CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM

Alvina Gyulumyan;Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Pavlovschi;Viera Strážnická;Vladimiro Zagrebelsky;Volodymyr Butkevych

The second applicant company is the registered owner of a plot of 23 ha of agricultural land in Berkshire. The first applicant company acquired the land by a series of transactions between 1975 and 1977 and owned it until April 1986, when it transferred the land to the second applicant company subject to an option to repurchase. The owners of a property adjacent to the land, Mr and Mrs Graham (“the Grahams”) occupied the land under a grazing agreement until 31 December 1983. On 30 December 1983 a chartered surveyor acting for the applicant companies wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In January 1984 the applicant companies refused a request for a further grazing agreement for 1984 because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission.

Notwithstanding the requirement to vacate the land at the expiry of the 1983 agreement, the Grahams remained in occupation at all times, continuing to use it for grazing. No request to vacate the land or to pay for the grazing which was taking place was made. If it had been, the evidence was that the Grahams would happily have paid.

In June 1984 an agreement was reached whereby the applicant companies agreed to sell to the Grahams the standing crop of grass on the land for 1,100 pounds sterling (GBP). The cut was completed by 31 August 1984. In December 1984 an inquiry was made of the applicant companies as to whether the Grahams could take another cut of hay or be granted a further grazing agreement. No reply to this letter or to subsequent letters sent in May 1985 was received from the applicant companies and thereafter the Grahams made no further attempt to contact the applicant companies. From September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicant companies.

In 1997 Mr Graham registered cautions at the Land Registry against the applicant companies’ title on the ground that he had obtained title by adverse possession.

On 30 April 1998 the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions. On 20 January 1999 the applicant companies issued further proceedings seeking possession of the disputed land.

The Grahams challenged the applicant companies’ claims under the Limitation Act 1980 (“the 1980 Act”), which provides that a person cannot bring an action to recover any land after the expiration of twelve years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the twelve-year period, the registered proprietor was deemed to hold the land in trust for the squatter.

Judgment was given in favour of the Grahams on 4 February 2000 ([2000] Ch 676). Mr Justice Neuberger held that since the Grahams had enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant companies’ title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. At the conclusion of his thirty-page judgment, Neuberger J remarked that the result he had reached did not accord with justice and could not be justified by practical considerations: the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at the Land Registry. The fact that an owner who had sat on his rights for twelve years should be deprived of the land was in his view “illogical and disproportionate”.

The applicant companies appealed and on 6 February 2001 the Court of Appeal reversed the High Court decision on the ground that the Grahams did not have the necessary intention to possess the land, and the applicant companies were therefore not “dispossessed” of it within the meaning of the 1980 Act ([2001] EWCA Civ 117, [2001] Ch 804). Although this conclusion was sufficient to dispose of the appeal, two members of the Court of Appeal went on to address the question whether the applicant companies’ loss of title to the land could also have given rise to a violation of Article 1 of Protocol No. 1 as applied in domestic law by the Human Rights Act 1998.

Lord Justice Mummery, giving the judgment of the court, held that Article 1 of Protocol No. 1 did not impinge on the relevant provisions of the Limitation Act 1980, which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for twelve years or more after being dispossessed by another. The extinction of the applicant companies’ title was not, in his view, a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. In the alternative, Mummery LJ found that any deprivation was justified in the public interest, the conditions laid down in the 1980 Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of twelve years being reasonable and not imposing an excessively difficult burden on the landowner.

Lord Justice Keene took as his starting-point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of Protocol No. 1.

The Grahams appealed to the House of Lords, which, on 4 July 2002, allowed their appeal and restored the order of the High Court ([2002] UKHL 30, [2002] 3 All ER 865). Lord Browne-Wilkinson, with whom Lord Mackay of Clashfern and Lord Hutton agreed, held that the Grahams did have “possession” of the land in the ordinary sense of the word, and therefore the applicant companies had been “dispossessed” of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. Concluding, Lord Browne-Wilkinson held as follows:

“... Despite Pye’s notification to quit the land in December 1983, its peremptory refusal of a further grazing licence in 1984 and the totally ignored later requests for a grazing licence, after 31 December 1983 the Grahams stayed in occupation of the disputed land using it for what purposes they thought fit. Some of those purposes (i.e., the grazing) would have fallen within a hypothetical grazing agreement. But the rest are only consistent with an intention, verified by Mr Michael Graham, to use the land as they thought best. That approach was adopted from the outset. In my judgment, when the Grahams remained in factual possession of the fully enclosed land after the expiry of the mowing licence they manifestly intended to assert their possession against Pye.

... Before your Lordships’ House, it was conceded that the Human Rights Act [incorporating the European Convention on Human Rights] did not have a retrospective effect. But Pye submitted that, even under the common-law principles of construction applicable before the Human Rights Act came into effect, the court should seek to apply the law so as to make it consistent with the [Convention]. Any such old principle of construction only applied where there was an ambiguity in the language of a statute. No such ambiguity in the Act of 1980 was demonstrated to your Lordships.”

Lord Bingham of Cornhill, agreeing with Lord Browne-Wilkinson, made the following statement in the course of his judgment:

“The Grahams have acted honourably throughout. They sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J] ...) ‘arrive at with no enthusiasm’.” (JA Pye (Oxford) Ltd and Others v. Graham and Another [2002] 3 All ER 865, at 867)

As noted above, the question whether the result was incompatible with the applicant companies’ rights under Article 1 of Protocol No. 1 was not pursued before the House of Lords. However, in his judgment Lord Hope of Craighead, who also agreed with Lord Browne-Wilkinson on the reasons for dismissing the appeal, observed that the question under the Convention

“... is not an easy one, as one might have expected the law – in the context of a statutory regime where compensation is not available – to lean in favour of the protection of a registered proprietor against the actions of persons who cannot show a competing title on the register. Fortunately ... a much more rigorous regime has now been enacted in Schedule 6 to the Land Registration Act 2002. Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain a title to it against the wishes of the proprietor. The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.”

The value of the land in issue is disputed between the parties. The applicant companies put their pecuniary loss at over GBP 10 million. The Government put the value of the land in 1996 (when the twelve-year limitation period expired) at GBP 785,000, and in July 2002 (when the House of Lords judgment was delivered) at GBP 2.5 million.

At the relevant time, section 15 of the Limitation Act 1980, a consolidating Act, provided:

“(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

Paragraph 1 of Schedule 1 provided:

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.”

The same limitation provisions therefore applied to both registered and unregistered land. In the case of unregistered land, section 17 of the 1980 Act provided that, on the expiration of the limitation period regulating the recovery of land, the title of the paper owner was extinguished. In the case of registered land, section 75(1) of the Land Registration Act 1925 provided that on the expiry of the limitation period the title was not extinguished but the registered proprietor was deemed to hold the land thereafter in trust for the squatter.

Halsbury’s Laws of England (Fourth Edition, Reissue 1998) sets out the law in the following terms:

“258. When the owner of land has been out of possession, and a stranger has been in possession, for a period sufficient to bar the owner’s right to re-enter or to recover possession by action, the owner’s title is extinguished, and the stranger acquires a title which is good against all the world, including the former owner.

The Limitation Act 1980 operates negatively to bar the right and extinguish the title of the true owner, and does not effect a transfer of his estate to the stranger; the new title depends on the principle that possession gives title, coupled with the extinction of the rights of the former owner, and is subject to any easements [etc.] which remain unextinguished.”

The Law Reform Committee considered the law on limitation periods in its report of 1977 (Cmnd 6923). It commented negatively on the courts’ practice of granting an implied licence to the would-be adverse possessor, which had the effect of stopping time running against the owner, and proposed no change to the existing limitation periods, and agreed that the expiration of the limitation period should serve to extinguish the claimant’s title.

A Law Commission Consultation Paper on Limitation of Actions of 1998 (Consultation Paper No. 151) gave a number of general policy aims of the law on limitations. The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right. The State, too, has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial, and as guarantor of legal certainty. Finally, limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly.

A separate Law Commission Consultative Document on land registration in 1998 (prepared with the Land Registry; Law Com No. 254) noted that, although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format, there were certain areas where this was not wholly true. One example given was the position of the rights of adverse possessors (section 75(1) of the Land Registration Act 1925 was referred to). The Consultative Document set out and commented on four particularly cogent reasons often given for the law on adverse possession:

(i) Because it is part of the law on limitation of actions. It noted:

“... because adverse possession is an aspect of the law of limitation, it is of course customary to account for it, in part at least, in terms of the policy of limitation statutes generally, namely to protect defendants from stale claims and to encourage plaintiffs not to sleep on their rights. However, adverse possession does not merely bar claims. Its effect is positive: ‘a squatter does in the end get a title by his possession and the indirect operation of the [Limitation Act] ...’ This can only be justified by factors over and above those which explain the law on limitation. In this context it should be noted that a landowner may be barred even where he or she is quite blameless. As we have explained above, adverse possession can take place without it being readily detectable. In any event, this particular justification has much greater force in relation to unregistered land than it does for land with registered title. Unregistered title ultimately depends upon possession. It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights. ... [w]here title is registered, ... the basis of title is primarily the fact of registration rather than possession. Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ...”

(ii) Because if land and its ownership are out of kilter, the land may become unmarketable. Where the registered owner has disappeared, and cannot be traced, and a squatter takes possession, the doctrine of adverse possession “does at least ensure that in such cases land remains in commerce and is not rendered sterile”. Where there have been dealings “off the register”, such as where a farmer agrees to a land swap with a neighbour under a “gentleman’s agreement” but does not register the change, “adverse possession fulfils a useful function”.

(iii) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure. In such circumstances adverse possession can be justified on grounds of hardship, and there are parallels with the principles of proprietary estoppel.

(iv) Because it facilitates and cheapens investigation of title to land. The Law Commission accepted this last reason as being very strong for unregistered land, but considered that for registered land, where title depends on the contents of the register rather than possession, it was not applicable.

The Law Commission proposed, provisionally, that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration, and that it should be limited to very few, exceptional cases.

A Report on Limitation of Actions (Law Com No. 270) and one on registered land (Law Com No. 271) followed the Consultation Papers, and were published in July 2001.

The Law Commission Report on Limitation of Actions recommended that the general limitation period for actions in respect of land should be ten years. It added that if the proposals made on registered land in Law Com No. 254 were accepted, the proposal would relate only to interests in unregistered land (and unregistrable interests in registered land).

As a result of the various criticisms, including those made by a number of the judges in the present case and the Report on registered land (Law Com No. 271), the Land Registration Act 2002 made a number of changes to the law as it related to registered land. It provided that adverse possession, for however long, would not of itself bar the owner’s title to a registered estate. A squatter was entitled to apply to be registered as proprietor after ten years, and would be so registered if application was not opposed. If the application was opposed, it would be refused. If the application was refused but no steps were taken to evict the squatter or otherwise regulate the position, he was entitled to apply again to be registered as proprietor, and would be so registered whether or not the application was opposed. The 2002 Act came into force on 13 October 2002.

On 23 March 2005, Deputy Judge Strauss in the Chancery Division gave judgment in the case of Beaulane Properties Ltd v. Palmer (Times Law Reports, 13 April 2005). The case concerned a licensee who had remained in possession of registered land for over twelve years after the expiry of his licence. Applying the judgment of the House of Lords in the present case, the judge found that under English law as it stood up to the entry into force of the Human Rights Act 1998 the registered owner of the land lost all claim to it. However, on analysing the facts on a Convention basis, he found that there was no real public or general interest in the law on adverse possession in the case of registered land, and that the adverse consequences for the landowner were disproportionate. By reinterpreting the relevant legislation in accordance with section 3 of the Human Rights Act, the judge found that the claim by the former licensee to have acquired the disputed land failed.


In 1972 the State Treasury transferred to the applicants a property situated in Krosno. There was no adequate access by road to the property at that time, but the State authorities declared that an access road would soon be constructed. However, the authorities did not undertake any action to ensure proper access to the applicants' property. In particular, a right of way through neighbouring properties was never created.

In 1983 the applicants brought a civil action to have a right of way established by way of a judicial decision. On 31 December 1986 the Krosno District Court allowed their request. Their neighbours appealed.

On 27 October 1987 the Krosno Regional Court quashed the judgment of the firstinstance court and remitted the case for reexamination, finding that the first-instance court had failed to assess the evidence properly.

By a judgment of 23 October 1990 the Krosno District Court again granted a right of way to the applicants. The neighbours brought a new appeal. On 20 June 1991 the Krosno Regional Court quashed the contested judgment and again remitted the case for re-examination.

On 3 November 1997 the Krosno District Court allowed the applicants' claim. The Krosno Regional Court dismissed the neighbours' appeal on 6 October 1998. The neighbours brought a cassation appeal before the Supreme Court.

The Supreme Court refused to entertain their appeal on 22 June 2001. This decision was served on the applicants on 13 September 2001.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V.

In particular, section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant was born in 1961 and is currently detained in a penitentiary institution in the Kherson region, awaiting his extradition to Turkmenistan. The applicant’s lawyer claims that the applicant is a stateless person. According to the Government, the applicant is a Turkmen national. The applicant himself does not deny his Turkmen nationality and has not raised the issue of his allegedly stateless status before the Ukrainian authorities.

On 7 July 1999 the Turkmen law-enforcement authorities issued a bill of indictment against the applicant for inflicting light and grievous bodily harm on two individuals on 4 June 1999 (the latter, more serious crime is punishable by five to ten years’ imprisonment under the Criminal Code of Turkmenistan). The same day the Turkmen police ordered the applicant’s arrest. This latter decision was approved by the Ashgabat Azatlyksky District Prosecutor on 8 July 1999.

On 12 July 1999 a search for the applicant was announced by the police.

The applicant left Turkmenistan in October 1999 because of his alleged persecution on ethnic grounds. Since then he has resided in Ukraine.

On 4 January 2007 the applicant was apprehended by the police. According to the applicant his relatives were informed that he had been arrested for hooliganism and later they were informed he had been arrested under Article 106 of the Code of Criminal Procedure under an international search warrant.

The same day the applicant was informed that he was wanted by the law-enforcement authorities of Turkmenistan. According to the applicant, the police officers persuaded him to refrain from asking for legal assistance under the pretext that all procedural steps in his criminal case would be conducted in the territory of Turkmenistan.

The same day the Kherson Police Department received an official request from the Turkmen authorities for the applicant’s provisional arrest under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993.

On 8 January 2007 the applicant was allowed to see a lawyer.

On 10 January 2007 the applicant was brought by the police before a judge of the Kakhovsky District Court of the Kherson Region, who ordered his detention pending the extradition proceedings against him. The decision, which stated that an appeal could be made under Article 165-2 of the Code of Criminal Procedure, was served immediately. No time-limit was set for his detention.

The same day the applicant was questioned by the Gornostaevsky District Prosecutor, to whom he explained, inter alia, that prior to his arrest he had not been aware that he had been wanted by the Turkmen law-enforcement authorities. He further explained that he had signed a waiver of assistance from a lawyer since the police had explained to him that he would not face a trial in Ukraine.

On 15 January 2007 the applicant requested the Court to apply Rule 39 of the Rules of Court in his case. On 16 January 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that it would be desirable in the interests of the parties and the proper conduct of the proceedings not to extradite the applicant to Turkmenistan pending the Court’s decision.

On 19 January 2007 the General Prosecutor’s Office of Turkmenistan requested the applicant’s extradition with a view to criminal prosecution for the crimes of inflicting light and grievous bodily harm on two individuals. It further gave assurances that the applicant would be prosecuted only for the crimes indicated in the request, that he would be allowed to leave Turkmenistan after serving his sentence, and that he would not be handed over to a third country without the consent of the Ukrainian authorities. It added that he had never been and would never be discriminated against on the grounds of social status, race, ethnic origin or religious beliefs. This request was received by the General Prosecutor’s Office of Ukraine on 30 January 2007. It appears that the applicant learned about this document only in the framework of the Convention proceedings.

On 31 January 2007 the General Prosecutor’s Office of Ukraine informed the General Prosecutor’s Office of Turkmenistan of the suspension of the extradition proceedings pursuant to the interim measure indicated by the Court.

On 5 February 2007 the Gornostaevsky Prosecutor’s Office sent a petition to the head of the Gornostaevsky Police Department, stating that the applicant’s detention had breached criminal procedural law. According to the petition, the applicant had been arrested on 4 January 2007 and placed in a cell at the police station in accordance with the arrest warrant issued by the Ashgabat Azatlyksky District Prosecutor’s Office of Turkmenistan. The prosecutor noted that from 4 to 10 January 2007 the police had not brought the applicant before a court to decide on his detention and had not informed the prosecutor about his detention. The prosecutor considered that the situation had arisen because of the police officers’ negligent performance of their duties and called for disciplinary action to be taken against them.

By orders of 20 February and 15 March 2007 the police officers responsible for the applicant’s detention in violation of the law were punished by an oral warning, a formal reprimand and deprivation of bonus payments for one month.

In a letter of 19 April 2007 the First Deputy Prosecutor General of Turkmenistan, in reply to the request from the Ukrainian General Prosecutor’s Office, informed it that the observance of the applicant’s rights and legitimate interests would be guaranteed, in particular:

“- the requirements of Article 3 of the Convention on Human Rights and Fundamental Freedoms will be fulfilled in respect of N.I. Soldatenko, he will not be subjected to torture, inhuman or degrading treatment or punishment after extradition;

- in case of necessity he will be provided with appropriate medical treatment and medical assistance;

- the right to fair judicial consideration of his criminal case will be secured to him.”

He further pointed out that the death penalty had been abolished in Turkmenistan.

The relevant provisions of the Constitution read as follows:

“International treaties that are in force and are agreed to be binding by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine.”

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.

In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone who has been detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

“Human and citizens’ rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers...

... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant...”

“The following are determined exclusively by the laws of Ukraine:

(1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; ..

(14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...”

The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Turkmenistan on 19 February 1998. The text of the Convention was published on 16 November 2005 in the Official Gazette of Ukraine (no. 44, 2005). The relevant provisions of the Convention read as follows:

“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.

The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.

In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”

“1. A person arrested pursuant to Article 61 § 1 shall be released if no request for extradition is received within a month of the arrest.

A person arrested pursuant to Article 61 § 2 shall be released if no request for extradition is received within the time established by the law concerning arrest.”

Chapter 31-a of the Code lay down the procedure for considering complaints by citizens about decisions, acts and omissions of State bodies, legal persons and officials in the sphere of administration.

Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public-law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts.

According to paragraph 7 of Chapter VII of the Transitional Provisions of the Code, after its entry into force any applications and complaints arising from administrative-law relations (Chapters 29-32 of the Code of Civil Procedure 1963) that had been lodged but not yet considered were to be examined under the procedure set out in the Code of Administrative Justice.

Article 106 of the Code governs the arrest and detention of persons suspected of committing a criminal offence. It provides:

“The investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:

if the person is discovered whilst or immediately after committing an offence;

if eyewitnesses, including victims, directly identify this person as the one who committed the offence;

if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home.

For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record mentioning the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well.

The investigating body shall immediately inform one of the suspect’s relatives of his detention...

Within seventy-two hours after the arrest the investigating body shall:

(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;

(2) release the detainee and select a non-custodial preventive measure;

(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.

If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.

The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful.

The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.

Detention of a criminal suspect shall not last for more than seventy-two hours.

If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform accordingly the official or body that carried out the arrest.”

Article 148 of the Code provides that preventive measures shall be imposed on a suspect, accused, defendant, or convicted person.

Article 165-2 of the Code concerns the selection of a preventive measure in criminal proceedings. It reads as follows:

“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigating body, investigator or prosecutor.

In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person.

The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained.

In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.

Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order:

(1) refusing to select the preventive measure if there are no grounds for doing so;

(2) selecting a preventive measure in the form of taking of a suspect or accused into custody.

The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.

The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.”

Article 382 of the Code lays down the procedure of appeal against first-instance court rulings and decisions, including those given under Article 165-2 of the Code.

The recommendation calls for the following procedural requirements in the case of removal of asylum seekers:

“The Committee of Ministers ...

Recommends that governments of member states, while applying their own procedural rules, ensure that the following guarantees are complied with in their legislation or practice:

An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment.

In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:

2.1. that authority is judicial; or, if it is a quasi-judicial or administrative authority, it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence;

2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;

2.3 the remedy is accessible for the rejected asylum seeker; and

2.4 the execution of the expulsion order is suspended until a decision under 2.2 is taken.”

The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:

“The Constitution of Ukraine provides that no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law (Article 29).

In accordance with the first paragraph of Article 9 of the Constitution, international agreements in force ratified by the Verkhovna Rada form part of the national legislation. Under the second paragraph of section 19 of the International Treaties Act of 29 June 2004, if an international treaty to which Ukraine is a party and which has been ratified in accordance with a procedure prescribed by law establishes rules which differ from those laid down by the Ukrainian legislation, the rules of the international treaty shall apply.

Issues relating to inviolability and freedom of movement (detention, arrest, apprehension and so forth) are therefore regulated not only by the norms of the Code of Criminal Procedure (‘the CCP’) and Article 10 of the Criminal Code (‘the CC’), but also by international treaties to which Ukraine is a party, and in particular by the 1957 European Convention on Extradition and its Additional Protocols of 1975 and 1978, ratified on 16 January 1998 by Law no. 43/98-ВР, ... the CIS Convention on Legal Assistance of 22 January 1993, concluded in Minsk and ratified on 10 November 1994 by Law no. 240/94-ВР, bilateral treaties between Ukraine and other States, multilateral specialised treaties ...

... An examination of the practice of the courts of Ukraine in deciding issues relating to the extradition of persons to other States demonstrates that they have applied the relevant legislation differently. In particular, some courts initiate proceedings on applications by the competent authorities concerning the application of a preventive measure in the form of detention of the persons to be extradited, while others refuse to institute proceedings on such applications.

For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves:

... in deciding whether an issue relating to extradition to another State is within the courts’ jurisdiction, the courts must refer to the provisions of the Constitution of Ukraine, other national legislation, including the [1957] European Convention or other international treaties to which Ukraine is a party and by which it has agreed to be bound, or the former USSR’s treaties applied by Ukraine pursuant to Law no. 1543XII of 12 September 1991 on the succession of Ukraine.

The courts should therefore decide what treaties have been concluded between Ukraine and the requesting State and what procedure such treaties lay down for resolving extradition issues...

Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State the courts are not empowered to decide on this issue.

They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these issues are to be decided by the competent Ukrainian authorities.

Bearing in mind that in Ukraine a person can be held in detention for more than three days only on the basis of a reasoned court decision, and taking into account the fact that, pursuant to the second paragraph of Article 29 of the Constitution, such a decision can only be taken by a competent Ukrainian court, courts must accept jurisdiction and examine the merits of prosecutors’ requests and requests, approved by the prosecuting authorities, from the bodies acting upon extradition requests from other States [concerning individuals’ extradition], for detention and rendition under guard to the competent State bodies of the requesting State.

Pursuant to Article 16 of the European Convention on Extradition and other similar provisions of international treaties to which Ukraine is a party, the competent State bodies of the requesting State may in some cases request that a wanted person be temporarily detained. The competent State bodies dealing with the request shall take a decision in accordance with their country’s legislation.

In this way, local courts decide on and examine the merits of requests made by prosecutors or other bodies approved by them which are acting upon requests from other States relating to the extradition or temporary arrest of a person for the purposes of his or her transfer under guard to the competent body of the requesting State, for a period established by the European Convention on Extradition or another international treaty.

The courts must decide whether an individual’s detention or temporary arrest is in accordance with the rules laid down in Article 165-2 of the Code of Criminal Procedure.

The courts have the right to apply paragraph 4 of Article 165-2 of the Code of Criminal Procedure in a situation where a person is handed over to the court with a view to a decision on his apprehension (temporary arrest) for the purposes of extradition or transfer.

The court shall review the existence of a request and of the relevant documents, established by treaty, forming the basis for extradition, and the absence of any grounds prohibiting extradition or transfer (Articles 2, 3, 6, 10 and 11 of the European Convention on Extradition and the 1975 and 1978 Additional Protocols thereto and Article 57 of the 1993 CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters). In particular, detainees may not be extradited for political and military offences; in the event of expiry of the limitation period; when, in the territory of the party to which the extradition request has been made, a court has already delivered a judgment or resolution closing the proceedings concerning a charge similar to the one mentioned in the extradition request; when issues relating to the extradition of a citizen of Ukraine or stateless persons permanently residing on the territory of Ukraine are being considered; in respect of persons enjoying refugee status in Ukraine; if the requesting party fails to provide Ukraine with sufficient guarantees that a sentence of capital punishment will not be enforced for the offence for which extradition has been requested, [if the offence in issue] is punishable by the death sentence in accordance with the law of the requesting State; if the offence, in accordance with the law of the party requesting extradition, or Ukrainian law, can be prosecuted by means of a private prosecution; if the offence which forms the basis for extradition is punishable by a maximum [sentence] of less than one year’s imprisonment or a less severe penalty.

The courts shall also take into account other provisions of the European Convention on Extradition or other international treaties with regard to legal assistance which give the party to which the extradition request is addressed the right to refuse extradition.

The courts should also make due reference to the fact that, under Article 28 of the European Convention, its provisions replace any other bilateral international treaties, conventions or agreements regulating extradition issues between any two Contracting Parties. Therefore, if a requesting State is a party to the European Convention, the provisions of bilateral or multilateral international treaties concerning extradition shall be applied in part, where they amend the provisions of that Convention.

In accordance with the third paragraph of Article 29 of the Constitution, the courts shall take into account and examine the merits of complaints by the individuals concerned and their lawyers and legal representatives alleging unlawful detention on the basis of an extradition request from another State.

Such requests shall be examined on the basis of Article 106 (7) and (8) of the Code of Criminal Procedure. In deciding whether a person is being detained lawfully, the judge shall refer to the relevant provisions of Article 106 of the CCP with regard to detention procedures and compliance with procedural formalities and the provisions of the relevant international treaty on the basis of which the person has been detained, and also to the presence of the necessary documents on which the extradition is based (in particular, the request for extradition, the decisions of the competent bodies of the requesting party with regard to detention or arrest of the person, and so forth).”

The third party, commenting on the lack of a relevant procedure for reviewing decisions on extradition in Ukrainian law, submitted an example of the relevant domestic practice, which at the time had received considerable attention from the international community.

The 2006 Country Reports on Human Rights Practices, released by the United States Department of State on 6 March 2007, described this example of administrative practice in the following way in its report on Ukraine:

“On February 16, UNHCR and the international community strongly condemned the forcible deportation of 10 Uzbek asylum seekers. The SBU [Security Service of Ukraine] detained eleven men in Crimea based on extradition warrants issued by the Uzbekistani authorities on the grounds that they allegedly participated in the Andijan mass protests in Uzbekistan in May 2005. They were transferred to a Ministry of Interior detention facility in Simferopol. The UNHCR asked authorities for assurances that no asylum-seekers would be forcibly returned unless they had been determined not to be refugees and had completed asylum procedures, including any appeal. The Migration Service in Crimea rejected the asylum applications on the basis that they were ‘manifestly unfounded’. On February 14, 10 of the men were forcibly returned to Uzbekistan. (The remaining man was reportedly allowed to stay because he had relatives in the country.) Twenty-one Ukrainian regional human rights organizations issued a statement protesting the incident. On May 3, the Ministry of Justice issued a legal opinion saying that deportation was illegal. The president’s chief of staff stated that the deportation was a violation of procedure because the refugees were not granted ten days to appeal the deportation, but added that the extradition was acceptable as they ‘belonged to a radical Islamic group’.”

The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2003, released on 25 February 2004, noted with respect to Turkmenistan:

“c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

... there were widespread credible reports that security officials tortured, routinely beat, and used force against criminal suspects and prisoners to obtain confessions...

... There were reports that prisoners needing medical treatment were beaten on their way to and from the hospital. Security forces also used denial of medical treatment and food, verbal intimidation, and placement in unsanitary conditions to coerce confessions...

... Conditions were poor in prisons, which were unsanitary, overcrowded, and unsafe. Disease, particularly tuberculosis, was rampant, in part because prisoners who were ill were often not removed from the general prison population. Food was poor and prisoners depended on relatives to supplement inadequate food supplies. Facilities for prisoner rehabilitation and recreation were extremely limited. Most prisoners could receive food and sundries once per month from relatives; those who did not suffered greatly. Prisoners held under the ‘Betrayers of the Motherland’ law were unable to receive food, sundries, or visits by relatives. Most were held in the newly constructed maximum security prison at Ovadan Depe, where access to prisoners was extremely limited...

There were three types of prisons throughout the country: educational-labor colonies; correctional-labor colonies; and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, there were reports of excessive periods of isolation of prisoners in cells and ‘chambers’. A new prison for hardened criminals and political prisoners at Ovadan Depe, near Ashgabat, was completed in June. Authorities allegedly threatened, harassed, and abused prisoners in an attempt to force some prisoners to renounce their faiths.

In Gyzylgaya prison, located in the Karakum Desert, prisoners were forced to work in a kaolin mine under hazardous and unhealthy conditions...

... Some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the severe summer heat...

... Prison officials refused to respond to inquiries from family members and foreign diplomats about prisoners’ whereabouts or physical condition, or to allow family members, foreign diplomats or international observers, including the International Committee of the Red Cross (ICRC), to visit detainees or prisoners, including political prisoners, by year’s end. The Government claimed that granting access to prisoners would be an admission that there were problems with the country’s penal system...

Detainees are entitled to immediate access to an attorney once a bill of indictment has been issued; however, in practice they were not allowed prompt or regular access to legal counsel. Incommunicado detention was a problem. Authorities regularly denied prisoners visits by family members, who often did not know their whereabouts...

d. Arbitrary Arrest, Detention, or Exile

... In February, President Niyazov signed the ‘Betrayers of the Motherland’ law, which characterizes any opposition to the government as an act of treason. Those convicted under the law face life imprisonment, are ineligible for amnesty or reduction of sentence, and may not receive visitors or food from outside sources... By year’s end, approximately 50 to 60 persons were arrested or convicted under the law...

The law provides that a person accused of a crime may be held in pretrial detention for no more than 2 months, which in exceptional cases may be extended to 1 year. In practice, authorities often exceeded these limits ...

e. Denial of Fair Public Trial

The Constitution provides for an independent judiciary; however, in practice the judiciary was not independent. The President’s power to select and dismiss judges subordinated the judiciary to the Presidency. The President appointed all judges for a term of 5 years. There was no legislative review of these appointments, except for the Chairman (Chief Justice) of the Supreme Court, and the President had the sole authority to dismiss all appointees before the completion of their terms...

The law provides for the rights of due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if they could not afford one, and the right to represent themselves in court. In practice, authorities often denied these rights, and there were few independent lawyers available to represent defendants...

In January, summary trials of those accused in the November 2002 attack began without public notice. Suspects were not afforded regular access to their attorneys, and their attorneys were not allowed to cross-examine other defendants in the case during the pretrial investigation. Attorneys for some defendants received notice that proceedings against their clients were beginning only 15 minutes before the trials (the norm is 1 week). Some defendants did not receive adequate legal counsel. Attorneys for a number of defendants expressed regret for defending their clients in their opening statements, which were broadcast on state-owned television, even though the trials themselves were not public. The Government refused to allow family members or foreign diplomats to observe the proceedings. AI reported that none of the defendants had an independent lawyer representing them during their trial.

Defendants were not allowed to confront or question witnesses against them. Defendants and their attorneys were denied access to government evidence against them; the General Prosecutor’s Office stated the evidence consisted of ‘state secrets’. The defendants did not enjoy a presumption of innocence. Before the trials began, the Government publicly announced that the principal defendants were guilty and sentenced them to life imprisonment under the new ‘Betrayers of the Motherland’ law. Sentences for those convicted of involvement in the November 2002 attack ranged from life imprisonment to forced resettlement. The systemic failure to observe due process in investigating and prosecuting prisoners implicated in the attack made it difficult to distinguish between those actually complicit in the attack and some who may be political prisoners convicted for their perceived political opposition views. An OSCE Rapporteur described the trials as ‘in breach of all the most elementary principles of the rule of law’.

Courts allegedly ignored allegations of torture that defendants raised in trial...

In practice, adherence to due process in other cases was not uniform, particularly in the lower courts in rural areas. Even when due process rights were observed, the authority of the government prosecutor was so much greater than that of the defense attorney that it was very difficult for the defendant to receive a fair trial. In an October 2002 case against two former senior officials, the Ashgabat City Court refused to admit evidence critical to the defense, despite the fact that it appeared to be admissible under the law.

In general, observers were not permitted access to ostensibly open court proceedings. The Government physically prevented foreign diplomats from attending the trials of accused November 2002 attackers and of a civil society activist in March; however, foreign diplomats attended the trial of two former officials in October 2002 and of a member of Jehovah’s Witnesses in May...”

The 2006 Reports, released on 6 March 2007, showed no improvements in the situation:

“c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The constitution and law prohibits such practices; however, security officials tortured, routinely beat, and used excessive force against criminal suspects, prisoners, and individuals critical of the government, particularly in detention while seeking a confession...

Prison and Detention Center Conditions

Prison conditions were poor; prisons were unsanitary, overcrowded, unsafe, and posed a threat to life. Disease, particularly tuberculosis (TB), was rampant. There continued to be concerns that prisoners with TB were released untested and untreated into the general population, although the government reportedly began screening prisoners for TB, among other diseases, upon their release and provided some treatment in some cases. Prisoners diagnosed with TB were transferred to a special Ministry of Interior hospital in Mary Welayat for treatment. Government officials protested foreign diplomatic missions’ allegations of poor prison conditions, but they did not respond to direct inquiries. Nutrition was poor, and prisoners depended on relatives to supplement inadequate food supplies, although prisoners convicted for treason were unable to receive supplies from relatives. The government defined treason as any opposition to the government...

Family members and international publications claimed some prisoners died due to the combination of overcrowding, untreated illnesses, and lack of adequate protection from the summer heat...

There were three types of incarceration facilities throughout the country: educational-labor colonies, correctional-labor colonies, and prisons. Some prisoners, usually former government officials, were sent into internal exile. In the correctional-labor colonies, relatives of prisoners reported excessive periods of prisoner isolation. There were reports that prisoners were forced to work under hazardous and unhealthy conditions in a kaolin mine in Gyzylgaya Prison, near Dashoguz...

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention; however, arbitrary arrest and detention were serious problems...

Arrest and Detention

... Detainees are entitled to immediate access to an attorney once a bill of indictment is issued, and they were able to choose their counsel; however, in practice they did not have prompt or regular access to legal counsel. In some cases legal counsel ceased advising their clients after government officials altered the charges or case details initially provided to defendants. Incommunicado detention was a problem. By law detainees are to be charged within 72 hours; authorities did not respect this right in practice. There was no bail system. Authorities denied some prisoners visits by family members during the year. Families sometimes did not know the whereabouts of imprisoned relatives...

The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence. Unlike in previous years, there were no known treason convictions during the year. Those expressing views critical of or different from those of the government were arrested on charges of economic crimes against the state and various common crimes...

e. Denial of Fair Public Trial

The law provides for an independent judiciary; however, in practice the judiciary was subordinate to the president. There was no legislative review of the president’s judicial appointments, except for the chairman (chief justice) of the Supreme Court, who was reviewed by the rubber-stamp parliament. The president has the sole authority to dismiss all judges before the completion of their terms and has done so frequently down to the city level...

Trial Procedures

The draft revised criminal procedure code released in 2004 remained pending at year’s end. The code could significantly alter the 1961 Soviet code, which was still in force. The proposal incorporated rights of the accused, including the introduction of the presumption of innocence, restraints on police searches, establishment of a bail mechanism, and limits on pretrial detention.

The law provides due process for defendants, including a public trial, access to accusatory material, the right to call witnesses to testify on their behalf, a defense attorney, a court-appointed lawyer if the defendant cannot afford one, and the right to represent oneself in court. In practice authorities often denied these rights, and there were few independent lawyers available to represent defendants. There is no jury system. At times defendants were not allowed to confront or question witnesses against them, defendants and their attorneys were denied access to government evidence against them, and defendants frequently did not enjoy a presumption of innocence. In some cases, courts refused to accept exculpatory evidence provided by defense attorneys, even if that evidence would have changed the outcome of the trial. Even when due process rights were observed, the authority of the government prosecutor far exceeded that of the defense attorney, and it was very difficult for the defendant to receive a fair trial. Court transcripts were frequently flawed or incomplete, especially in cases in which defendants’ testimony needed to be translated from Russian to Turkmen. Lower courts’ decisions could be appealed, and the defendant could petition the president for clemency. However, in most cases, courts allegedly ignored allegations of torture that defendants raised in trial.

Foreign observers were permitted at some trials. However, many more trials, especially those considered to be politically sensitive, including the trial of Helsinki Foundation affiliate and RFE/RL correspondent Ogulsapar Myradova, were closed to observers...

Political Prisoners and Detainees

The law characterizes any opposition to the government as an act of treason. Those convicted faced life imprisonment and were ineligible for amnesty or reduction of sentence.

Opposition groups and international organizations claimed the government held many political detainees, although the precise number was unknown. Detainees may include several hundred relatives and associates of those implicated in the November 2002 attack being held without charge for their perceived political opinions and possible involvement in the attack.

Government officials refused to respond to inquiries from family members and diplomats about political prisoners’ location or condition. Government officials also refused to permit family members, foreign diplomats, or international observers, including the ICRC, access to detainees or prisoners associated with the November 2002 attack.”

Referring to the continuation of gross and systematic violations of human rights in the country, the UN Secretary-General’s report highlighted among the main areas of concern the use of torture and the absence of an independent judiciary in Turkmenistan. In his report the Secretary-General further noted, in particular:

“14. While welcoming the submission of the reports, the committees generally expressed the need for more information on the practical implementation of the provisions of the conventions, including statistical data, in accordance with the guidelines for preparation of reports. The Committee on the Elimination of Racial Discrimination ‘noted with deep concern the major contradictions between, on the one hand, consistent information from both intergovernmental and nongovernmental sources relating to the existence of grave violations of the Convention in Turkmenistan, and, on the other hand, the sometimes categorical denials by the State party’ (CERD/C/TKM/CO/5). The Committee also encouraged the State party to increase its efforts to institute a constructive and sincere dialogue.

E. Developments concerning the full respect for all human rights and fundamental freedoms

Prison conditions and torture

The following sections are based on information obtained by OHCHR, the special procedures of the Human Rights Council and the United Nations treaty bodies. Due to the limited access to information in Turkmenistan by international human rights bodies, further details on the human rights situation in the country were not available for the preparation of the present report.

The Special Rapporteur on the question of torture referred to the situation of a number of individuals convicted in December 2002 and January 2003 to prison terms ranging between five years and life for their alleged involvement in what the authorities described as an assassination attempt on the President in November 2002 (E/CN.4/2006/6/Add.1). All these prisoners continue to be held incommunicado, without access to families, lawyers, or independent bodies such as the International Committee of the Red Cross. The Special Rapporteur on the question of torture also mentioned Turkmenistan as one of 33 Governments that have never responded to urgent appeals sent under his mandate (A/60/316), although having received a significant number of urgent appeals.

The death in custody of a Radio Free Europe/Radio Liberty journalist, Ogulsapar Muradova, whose body allegedly bore signs of torture, raises particular concern.

The Committee on the Rights of the Child expressed its deep concern at the information that torture and ill-treatment of detainees, including children, is widespread (CRC/C/TKM/CO/1), especially at the moment of apprehension and during pre-trial detention, and used both to extract confessions or information and as an additional punishment after the confession...”

The International Helsinki Federation for Human Rights in its 2007 Report on Human Rights in the OSCE Region noted the widespread use of torture and ill-treatment in custody in Turkmenistan and poor prison conditions there. The same problems in Turkmenistan are mentioned by Human Rights Watch in its World Report 2007.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in 1975 and lives in the town of Nova Kakhovka, Kherson Region, Ukraine. He is a former employee of the Stateowned OJSC “Pivdenelektromash” (“the Company,” ВАТ “Південелектромаш”).

The background facts for the case are described in the case of Semenov v. Ukraine (no. 25463/03, §§ 5-8, 13 December 2005).

On 5 December 2002 the Nova Kakhovka City Court (Новокаховський міський суд Херсонської області) ordered the Company to pay the applicant UAH 4,393 in salary arrears. This judgment became final and the writs of execution were transferred to the Bailiffs' Service.

By letters of 26 February 2003 and 15 April 2003, the Bailiffs' Service and the Kherson Regional Department of Justice informed the applicant that the enforcement proceedings had been suspended due to the proceedings of financial rehabilitation of the debtor.

On 11 August 2003 the Nova Kakhovka City Court rejected the applicant's complaint about the allegedly unlawful inactivity of the Bailiffs' Service. The court stated that there was no fault attributable to the defendant.

On 15 January 2004 the Bailiffs' Service resumed the execution proceedings in the applicant's case. On 23 January and 10 February 2004, it ordered the seizure of the Company's accounts. However, on 27 February 2004 the Kherson Regional Commercial Court, on the trustee's appeal, quashed these decisions because the Bankruptcy Act envisaged the obligatory suspension of enforcement proceedings pending the resolution of a bankruptcy case.

The judgment in the applicant's favour remains unenforced.

The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).


The applicants, Mr Rüdiger Adam, Ms Angelika Vogt and Ms Marlis Bertling, are German nationals. They were represented before the Court by Mr K.H. Christoph, a lawyer practising in Berlin.

The applicants worked as ballet dancers in and for the German Democratic Republic (“GDR”). At the end of their stage career they were paid a monthly allowance (“the allowance“) for former ballet dancers. That allowance was paid by virtue of a set of Regulations enacted by the Minister of Culture (Anordnung über die Gewährung einer berufsbezogenen Zuwendung an Ballettmitglieder in staatlichen Einrichtungen der DDR) of 1 September 1976. It accrued after reaching the age of 35 and having worked for at least 15 years as a dancer. It was paid, irrespective of other earnings, by the last employer. Once the former dancer received an old-age or invalidity pension the allowance was paid by the National Insurance of the GDR (Staatliche Versicherung der DDR).

After the German reunification the allowance was initially converted into and paid in German marks (DEM). On 1 January 1992, however, all allowance payments to former ballet dancers were discontinued on the basis of Article 9 § 2 read in conjunction with Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990, hereafter referred to as “Article 9 of the German Unification Treaty” (see “Relevant domestic law and practice” below).

In 1992 the applicants and several other former ballet dancers of the GDR lodged a constitutional complaint with the Federal Constitutional Court. The latter refused to accept the complaint because the applicants had not exhausted legal remedies.

Applicant Adam

Applicant Adam (A) worked from 1960 to 1988 as a ballet dancer for a national company of the GDR. In 1988 he terminated his career on stage and was subsequently paid an allowance of 512, 50 marks per month until its suspension on 31 December 1991.

On 17 March 1995 A brought an action with the Dresden Social Court (Sozialgericht) claiming the continued payment of the allowance. On 11 April 1995 the Social Court referred his case to the Dresden Labour Court (Arbeitsgericht). On 10 August 1995 the Sachsen Social Court of Appeal (Landessozialgericht) rejected his appeal against the referral.

On 13 February 1996 the Dresden Labour Court rejected A’s action. It argued that A had no valid claim to any allowance payments beyond 31 December 1991. As the German Unification Treaty permanently ended payment of these allowances from that date, it did not recognise the allowance as being a legal claim within the social security system of the Federal Republic of Germany (FRG).

On 20 June 1997 the Sachsen Regional Labour Court (Landesarbeitsgericht) rejected A’s appeal (Berufung).

On 29 August 2000 the Federal Labour Court (Bundesarbeitsgericht) rejected A’s request for leave to appeal on points of law. It conceded that the wording of Article 9 of the German Unification Treaty was ambiguous in that it could be interpreted as setting 31 December 1991 either as the final date to qualify for the allowance or as terminating allowance payments permanently from that date. The legislator had however meant to suspend the allowance payments as of 31 December 1991. The allowance was an atypical benefit granted by the GDR and had been paid out of public funds. Under these circumstances a transfer of the allowance into the united German legal system would have required an explicit and more precise rule than that actually laid down in the German Unification Treaty. Furthermore Article 9 of the German Unification Treaty had to be construed bearing in mind that that provision was intended to lead to the creation of a uniform and united German pension system. Accordingly, it was meant to regulate the application of the GDR’s pension schemes for a provisional period only. With the adoption of the Law on the Transfer of Pension Rights and Future Pension Rights (Anspruchs- und Anwartschaftsüberführungsgesetz, hereafter “transfer law”) of 25 July 1991 (see “Relevant domestic law and practice” below) this purpose had been accomplished. The transfer law did not provide for further allowance payments after 31 December 1991 but established that the number of years which the ballet dancer had worked on stage would be taken into consideration in calculating his monthly pension.

On 2 July 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit A’s constitutional complaint. It referred to its leading judgment of 28 April 1999 (see “Relevant domestic law and practice” below), pursuant to which the pension rights acquired in the GDR fell within the scope of the Article 14 of the German Basic Law (Grundgesetz) protecting the right to property provided that the German Unification Treaty recognised them as legal claims within the united German legal system. Given that Article 9 of the German Unification Treaty prescribed that the allowance would not be transferred into the social and labour legislation of the FRG, however, it did not fall within the scope of Article 14 of the German Basic Law. It could accordingly be left undecided whether the allowance could be considered a pension. There had never been a legitimate expectation that the allowance would be transferred into the united German legal system, as in the legal system of the GDR, the allowance had already amounted to a preferential treatment. Besides, although the allowance was not based on contributions of the beneficiary, the German legislator had in a way allowed for it by establishing in the transfer law that the years during which a person had been working as a ballet dancer of the GDR and thereby had qualified for the allowance would be taken into account for calculating the pension to be paid to that person.

The decision was served on A’s lawyer on 2 August 2002.

Applicant Vogt

Applicant Vogt (V) worked as a ballet dancer for national companies of the GDR for over 15 years. In 1989 she terminated her stage career and was subsequently paid an allowance of 686, 50 marks per month until its suspension on 31 December 1991.

On 21 December 1992 V brought an action for declaration (Feststellungsklage) that, once she was going to receive an old-age or an invalidity pension, the Federal Insurance Office for Employees (Bundesversicherungsanstalt für Angestellte) would be obligated to pay her the allowance in addition to her pension.

On 25 January 1994 the Dresden Social Court rejected her action. It argued that V had no valid claim to any allowance payments beyond 31 December 1991 as the German Unification Treaty put a definitive end to such payments as of that date. The transfer law determined, however, that the years during which a person had been working as a ballet dancer for the GDR and thereby qualified for the allowance had to be taken into account to calculate the pension of that person. In this way the transfer law integrated the allowance into the pension system of the FRG but did not provide for allowance payments in addition to the pension.

On 27 July 1994 the Sachsen Social Court of Appeal quashed the decision of the Social Court and declared V’s action inadmissible.

On 14 September 1995 the Federal Social Court (Bundessozialgericht) rejected most of V’s appeal on points of law. It argued that the FRG was not the universal legal successor (Gesamtrechtsnachfolgerin) of the GDR and that the Unification Treaty determined which duties of the GDR had been transferred to the FRG and the Länder. The allowance as such had been abolished and would therefore not be paid in addition to a future pension.

On 2 July 2002 the Federal Constitutional Court refused to accept V’s constitutional complaint in a joint decision also dealing with A’s and B’s constitutional complaints. The decision was served on V’s lawyer on 2 August 2002.

Applicant Bertling

Applicant Bertling (B) worked as a ballet dancer for the Brandenburger Theater until February 1976. In 1976 she terminated her stage career and was subsequently paid an allowance of 304 marks per month until its suspension on 31 December 1991.

On 23 December 1992 B brought an action with the Brandenburg District Court (Kreisgericht), requesting the further payment of the allowance and a declaration that once she was going to be served an old-age or an invalidity pension the Federal Insurance Office for Employees would be bound to pay her the allowance in addition to her pension.

On 20 April 1993 the District Court referred the proceedings to the Potsdam Social Court. On 11 January 1994 the Potsdam Social Court rejected the applicant’s action. On 15 June 1995 the Brandenburg Social Court of Appeal rejected her appeal. On 29 April 1997 the Federal Social Court rejected her appeal on points of law.

On 2 July 2002 the Federal Constitutional Court refused to entertain B’s constitutional complaint in a joint decision also dealing with A’s and V’s complaints. The decision was served on B’s lawyer on 2 August 2002.

The German Unification Treaty

As a result of the German Reunification, which became effective on 3 October 1990, the GDR acceded to the FRG. The transition from a communist regime to a democratic system of market economy in the new Länder raised many issues relating to property rights in Germany, in particular regarding the transfer of former GDR citizens’ pensions.

To achieve economic and legal unification, the FRG and GDR concluded several agreements on the fate of GDR legislation, such as the German Unification Treaty of 31 August 1990, in which they agreed, inter alia, that vested rights and expectations were transferred to the social security system of the FRG. However, payments made on the basis of special regulations (Sonderregelungen) would be checked for the purpose of stopping unjustified or excessive payments (mit dem Ziel, ..., ungerechtfertigte Leistungen abzuschaffen und überhöhte Leistungen abzubauen). The German Unification Treaty, besides containing several other declarations, laid down fundamental principles in that connection. It established, inter alia, which parts of GDR law were to be incorporated into the unified German legal system.

Article 9 § 2 of the Treaty reads:

“The law of the GDR mentioned in Appendix II is to remain in force in the unified system, with the restrictions set out in the Appendix, and provided that that law is compatible with the Basic Law (Grundgesetz) and the law of the EU which is directly applicable.”

Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 inter alia reads:

“a. The Regulations on the allowance to be paid to former ballet dancers are applicable until 31 December 1991.

b. The Regulations can be amended until that date by a collective agreement (Tarifvertrag) or by a collective labour contract (Betriebsvereinbarung).”

The Transfer Law

The Law on the Transfer of Pension Rights and Future Pension Rights (transfer law, Anspruchs- und Anwartschaftsüberführungsgesetz) determined how the numerous additional or special pension schemes (Zusatz- oder Sonderversorgungssysteme) were integrated into the united German pension system.

Regarding the allowances examined here, it did not provide for them to be paid on top of the regular pension but prescribed that the number of years during which a ballet dancer had worked on stage would be taken into consideration for calculating the monthly pension.

Decisions of the Federal Constitutional Court

On 28 April 1999 the Federal Constitutional Court issued four leading judgments concerning the method used to deal with former GDR citizens’ pension rights. It determined that the pension rights acquired in the GDR fell within the purview of Article 14 of the German Basic Law (right to property), provided that the German Unification Treaty recognised them as a legal claim within the united German legal system. It furthermore examined the constitutionality of the transfer law and established which provisions of it were contrary to the Basic Law.

In all these cases judge Papier of the Federal Constitutional Court had declared himself biased. In 1994 the Federal Ministry of Social Affairs had commissioned him to examine the constitutionality of the transfer law. He withdrew from the bench making reference to the expert opinion he had rendered and where he had examined the constitutionality of the transfer law. The Federal Constitutional Court accepted his withdrawal and decided without his participation.


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

The applicant, Ms Mariola Wnuk, is a Polish national who was born in 1977 and lives in Trzebnica.

The applicant lodged with the Wrocław Regional Court an action for payment against the State Insurance Company (“PZU”).

On 8 October 1999 the Regional Court partly allowed the applicant’s claim. She appealed.

On 29 March 2000 the Wrocław Court of Appeal slightly increased the amount awarded to the applicant.

The applicant lodged a cassation appeal with the Supreme Court, alleging, inter alia, erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim.

On 8 May 2002 the Supreme Court refused to entertain the cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure (which entered into force on 1 July 2000) allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises.

The decision was taken by a single judge sitting in camera. The written reasons provided as follows:

According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1). (...)

In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal.

On 11 October 2002 the applicant lodged a constitutional complaint with the Constitutional Court, alleging, inter alia, a breach of her right of access to court and to a fair hearing on account of the retrospective application of new Article 393 of the Code of Civil Procedure to cassation appeals lodged before its entry into force.

On 31 March 2005 the Constitutional Court delivered judgment no. SK 26/02, having joined several complaints, including the applicant’s complaint, in the same proceedings (see domestic law below).

A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.

Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:

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

1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

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

Article 3933 specified the requirements of a cassation appeal. It read in its relevant part:

“§ 1. A cassation appeal should include:

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

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

3) arguments showing that its examination would be justified;

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

Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal.

Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons.

On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000. It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal):

“§ 1. The Supreme Court may refuse to entertain the cassation appeal, if:

1) there is no appearance of any significant legal issue in the case,

2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law,

3) the appeal is manifestly ill-founded.

§ 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.”

Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation.

Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case.

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

In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure.

The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice.

The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal.

According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body.

In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application. This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances.

The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent. The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future.

Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements. The right of access to a court had thus been transformed into a pretence of this right.

Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment.

Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect.

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

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

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

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

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

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

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

Article 39 of the Constitutional Court Act reads:

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

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

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

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

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

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

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