and unclear account. She had also altered some of her statements and, in large parts, her story was based on information from her father, as he had read and destroyed the letters and obtained the documents concerning blasphemy. Furthermore, the applicant had not been able to explain why she had been of particular interest to the fundamentalists as opposed to the others who had been prominent members of the organisation. Her explanation, that she had been very active as a volunteer and thus visible, was not convincing to the Board. In any event, the acts of which she had been the victim were criminal acts and for the Pakistani authorities to deal with. Although some discrimination existed in Pakistani society, it was not so flagrant that it could be said that the authorities lacked ability or willingness to protect its citizens. In this respect, the Board observed that the applicant had not reported any of the threats, and that her family had not tried to find out the details about why the police were looking for her. It did not consider that the applicant faced a real and concrete risk of being punished for blasphemy. Furthermore, it noted that the applicant had an aunt in another city and that, since the Franciscan JPIC according to the applicant was a very small and local organisation, she should be able to avoid problems by settling in the same city as her aunt. Consequently, the Board concluded that the applicant was not in need of protection in Sweden.

The applicant appealed to the Migration Court (Migrationsdomstolen) and requested a change of lawyer. She alleged that her sister had been kidnapped and her parents had disappeared. She further alleged that she could not live with her aunt, as her cousin had abused her while she had been staying with them in April 2007. She pointed out that the warrant of arrest did state why she was sought by the authorities in that it made reference to Article 295(b) of the Penal Code which concerned defiling and similar of the Holy Koran and could lead to imprisonment for life. Reference had also been made to Article 295(c) of the Penal Code, which concerned the use of derogatory remarks and similar in respect of the Holy Prophet and could lead to the death sentence. Furthermore, she had received two leaflets from a friend in Pakistan showing that fatwas had been issued against her and her colleagues in the Franciscan JPIC. Also, it was clear that the applicant, as a Christian and as a woman, could not count on the protection of the police. Instead, going to a police station where there were only Muslim men would put her at further risk of abuse. Furthermore, the organisation had reported the threats to the police and the other members at risk had also fled the country. Lastly, she stated that she was in very poor mental health following the disappearance of her family, which she considered to be her fault.

She submitted, inter alia, the following documents:

“7. A copy of a letter dated 7 April 2007 sent by the applicant to the President of Human Rights International Alliance informing him, inter alia, that the organisation had received threatening letters and that four times unknown persons had thrown stones at them.

A copy of a letter by the President of the Human Rights International Alliance in Pakistan, dated 14 April 2007, and addressed to the Inspector General of Police in Karachi. It referred to a letter from the applicant as “acting member, Franciscan JPIC Pakistan,” which the President had received and which he enclosed (it referred to the threats made by extremists against the applicant and other members of the Franciscan JPIC). The President was asking the Inspector General to take the necessary legal action in order to protect the life of the applicant and her colleagues.

A copy of a handwritten letter from the Franciscan JPIC to the Pirabad Police Station in Karachi in which they reported that they had been attacked, when travelling on their bus, by a group of unknown men who had thrown stones at them. The letter was stamped as received at the Police Station on 16 April 2007.

A one-page leaflet in Arabic which, allegedly, was a fatwa issued by Mufhta Jamelo Rehman and in which the applicant and the other named members of the Franciscan JPIC were accused of having insulted Allah and the Prophet. They should therefore be killed in Jihad and the person who carried out this deed would be allowed into heaven. He requested all Muslims to join in this work of justice.

A one-page leaflet in Arabic which, allegedly, described how Muslims were insulted by other religions and stated that the applicant and other named members of the Franciscan JPIC had insulted the Koran and the Prophet. It requested the Pakistani Government to arrest the guilty parties immediately and to hang them. If not, it was all Muslims’ duty to participate in Jihad against the infidels and to kill them.

A medical certificate by a physician in psychiatry dated 17 April 2008, which stated that the applicant had been treated at the clinic between 15 and 17 April 2008 for suicidal thoughts. According to the physician the applicant was suffering from serious depression and Post Traumatic Stress Disorder (PTSD), In particular, the applicant was worried about returning to Pakistan and her relatives in Pakistan. Some family members had fallen ill and her sister had been kidnapped.

A medical certificate, dated 28 October 2008, written by the same doctor as above. It stated that the applicant had been in treatment since December 2007. She had been committed to a closed psychiatric unit between 7 and 28 December 2007 because she had collapsed and had suffered from a serious mental disorder, including suicidal thoughts and depression. Due to her severe depression she had been treated with ECT (electric shocks). Since then she had been taking antidepressants and seeing a doctor every second month. In October 2008 she had been found still to be suffering from severe depression and she claimed to hear voices from her family and sometimes to see them in front of her.”

On 8 October 2008 the applicant’s request for a change of counsel was rejected by the Migration Court, notably because the case was almost ready for judgment and the acknowledged differences between counsel and the applicant could not justify a change of counsel. Leave to appeal against that decision was refused by the Migration Court of Appeal (Migrationsöverdomstolen) on 11 November 2008.

On 19 May 2009 the Migration Court held an oral hearing during which the applicant was heard. Her appointed counsel was present, as well as an adviser. The applicant maintained that her parents had disappeared the day after they had reported the kidnapping of her sister to the police. When the applicant had learned what had happened to her family, she was admitted to hospital.

By judgment of 4 June 2009 Migration Court found against the applicant. From the outset it considered that the written evidence submitted in the case was of low evidential value as the copies were of very poor quality and unclear. The leaflets allegedly containing fatwas issued against the applicant, for example, which were shown to the court in originals (documents nos. 10 and 11), could easily be produced and did not have much weight as evidence. Moreover, the applicant had not known how her father had obtained the alleged arrest warrant or the police report (FIR). As concerned the applicant’s credibility in general, the court found that her story had been vague and uncertain, in particular in respect of the content of the threats. She had claimed that her father had protected her from most of the threats arriving at the home by letter and telephone and, hence, she could not account for their content. She had also claimed that she did not know the identity of those who had threatened her. In the court’s view, however, this was rather contradictory since these persons allegedly had stated their names in the FIR. It thus appeared odd that they would have made anonymous threats. Furthermore, in the FIR the persons had written that they had sought the applicant at her home with the purpose of killing her. However, the applicant had not mentioned this at all. Also, the court considered that the threat against the applicant appeared disproportionate having regard to the fact that she had not been a member of the organisation, just a volunteer, and that she had not held any prominent or official role. Allegedly, the organisation was very small and worked only locally. As concerned the applicant’s family in Pakistan, the court noted that it was very unclear what had happened to them. In any event, it had not been substantiated that their alleged disappearance had anything to do with the threats against the applicant. Lastly, it considered that the applicant was suffering from poor mental health but that this was not life-threatening or so serious that it could justify the granting of asylum in Sweden.

The applicant appealed to the Migration Court of Appeal, relying on the same grounds as previously. She added that the President of the Franciscan JPIC had been granted asylum in Italy and that the Vice-President had been granted asylum in Canada. She submitted:

“14. A medical certificate dated 3 July 2009 issued by the physician in psychiatry mentioned in documents 12 and 13. He stated that the applicant was still under treatment at the out-patient psychiatric unit and that she was suffering from an acute crisis reaction and a severely depressive period. He concluded that the applicant’s mental state of health was fairly bad and that the risk for suicide was probably high.”

Anew the applicant requested a change of counsel, which was refused by the Migration Court of Appeal on 15 July 2009.

On 22 September 2009 the Migration Court of Appeal refused leave to appeal on the merits.

On 26 October 2009, upon request by the applicant, the Court applied Rule 39 of the Rules of Court until further notice.

Before the Court the applicant submitted:

“15. A letter from Rt. Rev Sadiq Daniel, Bishop of Karachi, dated 28 April 2009, stating that the Bishop had made enquiries about the applicant’s family but that all of them had been missing since the last week of November 2007. They were not at their home address and the local police had refused to cooperate in finding them.”

The Government requested assistance from the Swedish Embassy in Islamabad, which in return requested assistance from, inter alia, the Nordic Liaison Office in Islamabad in order to verify the authenticity of some of the documents submitted by the applicant. As to the copy of the FIR no. 65/2007 (document no. 1), an officer from the Nordic Police Liaison Office visited the police station in Gulshan Iqbal in Karachi. Without supplying background information, the police registrar at the above police station was asked to show FIR no. 65/2007, which he did. It related to a theft from a computer shop lodged at the police station on 4 February 2007 under Pakistani Penal Code 392 and 394.

The registrar of the police station provided a copy of a stamped FIR 65/2007 in Urdu. It was translated as follows:

“16. FIR no. 65/2007 was the first information report regarding a crime and included a signed statement by the person reporting it to the police. The report was issued at the Gulshan Iqbal police station, district Gulshan Iqbal Town. The person reporting to the police, Mr. Touseef Ali, reported on 4 February 2007, an armed robbery committed by four unknown persons. The robbery had occurred earlier that day at the Playdium Computer Game Centre, where Mr. Ali worked. The thieves stole mobile phones and cash from people at the centre. They also stole a car which was parked outside the centre. The report is signed by the policeman who issued the report. Legal reference of the crime is made to rule 392-34 of the Pakistani Constitution.”

The office of the Judicial Magistrate XII was also visited for the purpose of verification of the alleged summons and the arrest warrant (documents nos. 2 and 3). The total number of cases registered with the office for the year 2007 was 249. Case number 315/07 does therefore not exist and there are no records at the Office of the Judicial Magistrate XII of the summons or of the arrest warrant. Furthermore, no arrest warrant was issued by the office in the name of the applicant and others on 20 June 2007.

The Office of the Judicial Magistrate XII stated that the text on the copied stamps on the two documents (documents nos. 2 and 3) was false. The text of the genuine, round stamps should read “Court of Civil/Judge Judicial Magistrate - XII Karachi - East”, whereas the round stamp seen on the alleged summons and arrest warrant reads “Court of XII. Judicial Magistrate First Class Karachi East”. As regards the second stamp on the alleged arrest warrant, the text of the genuine stamp underneath the initials of the magistrate should read “Civil Judge, Judicial Magistrate XII, Karachi-East”, whereas the stamp on the alleged warrant read “Judicial Magistrate First Class Court No. XII, Karachi East”. Finally, the Office of the Judicial Magistrate XII stated that the signature on the documents was not recognised.

The address provided by the applicant in her asylum application as being her home address, where she had lived with her parents until shortly before leaving Pakistan, was also visited by a contact person from the Nordic Police Liaison Office. The family still resided there and there was no indication that they had disappeared.

The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010 and described inter alia in N. v. Sweden, no. 23505/09, § 29-33, 20 July 2010.

The US Department of State “2009 Human Rights Report: Pakistan”, of 11 March 2010, stated among other things:

“Arrest Procedures and Treatment While in Detention

A First Information Report (FIR) is the legal basis for any arrest. Police may initiate FIRs when complainants offer reasonable proof a crime was committed. A FIR allows police to detain a named suspect for 24 hours, after which only a magistrate can order detention for an additional 14 days, if police show such detention is material to the investigation. In practice authorities did not observe fully these limits on detention. Authorities frequently issued FIRs without supporting evidence to harass or intimidate detainees, or did not issue them when adequate evidence was provided unless the complainant paid a bribe. Police sometimes detained individuals arbitrarily without charge or on false charges to extort payment for their release. Police also detained relatives of wanted individuals to compel suspects to surrender.

Freedom of Religion

The constitution states that adequate provisions shall be made for minorities to profess and practise their religions freely, but the Government limited freedom of religion in practice. Islam is the state religion, and the constitution requires that laws be consistent with Islam. The Federal Shariat court ensures that laws are consistent with Shari’a. All citizens are subject to the blasphemy laws. Freedom of speech is constitutionally subject to “any reasonable restrictions imposed by law in the interest of the glory of Islam”.

According to the HRCP (Human Rights Commission of Pakistan) there was an increase in cases of violence against minorities during the year. Reprisals and threats of reprisals against suspected converts from Islam occurred. Members of religious minorities were subject to violence and harassment, and at times police refused to prevent such actions or charge persons who committed them, leading to an atmosphere of impunity. The constitution stipulates that the president and the prime minister must be Muslim. The prime minister, federal ministers, and ministers of state, as well as elected members of the Senate and National Assembly (including non-Muslims), must take an oath to “strive to preserve the Islamic ideology”, the basis for the creation of the country. Religious groups must be approved and registered; there were no reports that the government refused to register any group.

The penal code calls for the death sentence or life imprisonment for anyone who blasphemes the Prophet Muhammad. The law provides for life imprisonment for desecrating the Koran and up to 10 years in prison for insulting another’s religious beliefs with the intent to offend religious feelings. The latter penalty was used only against those who allegedly insulted the Prophet Muhammad.

On January 22 [2009], police arrested Hector Aleem, the country director of a Christian human rights NGO, after a member of a militant Islamic organization accused him of sending a blasphemous text message from his cell phone. Although the blasphemy charges were dropped after evidence showed the text message was not sent from Aleem’s cell phone, the charges of abetting blasphemy stood. A judge denied bail on April 30 and remanded Aleem in custody “for his own protection” after a religious extremist lawyer threatened his life in a court hearing ... At the end of the year, Aleem remained in jail awaiting trial on charges of abetting blasphemy.

On December 14 [2009], a local court acquitted and freed Christian Gulsher Masih and his daughter, Sandal Gulsher. They had been detained in October 2008 in Faisalabad after the father was accused of desecrating the Koran. ...”

The Country of Origin Information (COI) Report produced by the United Kingdom Border Agency on 17 January 2011 stated among other things:

“19. FREEDOM OF RELIGION

19.09 The USSD IRF Report 2010 (the US Department of State’s International Religious Freedom Report 2010) observed that:

Approximately 95 percent of the population is Muslim (75 percent Sunni, 25 percent Shia). Groups composing 5 percent of the population or less include Hindus, Christians, Parsis/Zoroastrians, Baha’is, Sikhs, Buddhists, Ahmadis, and others...

19.18 The PHRG (Parliamentary Human Rights Group) Report 2010 stated that “The State of Pakistan is failing at all levels to address the problem of malicious complaints of violations of the blasphemy law being pursued against Ahmadis and Christians, as well as members of other religious communities.

19.20 The HRCP Report 2009 noted that “In 2009, a total of 41 complaints of blasphemy were registered by the police. Some 37 Ahmedis were booked under blasphemy laws and 57 Ahmedis were charged under Ahmedi-specific laws. However, many cases were registered against Muslims as the rival sects of Islam increasingly used the blasphemy law against each other... The HRCP Report gave a number of accounts of blasphemy cases filed during 2009.

19.21 The Freedom House special report Policing Belief: The Impact of Blasphemy Laws on Human Rights, published October 2010, noted that “According to data compiled by nongovernmental organizations (NGOs) and cited by the U.S. State Department, a total of 695 people were accused of blasphemy in Pakistan between 1986 and April 2006. Of those, 362 were Muslims, 239 were Ahmadis, 86 were Christians, and 10 were Hindus. The Pakistani daily newspaper Dawn has reported that some 5,000 cases were registered between 1984 to 2004, and 964 people were charged with blasphemy.

19.22 The AHRC (Asian Human Rights Commission) Report 2009 provided slightly different data and noted that “According to data collected by the National Commission for Justice and Peace (NCJP), at least 964 persons were alleged under these anti-blasphemy clauses from 1986 to August 2009, while over 30 persons were killed extra-judicially by the angry mob or by individuals.

19.23 According to the National Commission for Justice and Peace (NCJP), at least 112 cases were registered under the blasphemy laws during 2009. “Of the 112 persons, 57 were identified as Ahmadis, 47 Muslims, and eight Christians. A total of 1,032 persons have been charged under the blasphemy laws between 1987 and 2009. ...”

As to mental health, the COI report went on:

“26.26 The HRCP Report 2009 recorded that “According to an expert every fifth person in the country suffers from some kind of psychological disease. The most common form of mental ailment is depression. Social behaviour creates hurdles in curing psychological diseases because people generally shy away from consulting doctors lest they attract stigma. There are only 400 qualified psychologists to handle the rapidly growing number of psychiatric cases in the country.

26.27 The World Health Organisation’s Mental Health Atlas 2005 for Pakistan stated that:

The primary sources of mental health financing in descending order are: out of pocket expenditure by the patient or family, tax based, social insurance and private insurances. The country has disability benefits for persons with mental disorders. Disability benefit is paid to individuals who are not able to work due to mental illness. Mental health is a part of primary health care system. Actual treatment of severe mental disorders is available at the primary level. The programme has initially started in Punjab, the largest province, in 1985 and is being extended to others over the years. There are many residential and day-care facilities, especially for people with learning disabilities providing social, vocational and educational activities. Regular training of primary care professionals is carried out in the field of mental health. Training programmes have started in the province of Punjab as a part of in-service training for primary care personnel. Till now, approximately 2000 primary care physicians and 42 000 primary care workers have been trained. Community activists from NGOs (e.g. National Rural Support Programme (NRSP) are also being trained. Though there are training programmes for physicians, nurses and psychologists, there are no such facilities for social workers. Mental health training has been included in the programme of the District Health Development Centres.

The Institute of Psychiatry, Rawalpindi Medical College, was the first WHO collaborating Centre-EMR and is acting as a resource centre at national and regional level for training, services information system and research. Multiple training manuals for primary health care physicians, paramedics, community workers and teachers have been developed. In an additional training package on counselling skills for health professionals, a package for rehabilitation of mentally ill has been developed... There are community care facilities for patients with mental disorders. ..More than 78 junior psychiatrists have been trained in community mental health to act as resource persons in the development of programmes in their areas. The National Steering Committee evaluates the quality of care delivery on a regular basis.

26.29 The Mental Health Atlas listed the following therapeutic drugs as generally being available at the primary health care level of the country: carbamazepine, phenobarbital, chlorpromazine, diazepam, haloperidol; imipramine (is supplied instead of amitriptylline); and procyclidine.”


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life)

George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1963 and lives in Helsinki.

The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child.

The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as transgender. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender re-assignment surgery.

On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport.

On 12 June 2007 the applicant requested the local Register Office (maistraatti, magistraten) to confirm her as being female and to change her male identity number to a female one as it no longer corresponded to reality.

On 19 June 2007 the local Register Office refused the applicant’s request. It found that, according to sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), the confirmation required that the person was not married or that the spouse gave his or her consent. As the applicant’s wife did not give her consent to the transformation of their marriage into a civil partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be introduced in the population register.

On 6 July 2007 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give consent, to which she was perfectly entitled as they both preferred to remain married, meant that the applicant could not be registered as a female. A divorce would be against their religious convictions. A civil partnership did not provide the same security as a marriage and this would mean, among other things, that their child would be put into a different situation vis-à-vis children born within wedlock.

On 5 May 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the local Register Office. Moreover it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Constitution as same-sex partners had a possibility, by registering their relationship, to benefit from family law protection in a manner partially comparable to a marriage. Similarly, Sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual did not violate the constitutional rights of the applicant’s child.

On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds presented before the local Register Office and the Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the European Convention on Human Rights. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a civil partnership was appropriate for her, especially when it required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for the confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed her to be transgender. Moreover, she claimed that if her marriage were turned into a civil partnership, it would mean that she could no longer be a legal father to her child nor his mother, as a child could not have two mothers.

On 3 February 2009 the Supreme Administrative Court refused the applicant’s request for a preliminary ruling and rejected her appeal. It found that by adopting the Act on Confirmation of the Gender of a Transsexual the legislator did not mean to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court had found under Article 12 of the Convention that there were no acceptable grounds to deny transgender persons their right to marry but that the margin of appreciation in this respect was large. It was not possible under Finnish law for persons of the same sex to marry but, in such a case, it was a question of a civil partnership. As to its juridical and economic consequences, a civil partnership was essentially comparable to a marriage. The question of transforming the marriage institution into a gender-neutral one was connected to significant ethical and religious values and it was to be solved by an act enacted by Parliament. The current state of law was within the margin of appreciation given to the State by the European Convention.

On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to annul its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male, as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against due to her gender.

On 18 August 2010 the Supreme Administrative Court refused the extraordinary appeal.

On 29 August 2007 the applicant applied for reimbursement of the costs of some hormonal medicine which was part of her treatment.

On 5 October 2007 the Social Insurance Institution (Kansaneläkelaitos, Folkpensionsanstalten) refused her application as she was deemed to be entitled to the reimbursement only once she had been given a new identity number.

By letter dated 11 October 2007 the applicant appealed to the Social Security Appeal Board (Sosiaaliturvan muutoksenhakulautakunta, Besvärsnämnden för social trygghet) claiming, inter alia, that she had been discriminated against.

On 21 January 2010 the Social Security Appeal Board accepted the applicant’s appeal and changed the decision of 5 October 2007 by the Social Insurance Institution, finding that the applicant was entitled to reimbursement.

As no appeal was made against this decision, it became final.

On an unspecified date the applicant also filed a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining about the wrong identity number as well as the reimbursement of medical costs.

On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court. As to the reimbursement of medical costs, the Ombudsman found that the fact that the reimbursement was conditional on the identity number and not on medical grounds placed transgender persons in a different position to other persons receiving the same treatment. She recommended that the Social Insurance Institution change its practice in this respect in order to prevent discrimination against transgender persons.

Article 6 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following:

“Everyone is equal before the law.

No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.

Equality of the sexes is promoted in societal activity and working life, especially in the determination of pay and the other terms of employment, as provided in more detail by an Act.”

Section 1 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet; Act no. 563/2002) provides that it shall be established that a person belongs to the opposite gender to the one noted in the population register if he or she:

“1) provides medical clarifications that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role as well as that he or she has been sterilised or is for some other reason incapable of reproducing;

2) is above 18 years of age;

3) is not married or in a civil partnership; and

4) is a Finnish citizen or has residence in Finland.”

Section 2 of the same Act provides for exceptions from the marital status requirement. A marriage or a civil partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local Register Office. When belonging to the opposite gender is confirmed, a marriage is turned ex lege into a civil partnership and a civil partnership into a marriage. This modification shall be noted in the population register.


The applicants, Süleyman Demir, İsmail Aktaş, Metin Kahramanoğlu, Ali Gündoğan and Bekir Demir, are Turkish nationals. They are represented before the Court by Mr A. C. Zülfikar and Mr M. Gündoğdu, lawyers practising in Elazığ.

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

Until October 1994 the applicant lived in Yukarıpeyde, a hamlet of the Ulukele village, in the Çemişgezek district of Tunceli, where he owns property.

In October 1994 security forces evacuated Yukarıpeyde within the context of military operations in the region. They also destroyed the applicant’s property. The applicant and his family then moved to the Tekeli village of Çemişgezek, where they currently live.

In 1995 and 2001 the applicant filed petitions with the District Governor’s office in Çemişgezek, Governor’s office in Tunceli, the State of Emergency Regional Governor’s Office and the Prime Minister’s office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit any document attesting his petitions to these offices.

On an unknown date the District Governor’s office in Çemişgezek sent a letter to the applicant stating that he would be given a compensation of 200,000,000 Turkish liras for his damages. When the applicant applied to the District Governor’s office to receive the compensation in question, the authorities refused his request on account of lack of resources. It is to be noted that the applicant did not submit any document in relation to his request of compensation and the authorities’ reply thereto.

On 17 September 2001 the applicant filed further petitions with the Prime Minister’s office and the District Governor’s office in Çemişgezek requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered.

On 28 September 2001 he received a letter from the Prime Minister’s office informing him that his petition had been referred to the Ministry of the Interior.

On 10 October 2001 the District Governor’s office in Çemişgezek sent the following reply to the applicant:

It was established that you voluntarily left your village following the burning down of your house. Besides, on 15 November 1995 you received 11,500,000 Turkish liras accommodation aid from the Social Aid and Solidarity Foundation.

Until October 1994 the applicant lived in Çambulak, a village of the Ovacık district in Tunceli, where he owns property.

In October 1994 security forces evacuated Çambulak, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. The applicant then moved to Elazığ, where he currently lives.

In 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. It is to be noted that the applicant did not submit any document attesting his petition with the Public Prosecutor’s office in Ovacık.

On unspecified dates the applicant filed several petitions with the District Governor’s office in Ovacık, Governor’s office in Tunceli and the State of Emergency Regional Governor’s Office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit to the Court a copy of these decisions.

On 31 October 2001 the District Governor’s office in Ovacık sent the following letter to the applicant in reply to his last petition:

“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Until October 1994 the applicant lived in Kıra, a hamlet of the Kozluca village, in the Hozat district of Tunceli, where he owns property.

In October 1994 security forces evacuated Kıra within the context of military operations in the region. They also destroyed the applicant’s property. Following the destruction of his property, the applicant moved to Hozat. He then moved to Elazığ, where he currently lives.

On 14 October 1994 the applicant filed petitions with the Prime Minister’s office, the State of Emergency Regional Governor’s Office and the Governor’s office in Tunceli requesting compensation for pecuniary and non-pecuniary damages he suffered.

On 26 January 1995 the District Governor’s office in Hozat rejected the applicant’s request, stating that he did not fulfil the conditions required by the Housing Law, no. 2510.

On an unknown date the applicant filed a further petition with the District Governor’s office in Hozat requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered.

On 13 September 2001 he received the following reply from the District Governor’s office in Hozat:

“...The Project ‘Return to the Village and Rehabilitation in Eastern and South-eastern Anatolia’ was developed by the South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma İdaresi Başkanlığı). It aims to provide the re-settlement of any inhabitants who unwillingly left their land due to various reasons, particularly terrorist incidents and who now intend to return to secure collective settlement units, since the number of the terrorist incidents have relatively decreased in the region. The Project also aims to create sustainable living standards in the re-settlement areas.

It was established that you had not filed a complaint against the perpetrators of the alleged incident.

An investigation will be initiated should you request and inform the District Governor’s office about the identities of the perpetrators who are responsible for your eviction from your village.”

Until October 1994 the applicant lived in Şahverdi, a village of the Ovacık district, in Tunceli. It is to be noted that the documents attesting the ownership of the property that the applicant used in Şahverdi bear the applicant’s father’s name.

In October 1994 security forces evacuated Şahverdi, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. Following the destruction of his property, the applicant moved to Ovacık. He then moved to Elazığ in 1996, where he currently lives.

On 29 January 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village.

On 1 February 2001 the District Governor’s office in Ovacık sent a letter to the applicant stating that there would not be an investigation into his allegations as it was established that the offence in question had been committed by members of the PKK. He was also informed that his petition would be considered under the ‘Return to the Village and Rehabilitation Project’.

On an unknown date the applicant filed a further petition with the District Governor’s office in Ovacık reiterating his request of permission to return to his village.

On 26 January 2002 the State of Emergency Unit of the District Governor’s office in Ovacık sent the following letter in reply to the applicant:

In October 1994 security forces evacuated Çambulak holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. The applicant then moved to Elazığ, where he currently lives.

On 16 August 1996 the village mayor (muhtar) of Çambulak, Baki Keser petitioned the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the State of Emergency Regional Governor’s Office, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament, on behalf of the villagers. He requested compensation for their losses.

On 2 February 1999 Mr Keser lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission on behalf of the villagers to return to their villages.

On an unknown date the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.

On 31 October 2001 the State of Emergency of Unit of the District Governor’s office in Ovacık sent the following reply to the applicant:

On 20 February 2002 the applicant lodged a further petition with the District Governor’s office in Ovacık, requesting compensation for the damages he suffered and permission to return to his village.

The applicant received no response to his last petition.

The investigation carried out by the authorities indicated that the applicants had left their villages on their own will. The security forces had not forced the applicants to leave their village.

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.

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

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

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

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


The applicant is an Estonian citizen, born in 1966 and currently serving a prison sentence in Estonia.

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

A.

On 17 April 1995 criminal proceedings were instituted against the applicant on the suspicion of his having committed a murder on the previous day. On 18 April 1995 the applicant was taken into custody. On 20 April 1995 he was formally charged with deliberate homicide and unlawful possession of a firearm. On the same day the Tartu City Court (Tartu Linnakohus), having regard to the nature of the crime committed, the danger of his absconding and the fact that the weapon used in the crime had not been found, ordered the applicant’s remand in custody until 26 April 1995. On 24 April 1995 the applicant’s defence lawyer lodged an appeal against the order with the Tartu Court of Appeal (Tartu Ringkonnakohus) which dismissed it on 8 May 1995. The applicant’s detention on remand was subsequently extended until 30 June 1995.

On 24 April 1995, apparently on the investigator’s order, the authorities seized from the applicant’s apartment, and in his absence, three passports and two other items. The applicant claims that the authorities also seized other objects which were not entered in the official records. He further claims that the authorities conducted an undocumented search at his work place.

Upon conclusion of the preliminary investigation the applicant and his defence lawyer were presented with the contents of the case file on 9-16 June 1995.

On 22 June 1995 the Tartu public prosecutor approved the summary of charges against the applicant and transferred the case for examination to the Tartu City Court where it was registered on the same day. On 10 July 1995 the City Court held a preliminary hearing in which it considered that due to its case load it was not possible to begin the applicant’s trial immediately, and extended the applicant’s detention until 30 September 1995.

On 26 October 1995 the City Court held another preliminary hearing in which it committed the applicant for trial and set its date for 11-17 January 1996. It prolonged the applicant’s detention accordingly.

On 4 December 1995 the applicant complained to the City Court that it had violated procedural time-limits under Articles 184 and 204 of the Criminal Procedure Code concerning the start of the trial. He also complained that the authorisation for his detention was renewed only 27 days after the prior authorisation had expired on 30 September 1995.

The formal indictment was served on the applicant on 5 December 1995 and his trial commenced on 11 January 1996. As the applicant considered that his witness TN, who testified before the City Court and was questioned by the parties on the same day, had been subjected to undue influence by unknown persons, he requested the City Court on 17 January 1996 to hear promptly his witnesses NL and VL. The City Court postponed the session until 1 April 1996. The applicant’s witness NL appeared before the City Court on 2 April 1996 where she gave evidence and was questioned by the parties. Her husband VL was also summoned but was not heard. The Government submit that VL failed to appear in the hearing while the applicant argues that the City Court refused to hear VL who was therefore denied entry into the court building. On the same day the defence lawyer requested the confrontation of two witnesses TN and IL both of whom had been previously heard by the City Court. The request was turned down as the City Court considered that it possessed sufficient evidence in the case.

On 1 April 1996 the applicant complained to the City Court that the authorities’ actions in his apartment on 24 April 1995 were unlawful as they had in fact performed a search which required the public prosecutor’s authorisation and that the seizure of objects took place without his presence. The applicant alleges that he also complained to the public prosecutor.

By judgment of the Tartu City Court 17 April 1996 the applicant was found guilty of the charges against him and sentenced to 9 years’ imprisonment.

On 22 April 1996 the applicant complained to the judge of the City Court about having had inadequate time to read through the minutes of the court sessions and to comment on them. He also pointed to the alleged violation of the procedural rules concerning the timelimits in examining his case.

On 25 April 1996 the applicant lodged an appeal against the City Court judgment disputing the assessment of evidence for his conviction. He further complained about the refusal of the City Court to allow the confrontation of the two witnesses and stated that the City Court had not addressed multiple violations of procedural norms during the pre-trial investigation. In particular, the applicant submitted that it made no mention of his complaint of 1 April 1996 regarding the search of his apartment and workplace and the seizure of his personal effects. In a hearing on 6 June 1996 before the Tartu Court of Appeal (Tartu Ringkonnakohus) the applicant also referred specifically to the interrogation of Russianspeaking witnesses without an interpreter and to falsified additions to the records of witness testimonies.

On the same day the applicant requested a new expert opinion on the cartridge cases. The Court of Appeal granted the request and adjourned its examination of the applicant’s case pending the outcome of the expert opinion.

On 23 September 1996 the applicant complained to the Court of Appeal about the discovery of changes in several case file documents, e.g. the crime scene record, which were introduced after the termination of the preliminary investigation without his knowledge. According to his lawyer, the changes were probably made after the judgment of the City Court.

By judgment of 25 September 1996 the Court of Appeal confirmed the judgment of the first instance court holding it lawful, well-founded and sufficiently motivated. As regards the applicant's complaint of 23 September 1996, the Court held that the alleged changes in the case file documents would not have influenced the City Court's judgment as they were introduced only subsequently.

On 7 October 1996 the applicant lodged an appeal in cassation to the Supreme Court (Riigikohus) in which he questioned the evaluation of evidence and pointed again to the allegedly unlawful search and seizure and other violations of procedural norms during the pre-trial investigation, including the interrogation of witnesses without an interpreter and the falsification of witness testimonies. He stated that he had received no reaction from either the City Court or the Court of Appeal to his complaints. He further complained about the introduction of later changes in the file documents and the failure of the Court of Appeal to fully address this issue.

On 27 November 1996 the Supreme Court refused the applicant leave to appeal against the Court of Appeal judgment. On 16 April 1997 it allowed, however, the applicant’s appeal for correction of court errors. By judgment of 6 May 1997 the Supreme Court dismissed his application holding the judgments of the Tartu City Court and the Court of Appeal lawful and not subject to annulment. It agreed with the analysis of the evidence and the conclusions reached in these judgments and did not find any substantial violations of the criminal procedure law which would have hindered the thorough, complete and objective investigation of the case or prevented the courts from rendering a lawful and substantiated judgment.

B. Relevant domestic law

According to Article 182 of the Code of Criminal Procedure the court must take a decision to try the accused who is in custody within 5 days from the arrival of the case file in the court. Its Article 204 provides that the trial must start no later than 20 days from the taking of that decision.

Under Article 77¹ of the Code of Criminal Procedure and Article 68 of the Code of Criminal Court Appeal and Cassation Procedure a special appeal on the decisions concerning pre-trial detention and its prolongation can be submitted within five days to a higher court.

Pursuant to Article 120 § 1 of the Code of Criminal Procedure supervision over the following of laws by the organs of preliminary investigation is carried out by the public prosecutor. According to its Articles 182 and 183 complaints regarding the activities of the police investigator are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed to the higher level public prosecutor.

Article 4 § 1(1) of the Code of Administrative Court Procedure provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials.

Article 139 of the Code of Criminal Procedure stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person’s possession there might be items of significance to a criminal case he may conduct a search to find them. A search may be conducted on the basis of a decision of an investigator and only upon the authorisation of the public prosecutor or his deputy. If an investigator knows the exact location of an item which is of significance to a criminal case, he may conduct the seizure of that item. A seizure is carried out on the basis of a decision of an investigator.

Under Article 140 of the Code of Criminal Procedure an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a protocol indicating their exact amount, format, weight and individual characteristics.

Article 141 of the Code of Criminal Procedure provides that a search and a seizure is conducted in the presence of the person concerned or his adult family member or, if this is not possible, in the presence of a local government representative.


András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky

The applicant, Mr László Járfás, is a Hungarian national who was born in 1945 and lives in Budapest. He is represented before the Court by Mr I. Barbalics, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.

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

On 16 February 1993 the applicant brought an action against his employer before the Veszprém Labour Court requesting compensation in the amount of 4,000,000 Hungarian forints (HUF) (approximately 15,800 euros (EUR)) for non-pecuniary damage and an additional monthly allowance of HUF 35,000 (approximately EUR 140) for pecuniary damage. The Veszprém Labour Court transferred the case to the Veszprém County Regional Court, because in the meantime the defendant company had gone into liquidation and the Regional Court was the competent authority to deal with the issue. The initial date of the liquidation procedure was 28 December 1991.

On 25 September 1997 the Regional Court, after having held three hearings and obtained the opinion of a forensic medical expert, dismissed the applicant's claims. On appeal, the Supreme Court, acting as a second-instance court, quashed the first-instance decision and remitted the case to the Regional Court on 4 January 1999.

Subsequently, the applicant raised his claims again. After having held nine hearings, the Regional Court delivered a decision on 16 July 2002. It partly found for the applicant and ruled that HUF 17,270,958 (approximately EUR 68,400), and an additional HUF 231,670 (approximately EUR 900) had to be registered on the applicant's behalf as a creditor's claim (hitelezői igény) in the liquidation procedure. On appeal, the Supreme Court, acting as a second-instance court, upheld this decision on 4 October 2004.

On 23 December 2004 the applicant lodged a petition for review with the Supreme Court.

The Supreme Court returned the applicant's motion for completion, observing that it did not meet the minimum requirements of a petition for review in that it failed to indicate a relevant breach of law or contain a clear request to have the final decision changed. It required the applicant to resubmit an amended petition in order that an examination of at least the admissibility thereof could be carried out. However, the applicant failed to comply with the Supreme Court's supplementation order.

On 19 January 2005 the Supreme Court dismissed the applicant's petition for review as inadmissible, since it was incomplete. The applicant lodged a complaint against this decision.

On 5 April 2005 the Supreme Court dismissed the applicant's complaint as incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. It pointed out that, in accordance with those provisions, no appeal whatsoever lay against inadmissibility decisions of the Supreme Court.

In December 2004 the debtor began to transfer the sum awarded into the applicant's bank account in instalments. The last instalment was paid in June 2005.