Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings

The applicant was born in 1928 and lives in Tarxien (Malta).

Before 1973 the applicant bought a house in Malta, which he had planned to use as a home for himself and his family. In order to purchase this building, he had incurred debts. Subsequently, in 1973 he acquired by donation full ownership of another house, in Paola. The applicant alleged that he then changed his plans and wanted to sell the former house in order to pay off his debts and to move into the house in Paola with his family.

On 31 March 1984 the house in Paola was seized by the Government under a requisition order issued by the Director of Social Housing under the Housing Act (Chapter 125 of the Laws of Malta).

On 23 August 1984 the applicant was informed that possession of the house in Paola had been given to a certain Mr G.

In September 1984 the applicant introduced a judicial protest against the relevant government department. He alleged that the issuing of the requisition order and the allocation of his property to a third party was causing him hardship. In a judicial letter of 8 November 1984, the Director of Social Housing asked the applicant, in his capacity as owner of the house in Paola, to recognise Mr. G. as the tenant of the premises (section 8 of the Housing Act).

According to the Housing Act, the applicant was entitled to receive a requisition rent for the use of his property. However the applicant alleged that no rent had ever been fixed or offered to him and since the date of the requisition he had received no compensation.

The applicant subsequently introduced a claim before the Civil Court (First Hall). He alleged that the requisition order and the allocation of his property to a third party was in violation of Article 1 of Protocol No.1, as incorporated into Maltese law by Act XIV of 1987 (European Convention Act). The applicant has not produced the documents pertaining to these proceedings and has not informed the Court about their outcome.

On 12 October 1990, while the first proceedings were still pending, the applicant introduced a second claim before the Civil Court (First Hall), alleging a breach of his right to the enjoyment of his property. He requested the Civil Court to issue the orders and directions needed to redress the violation of his fundamental rights, including, if necessary, a declaration that the relevant sections of the Housing Act had been abrogated by the European Convention Act.

In a judgment of 30 October 1995, the Civil Court declared the applicant's claim incompatible ratione temporis with the provisions of the European Convention Act, as the facts complained of had occurred before its entry into force on 30 April 1987. The requisition had been effected in accordance with the law which was in force at the time, and no violation of the applicant's fundamental rights could be established.

The applicant appealed to the Constitutional Court.

In a judgment of 28 February 2005, the Constitutional Court rejected the applicant's claim.

It considered that the situation complained of was a continuing one and the applicant was accordingly affected by it after 30 April 1987. Therefore, the facts of the case fell within the competence of the domestic courts.

As to the merits of the applicant's claim, the Constitutional Court noted that the only evidence produced by the applicant was a report of his architect, which stated that the rental value of the house was 120 Maltese Liras (MLT) (approximately 288 euros (EUR)) per year at the time of the requisition, and MLT 250 (approximately EUR 600) per year at the date of the report (28 October 1993). However, when the defendant declared that the rental value as fixed by the Land Valuation Officer was MLT 23 (approximately EUR 55) per year, the applicant did not produce any new evidence in rebuttal. According to the Constitutional Court, this constituted a manifest fault on the applicant's part. Furthermore, he never initiated proceedings before the Rent Regulation Board for the determination of a fair rent for his house.

The Constitutional Court also noted that in the implementation of policies of a socio-economic nature the margin of appreciation of the State was very wide. It quoted the case of Connie Zammit v. Malta (no. 16756/90, Commission's report of 12 January 1991) and an excerpt from van Dijk's and van Hoof's book “Theory and Practice of the European Convention” concerning the interpretation of the notion of “general interest”. In the light of the above, the Constitutional Court held that the applicant had proved neither the hardship he alleged nor a violation of Article 1 of Protocol No.1.

According to section 2 of the Housing Act requisition means:

“to take possession of a building or require the building to be placed at the disposal of the requisitioning authority.”

Until 1989 the Housing Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation. As in force at the time of the requisition of the applicant's house, section 3(1) of the Housing Act read as follows:

“The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with.”

After 1989 the authority to issue requisition orders was given to the Director of Social Housing.

A requisition order imposes on the owner of the requisitioned premises a landlord-tenant relationship. According to section 8(1) of the Housing Act, the Director of Social Housing may require the owner to recognise the person accommodated in his property as his tenant or sub-tenant.

The owner of the premises may seek authorisation for non-compliance with this request in accordance with section 8(2) and (3) of the Housing Act, which, in so far as relevant, provides:

“(2) Within thirty days of service on him of a judicial letter under the last preceding sub-section, the requisitionee, by application to the First Hall of the Civil Court in contestation of the Director, may pray for an authorisation of non-compliance with that request ...

(3) The court shall not grant the authorisation of non-compliance mentioned in the last preceding sub-section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request:

Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub-article.”

According to the Housing Act, the owner of the premises has a right to compensation, which is calculated and payable pursuant to the criteria established in section 11, which, in so far as relevant, reads as follows:

“(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say-

(a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period:

Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in article 2 of the aforesaid Ordinance;

(b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee;

(c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building ...”

According to Article 2 of the Rent Restriction (Dwelling Houses) Ordinance, “fair rent” means:

“i) in respect of an old house, the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities:

Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and

ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board:

Provided that where a payment under the War Damage Ordinance 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year's fair rent of the former building as on 31st March,1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less;

(iii) in respect of a scheme house, an annual sum to be determined by agreement ...”


The applicant is a British citizen born in 1968 and currently residing in Chelsea, London. In the proceedings before the Court she is represented by Mr Bulathwela of Antons, solicitors of Haringay, London.

The facts of the case, as they have been submitted by the applicant, may be summarised as follows:

The applicant was born in the United Kingdom and has lived there all her life. The applicant met her husband, Craig Mitchell a Jamaican citizen, in November 1991 and started to cohabit shortly after that date. On 6 November 1991, Mr Mitchell had been admitted to the United Kingdom as a visitor for 6 months subject to a condition prohibiting employment. Mr Mitchell did not seek to regularise his stay in the United Kingdom. His status was discovered when he was acquitted on drugs charges on 28 April 1993. At this time, Mr Mitchell admitted to immigration officers that he had undertaken casual labouring work and that he knew he had overstayed his leave to remain. He was served with a notice of intention to deport and detained. He was released on bail on 24 May 1993. On 2 July 1993 the applicant and Mr Mitchell married and on 27 March 1994 their daughter was born.

Mr Mitchell’s appeal against the decision to deport was dismissed on 16 August 1993 and he was refused leave to appeal to the Immigration Appeal Tribunal on 28 October 1993.

In 1993 the applicant’s previous solicitors applied, on Mr Mitchell’s behalf, to the Home Office to grant him further leave on the basis of his marriage to the applicant or in the alternative on the basis of their cohabitation.

Immigration officers called at the applicant’s home to investigate if the marriage was genuine and discovered that Mr Mitchell had been arrested on 5 November 1994 for drug dealing. On 3 April 1995, Mr Mitchell was sentenced to 5 years’ imprisonment for possession with intent to supply crack cocaine. In the immigration service marriage questionnaire the applicant stated that she would accompany Mr Mitchell if he was deported. The applicant says that she and her daughter visited Mr Mitchell every fortnight since his conviction and maintained regular phone contact. On 5 October 1995, the Secretary of State signed a deportation order against Mr Mitchell.

In February 1997, the applicant’s solicitors asked the Home Office to revoke the deportation order and to grant Mr Mitchell leave to stay. On 28 April 1997, the Secretary of State refused. On 8 September 1997, the Secretary of State confirmed that Mr Mitchell would be deported on his release on parole on 25 September 1997.

By this time, the applicant was expecting her second child in October 1997. The applicant’s solicitors sought leave to apply for judicial review of the Home Office decision but the High Court refused on 18 September 1997.

A revised decision dated 5 December 1997 from the Secretary of State stated:

"insufficient evidence has been produced to substantiate the claim that a common-law relationship akin to a marriage has subsisted since November 1991, or at any time prior to the initiation of deportation proceedings against Mr Mitchell. ... as <the applicant> and the children of the marriage will be given the opportunity of accompanying Mr Mitchell on deportation, at public expense if necessary, the Secretary of State is of the view that any interference with family life would be minimal and would be justifiable when set against the need to maintain an effective immigration control."

The Court of Appeal refused leave to apply for judicial review on 15 December 1997. Mr Mitchell was deported to Jamaica on 19 December 1997.


The applicant, Ernst Steiner, is an Austrian national, born in 1941 and living in Marchtrenk/Austria.

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

On 7 December 1973 the Roman Catholic Rectory of Saint Nicolaus (Römisch-katholische Stadtpfarrkirche St. Nikolaus, hereafter “the Rectory”), the owner of an estate in Hall/Tyrol, concluded a contract with Mr M. S., the owner of three adjacent estates, authorising him to use its estate for the construction of a sales hall. The agreement was subject to the condition that M. S. obtained the prior permission by the M. company, the tenant of the Rectory’s estate. M. S. later transferred his entitlement as regards the sales hall to the L. company.

On 2 October 1985 a donation contract of 23 December 1982 between the L. company as donor and the applicant as recipient was deposited with the Hall District Court and subsequently entered into the land register. The purpose of this contract was to transfer to the applicant the ownership of the sales hall, including the part of the building that had been constructed on the Rectory’s estate.

On 16 December 1987 the Rectory brought an action against the applicant before the Innsbruck Regional Court, requesting that the entry of the above donation contract into the land register be declared null and void. In an alternative claim the Rectory requested a declaratory judgment that the applicant had no property rights regarding the part of the sales hall constructed on the Rectory’s estate.

On 18 December 1987 the Innsbruck Regional Court refused to deal with the action for lack of competence and transferred the case to the Wels Regional Court. The Rectory’s appeal against this decision remained unsuccessful. In March 1988 the court file arrived at the Wels Regional Court.

At the hearing of 13 June 1988 the Wels Regional Court closed the proceedings and announced that the judgment would be given in writing.

By judgment of 21 October 1988 the Wels Regional Court dismissed the plaintiff’s main as well as its alternative claim. It found that the Rectory lacked legal interest in the matter since its own legal position was in no way affected by the registration of the donation.

On 12 October 1989 the Linz Court of Appeal, upon the Rectory’s appeal, partly quashed the judgment for errors of law and referred the case back to the Wels Regional Court.

On 13 June 1990 the Supreme Court, on both parties’ appeals, quashed the Court of Appeal’s decision and referred the case back to the Regional Court.

On 7 November 1990 the H. company, the successor of the M. company as tenant of the Rectory’s estate, intervened in the proceedings as coplaintiff. Hearings took place on 8 November 1990, 4 February, 23 April and 11 July 1991. On the latter date the applicant requested the court to revoke the co-plaintiff’s admission to the proceedings. On 22 January 1992 the Wels Regional Court rejected the applicant’s request. On 14 February 1992 the applicant appealed against this decision. On 6 April 1992 the Linz Court of Appeal dismissed the applicant’s appeal.

On 24 June 1992 the Wels Regional Court announced a hearing to be held at the Innsbruck Regional Court on 17 and 18 September 1992, at which 22 witnesses residing in Tyrol would be heard. On 27 August 1992 the applicant requested the court to cancel that hearing. He referred to the imminent change of judges.

On 29 January 1993 the Wels Regional Court, following a change of the competent judge, resumed the proceedings and heard a number of witnesses. The parties to the proceedings requested the court to hear further witnesses. Those not residing in Wels should be heard by way of judicial assistance.

On 16 July, 17 August and 24 September 1993 judicial assistance hearings were held at the Vienna District Court.

Further judicial assistance hearings were held at the Baden District Court on 16 November 1993, at the Innsbruck District Court on 16 February 1994, and at the Hall District Court on 24 March 1994.

On 18 November 1994 the Wels Regional Court held a hearing, at which it heard witnesses proposed by the applicant, and subsequently rejected the requests to hear further witnesses as irrelevant. It announced that the written version of the judgment would be served as soon as witness Z. had been heard by way of judicial assistance at the Vienna District Court.

Witness Z. failed to appear before the Vienna District Court on 4 and 18 January 1995. He was heard on 10 March 1995.

On 25 August 1995 the Wels Regional Court granted the Rectory’s claim and ordered that the entry in the land register of the donation contract between the L. company and the applicant concerning the part of the building located on the tenant’s estate of the Rectory be annulled. The court, having regard to the documentary evidence and the statements of the witnesses heard, found that in the absence of an agreement by the tenant of the Rectory’s estate (the M. company), the authorisation by the Rectory of December 1973 was not valid. Therefore M. S. and his successors could not lawfully acquire any ownership rights regarding the part of the sales hall situated on the Rectory’s estate.

On 6 December 1995 the Linz Court of Appeal dismissed the applicant’s appeal of 3 October 1995.

On 27 March 1996 the Supreme Court refused to deal with the applicant’s appeal on points of law. The decision was served on the applicant’s counsel on 7 May 1996.

Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."


No violation of Article 6 - Right to a fair trial;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born 1961 and is now serving a custodial sentence in the town of Yemva in the Komi Republic.

On 11 April 1991 the Kochubeyevskiy People's Court of the Stavropol Region convicted the applicant of aggravated robbery (Article 146 § 2 of the RSFSR Criminal Code) and the involvement of minors in criminal activities (Article 210 of the RSFSR Criminal Code). It sentenced him to eight years' imprisonment in a correctional colony. On 29 May 1991 the Stavropol Regional Court upheld the judgment on appeal.

The applicant was sent to a correctional colony to serve his sentence. On 14 March 1994 the colony director granted him home leave and he travelled to his native village in the Dagestan Republic. He was due back at the colony on 1 April 1994.

According to the applicant, he found his wife and children in a precarious situation and decided not to return to the colony but to start working to support his family. The applicant and his family moved to the town of Gubkinskiy in the Tyumen Region.

On 29 April 1999 the colony officials launched a criminal investigation in connection with the applicant's failure to return from home leave. On 29 August 2000 the applicant was summoned to a police station in Gubkinskiy and taken into custody.

On 16 November 2000 the Pechora Town Court of the Komi Republic convicted the applicant of evading punishment (Article 188.1 of the RSFSR Criminal Code) and sentenced him to six months' imprisonment to run consecutively to the time left to serve under the judgment of 11 April 1991 (four years and seven months in total).

The applicant filed an application for supervisory review of the judgment of 11 April 1991. On 18 April 2002 the Prosecutor General's office refused his application but forwarded a copy of it to the Stavropol prosecutor “to bring the applicant's sentence into conformity with the new Criminal Code [of 1 January 1997]”. The Stavropol prosecutor forwarded the request to the Komi prosecutor.

On an unspecified date a deputy prosecutor of the Komi Republic lodged an application “for [an order] bringing the applicant's sentence into conformity with the Criminal Code of the Russian Federation”.

On 28 June 2002 the Knyazhpogostskiy District Court of the Komi Republic granted the prosecutor's motion. It established that Article 162 § 2 of the Criminal Code of the Russian Federation provided for a more lenient punishment for aggravated robbery than Article 146 § 2 of the RSFSR Criminal Code. As the provisions providing for lighter sentences could be applied retrospectively to convicted prisoners, the court considered it necessary to recharacterise the offence committed by the applicant in accordance with the new Criminal Code. It also deleted from the original judgment a reference to the applicant's inebriated state at the time of the offence as the new Code no longer classified inebriated as an aggravating circumstance. However, that did not result in a reduction of the applicant's sentence because the original sentence remained within the limits of Article 146 § 2 of the new Code.

On 3 July 2002 the colony correspondence office informed the applicant that the application by the Komi prosecutor “would be heard in the Knyazhpogostskiy District Court”.

On 4 July 2002 the applicant asked the Knyazhpogostskiy District Court to obtain the case file from the Kochubeyevskiy People's Court to enable him to study the file, attend the hearing, make representations and apply for legal aid. According to the stamp on the applicant's letter, the District Court received it on 18 July.

On 26 July 2002 the applicant received a copy of the ruling of 28 June 2002 from the prosecutor's office.

On 2 August 2002 the judge of the Knyazhpogostskiy District Court who had made the ruling of 28 June, advised the applicant that that court had no power to obtain case files from other courts or to review final convictions and that the applicant could seek legal aid from the local bar council.

On 20 October 2003 the prosecutor of the Komi Republic lodged an application for supervisory review of the ruling of 28 June 2002 on the ground that it had been made in the applicant's absence.

On 19 November 2003 the Presidium of the Supreme Court of the Komi Republic granted the prosecutor's application. It quashed the ruling of 28 June 2002 and remitted the matter to the same court.

The applicant described the subsequent events as follows:

“On 11 December 2003 I was called to the colony headquarters where I was told, in room no. 2, that the ruling of the Knyazhpogostskiy court of 28 June 2002 would now be reviewed... I was told right away that the new ruling would be identical to the ruling of 28 June 2002, the only difference being that it would be made in my presence. I asked to appoint prisoner S. as my representative but was told, 'Prisoner S. is now restricted in his movements and cannot attend the court hearing'. I asked for the refusal to be certified in writing, but this was refused. I asked those present at the 'court hearing' to give their names, but was told, 'you will find out from the ruling'.

I considered my further participation in this farce inappropriate and asked that my refusal to participate further in the hearing ... be entered in the record and left the room. On 24 December 2003 I received the ruling of 11 December 2003 containing the phrase, '... having heard the submissions by convict T.S. Nurmagomedov...'”

On 11 December 2003 the Knyazhpogostskiy District Court issued a new ruling similar to the ruling of 28 June 2002.

The applicant lodged an appeal. On 31 December 2003 the judge informed him that his appeal could not be processed because of certain formal defects. The applicant did not re-submit his appeal.

According to the applicant, on 23 May 2002 he submitted an application to the European Court to the correspondence office of colony 222-35/2 (спецчасть ИК 222-35/2). Twenty-five days later the application was returned to him and he was told that he had no right to petition international institutions until he had exhausted all domestic remedies.

He sent a copy of his application to the Court through an informal channel and complained about the actions of the colony administration to a prosecutor's office.

On 12 July 2002 the Ust-Vymskiy prosecutor in charge of compliance with laws in correctional colonies (прокурор по надзору за соблюдением законов в ИУ) confirmed the lawfulness of the actions of the colony administration, finding as follows:

“An application to [i]nternational institutions is only possible after the issue has been resolved (or has not proved possible to resolve) within the country because otherwise the complaint or application would immediately be returned for resolution in the country... This procedure also applies to convicted prisoners...

Therefore the actions of the administration of correctional colony no. 2 declining to send your application to the Registry of the European Court of Human Rights were lawful...”

The applicant further submitted that the first package sent by the Court on 13 August 2002 had not been given to him until 31 December 2002. The envelope had been removed to make verification of the date of receipt impossible.

On 10 October 2003 the acting deputy colony director approved the findings of an internal inquiry that had been carried out by the deputy colony director in charge of prisoners' human rights into the circumstances surrounding the applicant's request to dispatch his application to the European Court. According to the inquiry's findings, in May 2002 the applicant had asked a senior inspector of the special registration group about the procedure for lodging applications with the European Court. The inspector had advised him to apply first to the competent domestic authorities. The applicant had made no further demands to the colony administration concerning his application and had sent it to the Court through informal channels, in breach of the internal regulations. The human-rights deputy director proposed to consider it established that the alleged hindrance had not taken place.

On the same date the acting deputy director issued order no. 592-A on behalf of the Mikun directorate of correctional facilities (Микуньское управление лесных исправительных учреждений) for the attention of the human-rights deputy director and the directors of other correctional colonies in the region. The introductory part of the order related the exchange that had taken place between the applicant and the colony inspector. The human-rights deputy director was ordered to provide each colony with a set of educational materials on the procedures for applying to, inter alia, the Russian Ombudsman and the European Court and to prepare test questions on human rights for colony officials. The colony directors were instructed to study the educational materials and to ensure compliance with the order of the Ministry of Justice of 23 December 2001 prohibiting all hindrances to the communication between convicted prisoners and the Court.

On 21 November 2003 the deputy Minister of Justice – the authority in charge of the penitentiary system – sent a circular to the heads of regional departments of the Chief Penitentiary Directorate, reminding them that the decision as to whether domestic remedies had been exhausted was made by the European Court itself and that the administration of a penal institution was not competent to determine this issue and were not to prevent prisoners from lodging applications with international human rights' organisations. The deputy minister called for rigorous compliance with the State's obligations under Article 34 of the Convention.

Pursuant to Article 146 § 2 of the RSFSR Criminal Code (in force until 1 January 1997), aggravated robbery was punishable by between six and fifteen years' imprisonment and the confiscation of property. Article 210 provided that involving minors in criminal activities, loitering or prostitution was punishable by up to five years' imprisonment.

Article 150 § 1 of the Criminal Code of the Russian Federation (in force since 1 January 1997) provides that involving a minor in the commission of a criminal offence through promises, deception, threats or otherwise is punishable by up to five years' imprisonment. Article 162 § 2 provides that aggravated robbery is punishable by between seven and twelve years' imprisonment and the confiscation of property.

Article 10 of the Criminal Code (“Retrospective effect of criminal law”) provides that where a new criminal law decriminalises an offence, provides for more lenient punishment or otherwise improves the situation of the offender it shall apply with retrospective effect to offences committed before it came into force, even where the offender is already serving sentence. If the new law provides for a shorter sentence, then the offender's sentence must be reduced accordingly. Laws providing for a heavier sentence or otherwise aggravating the situation of the offender have no retrospective effect.

Section 3 of the Criminal Code (Entry into Force) Act (no. 64-FZ of 13 June 1996) provided as follows:

“Where a convicted prisoner who was sentenced under the previous Criminal Code has not yet served his sentence, the sentence shall be brought into conformity with the Criminal Code of the Russian Federation if the sentence imposed by the court was more severe than the maximum sentence laid down by the relevant provision of the Criminal Code of the Russian Federation.

If the criminal law otherwise improves the situation of offenders or convicted prisoners..., convictions and judicial acts concerning other criminal-law measures must be reviewed by the convicting court or the court with jurisdiction for the locality where the sentence is being served.

Relief from punishment, a reduction in sentence or any other improvement in the situation of the offender ... shall be decided upon in accordance with Articles 361.1, 368 and 369 of the RSFSR Code of Criminal Procedure.”

Article 361.1 in Chapter 29 (“Execution of Sentences”) of the RSFSR Code of Criminal Procedure (in force until 1 July 2002) provided that a court, acting on an application by a convict or prosecutor in connection with the enactment of a law with retrospective effect, could exempt the convicted prisoner from serving the sentence, reduce his sentence or otherwise improve his situation. In such proceedings the court was required to base its ruling (определение) solely on the circumstances that were established in the final conviction and could not overrule the interpretation of the criminal law by the convicting court.

Article 368 determined the territorial jurisdiction of the courts. Article 369 provided that these issues were to be decided at a hearing. “As a rule”, the convict was to be summoned to the hearing.

Article 397 § 13 in Chapter 47 (“Proceedings for Examination and Determination of Issues Relating to the Execution of Sentences”) of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 (in force since 1 July 2002) provides that decisions on a reduction of sentence following the enactment of a law with retrospective effect shall be made in accordance with Article 10 of the Criminal Code.

As worded at the material time, Article 91 of the Penal Code and paragraph 12 of the Internal Regulations of Correctional Institutions (Order no. 224 of the Ministry of Justice of 30 July 2001) provided that all incoming and outgoing correspondence of detainees, other than correspondence with courts, prosecutors, penitentiary officials, the Ombudsman and counsel, was subject to censorship by the colony officials. Letters were to be put in mailboxes or given to the officials in an unsealed envelope. Paragraph 13 required detainees to submit all complaints through the colony officials.

By Order no. 393 of 26 June 1997, the Ministry of the Interior approved the Directive on the Functioning of Special Departments in Correctional Colonies. Paragraph 5.2 established that complaints addressed to authorities, organisations or officials who were not competent to deal with the matter concerned should not be forwarded to the addressees. The complainant was to be informed of that decision in writing and advised where to send his complaint. If the complainant disagreed with the decision not to forward his complaint, he could contest it by applying to the supervising prosecutor.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

In 1994 the applicant married D.M. and in 1995 their daughter S.M. was born.

In 1998 the applicant started having marital problems, apparently as a result of her contracting HIV.

On 3 July 1998 S.M. left Zemun, a part of Belgrade where she lived with her parents, to stay with her grandparents for a while.

In early August of 1998, D.M. brought S.M. back to Zemun.

Shortly afterwards, however, the applicant's marriage broke down and D.M. ceased living with the applicant. He also took S.M. to his parents' flat, denying the applicant any contact with her.

On 11 February 1999 the applicant filed a claim with the Fourth Municipal Court in Belgrade (“Četvrti opštinski sud u Beogradu”), seeking dissolution of the marriage, sole custody of S.M. and child maintenance. In addition, she requested interim relief, granting her temporary custody or, in the alternative, regular weekly contacts with S.M. until the conclusion of the civil proceedings.

On 23 July 1999 the Fourth Municipal Court in Belgrade (hereinafter “the Municipal Court”) ordered the Social Care Centre (“Centar za socijalni rad opštine Stari Grad”) to produce an expert opinion as to which party should be granted custody.

D.M. (hereinafter “the respondent”) appears to have been informed about the applicant's lawsuit during one of the meetings held at the Social Care Centre in 1999.

Following the institution of proceedings, the Municipal Court adjourned 15 separate hearings, including the hearings scheduled for 29 October 2003, 7 October 2004 and 19 October 2005, respectively.

Throughout this time, though mostly in response to the applicant's numerous proposals, the Municipal Court attempted to obtain information as regards the respondent's correct address from various State bodies, including the tax authorities, municipalities, the Ministry of Education and even the Commercial Court.

Summonses were sent to a number of addresses but each time the respondent could not be served, which led the Municipal Court to conclude, on 17 April 2003, that he was “clearly avoiding receipt” of all court documents.

On 3 November 2005 the respondent was duly served for the first time, the summons having been sent to Kotor, Montenegro, on which occasion he was both provided with the applicant's claim against him and informed about the next hearing scheduled for 23 December 2005.

On 21 December 2005 the applicant's lawyer informed the Municipal Court that she could not attend that hearing.

The applicant maintained that during the proceedings in question the presiding judge had stated publicly that she would either rule in favour of the respondent or dismiss the applicant's claim on procedural grounds. The Government contested this submission.

In early 2006, the presiding judge was replaced by another and the case itself taken under review by the Municipal Court's Special Committee for Family Relations.

On 31 March 2003, inter alia, the applicant complained to the President of the Municipal Court, requesting that the presiding judge in her case be removed.

She claimed that the judge in question had tried to serve the respondent via regular mail only but had failed to attempt to do so through the bailiffs, as envisaged by the Civil Procedure Act (see paragraph 60 below).

Further, despite the fact that it was up to the courts to establish the respondent's correct address, she pointed out that on 31 March 2003 the judge had ordered her specifically to provide the court with the address in question, in default of which her claim would be dismissed.

Finally, the applicant alleged that the judge herself had indicated that she did not know what to do with the case and that the best solution would have been for the applicant to withdraw her claim. The Government contested this submission.

On 11 April 2003 the applicant's motion was rejected by the President of the Municipal Court.

On 23 July 1999 the Municipal Court ordered the respondent to facilitate the applicant's access to S.M., twice a month, until the adoption of a final decision on the merits of the case.

On 19 October 1999 the applicant filed a submission with the Municipal Court, stating that the respondent had refused receipt of the said decision and requesting that he be served formally in accordance with the relevant provisions of the Civil Procedure Act (see paragraph 60 below).

On 8 November 1999 and 19 February 2001, respectively, the applicant sent two separate requests to the Municipal Court, seeking effective enforcement of the interim access order.

On 23 October 2001 the applicant's lawyer withdrew her request of 8 November 1999.

On 4 June 2002 the bailiffs attempted to enforce the said interim access order but, apparently, there was no one to be found at the respondent's address. This enforcement would appear to have been envisaged by means of a seizure of the respondent's movable assets and their subsequent sale, the proceeds of which would then have been used to cover the fine apparently imposed on the respondent for his failure to comply with the order in question (see paragraph 65 below).

On 5 September 2002 the applicant filed another complaint with the Municipal Court, seeking effective enforcement.

From 25 October 2002 until August 2005 the bailiffs tried again, on a number of occasions and at several different addresses, but to no avail.

On 26 August 2005 the applicant was ordered by the Municipal Court to provide the respondent's correct address.

On 10 February 1999 a medical clinic (“Klinički centar Srbije”) attested that the applicant was HIV positive but that she was being treated and was feeling well. The clinic added that there was no reason why she should not be allowed to see S.M.

On 16 March 1999, 18 March 1999 and 21 May 2001, respectively, medical opinions to the same effect were again issued by the said clinic, as well as two other medical institutions (“Specijalistička poliklinika za građanska lica” and “Institut za infektivne i tropske bolesti”).

The opinion of 21 May 2001 was addressed expressly to “the competent Social Care Centre”.

The applicant stated that she had frequently seen the respondent in the streets of Belgrade throughout the period in question and pointed out that he had also appeared in a television programme on several separate occasions.

The applicant further noted that she was informed by the Social Care Centre that the respondent had publicly stated that he did not want to be bothered by any legal proceedings and, in addition, that he had told S.M. that her mother, the applicant, had died.

It would appear that the Municipal Court held a hearing on 30 March 2006 and that it did so in the respondent's absence given that he had been duly served at one of his addresses in Belgrade.

On 8 May 2006 the Kotor Police Department informed the Municipal Court that the respondent could not be found at his address in Kotor but that his neighbours had said that he had moved back to Belgrade.

At the hearing held on 22 May 2006, the applicant informed the Municipal Court that the respondent had re-registered his former company and that its seat was now in Belgrade. She then went on to provide the court with this address, as well as the current address of the respondent's parents, and stated that S.M. was in fourth grade in one of the primary schools in Belgrade.

On 23 May 2006 the Municipal Court sent a letter to the Commercial Entities Registration Agency (“Agenciji za privredne registre”) and the tax authorities, seeking information about the respondent's income and his tax situation, as well as whether the respondent was the owner, founder, manager or deputy manager of the said company.

On 12 June 2006 the Municipal Court was informed that the respondent was indeed the manager of the company in question.

The next hearing was scheduled for 28 June 2006 and the court summonses in this respect were sent both to the respondent's address in Kotor and to his address in Belgrade, via the Kotor and Belgrade police departments, respectively.

On 30 March 2006, 23 May 2006 and 7 June 2006, the Municipal Court urged the competent Social Care Centre to “finalise” its report and submit a proposal as to who should get custody of S.M.

The Municipal Court thereafter obtained the medical reports concerning the applicant's health of 16 March 1999 and 21 May 2001, respectively (see paragraph 34 above), as well as a new report produced by the Infectious and Tropical Diseases Institute (“Institut za infektivne i tropske bolesti”) - Centre for HIV/AIDS of 12 April 2006, stating that there was no medical reason why the applicant should not be granted custody of S.M.

On 28 June 2006 the Municipal Court heard the applicant and ordered the Social Care Centre to produce its report as to who should be given custody of S.M.

On 22 September 2006 the Municipal Court heard both the applicant and the respondent, on which occasion the latter, inter alia, stated that the former had not been honest about her medical situation, or conscientious in terms of taking medication, which seriously endangered his own life as well as that of S.M. The respondent thus proposed that the applicant's health be reassessed and the Municipal Court, having so ordered, scheduled the next hearing for 22 December 2006.

On 22 December 2006 the Municipal Court adjourned the hearing, stating that the case file was still with the District Court which was about to rule in respect of the respondent's appeal filed against the interim custody order issued on 15 June 2006 (see paragraphs 50 and 52 below).

The Municipal Court scheduled the next hearing for 12 March 2007.

On 15 June 2006 the Municipal Court granted provisional custody of S.M. to the applicant and ordered the respondent to surrender the child, pending a final decision in the ongoing civil suit. In its reasoning, inter alia, it found that: i) the respondent had made it clear, from the outset, that he would “not allow” the applicant to have contact with S.M. because of his fear that she might also be “infected” with HIV; ii) the applicant was, despite the respondent's claims to the contrary, a responsible and motivated parent whose medical condition was stable, constantly under review, and who presented no danger to S.M.; and iii) the respondent had not only failed to comply with his obligation to inform the court of his correct address but had in addition, for many years, deliberately avoided receipt of court summonses which, in turn, had resulted in the applicant being denied all contact with S.M. and indicated a gross disregard for the interests of S.M. on his part. Finally, the execution of this order was not to be deferred pending any appeal filed against it.

On 20 July 2006 the applicant requested enforcement of the above order and again provided the Municipal Court with the respondent's various addresses.

On 5 October 2006 the respondent filed an appeal.

On 22 November 2006 the applicant complained to the President of the Municipal Court, seeking speedy enforcement.

On 13 November 2006 the District Court accepted the respondent's appeal, quashed the impugned order and instructed the Municipal Court to re-examine the issue of the applicant's interim custody.

In July 2006 the applicant filed a separate civil claim against the respondent, seeking the removal of his parental rights. These proceeding were also brought before the Municipal Court and were at the time of adoption of this judgment apparently still ongoing.

Articles 310b, 390 and 391 provided that all maintenance-related suits and child custody enforcement proceedings were to be dealt with by the courts urgently.

Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim is filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days.

Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim is filed and second instance courts must decide on appeal within 15 days.

This Act entered into force on 1 July 2005 and thereby repealed the Marriage and Family Relations Act referred to above.

The relevant provisions of this Act provided as follows:

“The court shall appoint a temporary representative to [act on behalf of] the respondent if it finds, in the course of the proceedings before the court of first instance, that the regular procedure for appointment of ... [such a representative] ... could last too long, resulting in harmful consequences for one or both parties.

Under the conditions set forth in Paragraph 1 of this Article, the court shall appoint a temporary representative ...

4) when the place of residence of the respondent is unknown and the respondent has no counsel ...”

“Written pleadings ... [including initial claims aimed at the institution of court proceedings] ... must state ... the name, occupation and the permanent or current address of the parties ...”

“ ... [C]ourt documents shall primarily be delivered through regular post but may also be delivered by a designated court employee [“the bailiff”] ... or directly in court.”

“If the person to whom a court document is to be delivered does not happen to be [at home], the delivery shall be accomplished by serving the court documents on an adult member of his [or her] household who must receive them. If such persons also happen not to be [at home], the ... [court documents shall be served on] ... the building manager or neighbour, if they agree.

If the delivery is to be performed at the office of a person who does not happen to be there, it may be accomplished by serving the court documents on a person working in the same office, if that person so agrees.”

“A complaint ... [as well as] ... a court decision against which a separate appeal may be filed shall be delivered to ... [the respondent] ... in person ...

If a person who is to be served ... does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in Article 141, paragraphs 1 and 2 of this Act, requesting that he [or she] be present on a certain day and hour in his [or her] flat or office. If the bailiff does not find the person to be served even after this, he [or she] shall proceed in accordance with the provisions of Article 141 of this Act and the delivery shall thus be considered as having been carried out.”

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

“When a party ... changes its place of residence or moves to another flat ... [prior to the adoption of the final decision in the proceedings] ... [it] ... shall immediately inform the court thereof.

If ... [it] ... fails to do so and the bailiff is unable to establish ... [its] ... new flat or place of residence, the court shall order that all further deliveries in respect of this party be posted on the court's own notice board.

Eight days ... [thereafter] ... the delivery at issue shall be deemed duly accomplished.”

“The court shall invite a party ... who ... [is] ... abroad and does not have a representative in ... [Serbia] ... to ... authorise ... [another person] ... to receive all ... [Serbian court-related correspondence] ... If the party ... fails to do so, the court shall appoint ... [such a person] ... on a temporary basis ... and at the party's own expense ...”

“If a party is unable to establish the address of a person to whom the delivery is to be made, the court shall attempt to obtain relevant information from ... [other State bodies] ... or in some other way.”

The substance of Articles 79 § 2 (4), 100 § 2, 127, 135, 136, 138, 139 and 141 of this Act corresponds, in the relevant part, to that of the provisions of the Civil Procedure Act quoted above.

In addition, Article 140 provides that, should “normal” delivery during the course of the proceedings prove to be unsuccessful, all court documents shall be posted on the court's own notice board and that eight days thereafter the delivery at issue shall be deemed duly accomplished.

Finally, under Article 394 and 396, parties may file an appeal on points of law (“revizija”) with the Supreme Court. They may do so under certain very specific conditions only and against a final judgment rendered at second instance.

This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act referred to above.

Article 209 of the Enforcement Procedure Act of 2000 (Zakon o izvršnom postupku; published in OG FRY nos. 28/00, 73/00 and 71/01), while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the Social Care Centre. Finally, under Article 7 of the same Act, only the enforcement order and the court's decision in respect of any complaints filed against this order shall be served in accordance with the relevant civil procedure rules. In all other instances the court's own notice board shall be made use of for this purpose.

The Enforcement Procedure Act of 2004 (Zakon o izvršnom postupku; published OG RS no. 125/04) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act of 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act of 2000.

The relevant provisions of this Act read as follows:

“A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.”

“The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his duty.

The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court.

The President of a higher instance court may order a direct inspection of the work of a lower instance court.”

“When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint.

If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.”

Under Article 8, inter alia, the President of a court must ensure that the court's work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving his or her decision and, if necessary, ordering that steps be taken to remedy the situation.

Article 4, inter alia, provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days.

“The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”).

This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.”

“In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.

Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.”

Article 172 § 1 provides that a legal entity (“pravno lice”), which includes the State, is liable for any damage caused by one of “its bodies” (“njegov organ”) to a “third person”.

Under Articles 199 and 200 of the Obligations Act, inter alia, anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“prava ličnosti”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.

Article 134 § 1 provides, inter alia, that “whoever” by means of “deceit” removes or holds another with the intent to ... coerce” him or her, or another person, to “endure something” shall be sentenced to a prison term of one to ten years.

Under Article 191 anyone who, inter alia, obstructs the enforcement of a child custody decision shall be fined or sentenced to a prison term not exceeding two years.

Article 340 states that “an official or another 'person in charge' who refuses to enforce a final court decision, or does not enforce it within the period prescribed by law or a period set forth in the decision itself, shall be fined or sentenced to a prison term not exceeding two years”.

The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).


The applicant, Mr Martin Reilly, is a United Kingdom national, born in 1958, and he is currently in prison in Kent.

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

On 8 February 1993 the applicant was convicted on two counts of robbery, one of attempted robbery, one of carrying an imitation firearm and one of using a firearm to resist arrest. He was sentenced to five concurrent sentences amounting to 8 years’ imprisonment.

On 4 March 1999 he was convicted of two charges of robbery and two of carrying imitation firearms. He received a life sentence pursuant to section 2 of the Crime Sentencing Act 1997 and his tariff was fixed at 6 years. In sentencing, the judge stated that 12 years would have been the appropriate determinate sentence in his case and referred to the terror experienced by the victims of the robberies and the long-term traumatic effects.

The applicant did not seek leave to appeal against sentence. His application for permission to appeal against conviction was refused by the Court of Appeal on 17 October 2000.

The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows:

“(1) This section applies where -

(a) a person is convicted of a serious offence committed after the commencement of this section; and

(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2) The court shall impose a life sentence, that is to say -

(a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.”

Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape.

In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act.

The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence.

Noting that in the earlier case of Buckland [2000] 1 WLR 1262 an appeal had already been allowed where on the evidence it could not be concluded that the defendant did not present a serious and continuing danger to the public such as could justify the imposition of a life sentence, it considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention.


No violation of Art. 3;Violation of Art. 13;Remainder inadmissible (other aspect of the Art. 3 complaint);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in 1979 and is currently detained in the Ankara Prison

On 23 May 1999 at about 3 p.m. the applicant, who was working for a newspaper called Kurtuluş, was taken into police custody in the district of Almus in the province of Tokat by police officers on suspicion of membership of an illegal organisation, namely the DHKP/C (Revolutionary People’s Liberation Party-Front). At about 5 p.m. she was taken to the Almus State Hospital, where a medical report was issued. In the report, the presence of a 0.5 x 1 cm. abrasion under the right eye was noted. It was stated that this abrasion had probably been caused as a result of an irritation. The medical report further indicated that there were no signs of ill-treatment on her body.

On the same day, the applicant was transferred to the province of Tokat to be interrogated by the Anti-Terrorism Branch of the Tokat Security Directorate. Before being taken to the Security Directorate Building, at about 7.45 p.m. the applicant was sent to the Tokat State Hospital for a medical examination. The medical report indicated the presence of a hyperaemia under the right eye and an abrasion on the right side of the nose. Thereafter at about 8.10 p.m. the applicant was taken to the Tokat Maternal Hospital for a gynaecological examination with a request to establish her virginity status. As she did not give her consent, the applicant did not undergo a gynaecological examination. At 9 p.m. the applicant was taken once again to the Tokat State Hospital, this time for a rectal examination. As the applicant refused to be examined, no rectal examination was performed.

On 30 May 1999 before being released from custody, the applicant was taken to the Tokat Maternal Hospital for a gynaecological and rectal examination. As she did not give her consent, the doctors did not perform the examinations. Subsequently, she was taken to the Tokat State Hospital, where she was examined by a doctor. According to the doctor’s report, no signs of ill-treatment were observed on the applicant’s body.

On 30 May 1999 the applicant was brought before the Tokat public prosecutor. Before the public prosecutor, she denied the allegations against her and maintained that her police statement, dated 29 May 1999, had been taken under duress. She stated that she had been hosed with cold water, subjected to electric shocks and Palestinian hanging.

The same day the applicant was further brought before the investigating judge at the Tokat Magistrate’s Court where she repeated her statement taken by the prosecutor. The investigating judge decided to place her in detention on remand on account of the evidence in the file and the nature of the offences against her.

On 31 May 1999 the Tokat public prosecutor declined jurisdiction and transferred the case to the public prosecutor at the Ankara State Security Court.

In an indictment dated 15 June 1999, the Ankara State Security Court Public Prosecutor initiated criminal proceedings against the applicant and accused her of being a member of an illegal organisation.

On 12 August 1999 the applicant sent a letter to the court and retracted her statement made to the police, alleging that it was taken under duress. In this letter, she explained in detail the various forms of ill-treatments she had been allegedly subjected to in custody. In particular, she maintained that during her police custody she had been stripped naked, threatened with rape, beaten, hosed with cold water, subjected to electric shocks and hung from her arms.

On 11 July 2000 the Ankara State Security Court found that the applicant had been continuously working for the said illegal organisation. It therefore found the applicant guilty as charged under Article 168 of the Criminal Code and sentenced her to twelve years six months’ imprisonment.

On 4 April 2001 the applicant submitted her appeal petition to the Court of Cassation. While challenging the decision of the first-instance court, she particularly referred to her ill-treatment under custody. She also stated that she had been taken to the hospital on two occasions during her police custody to undergo a gynaecological examination. She alleged that this treatment constituted degrading treatment.

On 25 April 2001 the Court of Cassation, upholding the Ankara State Security Court’s reasoning and assessment of evidence, rejected the applicant’s appeal.


Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in 1967 and 1968 respectively and live in Vienna.

On 8 February 1996 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the first applicant under Article 209 of the Criminal Code (Strafgesetzbuch) of homosexual acts with adolescents and sentenced him to one year's imprisonment suspended on probation for a period of three years. Relying mainly on the first applicant's diary, in which he had made entries about his sexual encounters, the court found it established that between 1989 and 1994 the first applicant had had, in Austria and in a number of other countries, homosexual relations either by way of oral sex or masturbation with numerous persons between 14 and 18 years of age, whose identity could not be established.

On 5 November 1996 the Supreme Court (Oberster Gerichtshof), upon the first applicant's plea of nullity, quashed the judgment regarding the offences committed abroad.

On 29 January 1997 the Vienna Regional Criminal Court resumed the proceedings, which had been discontinued as far as the offences committed abroad were concerned, and found the first applicant guilty under Article 209 of the Criminal Code of the offences committed in Austria, sentencing him to eleven months' imprisonment suspended on probation for a period of three years.

On 27 May 1997 the Supreme Court dismissed the first applicant's plea of nullity in which he had complained that the application of Article 209 of the Criminal Code violated his right to respect for his private life and his right to non-discrimination and had suggested that the Supreme Court request the Constitutional Court to review the constitutionality of that provision.

On 31 July 1997 the Vienna Court of Appeal (Oberlandesgericht), upon the first applicant's appeal, reduced the sentence to eight months' imprisonment suspended on probation for a period of three years.

On 21 February 1997 the Vienna Regional Criminal Court convicted the second applicant under Article 209 of the Criminal Code of homosexual acts with adolescents, and on one minor count of misappropriation. It sentenced him to six months' imprisonment suspended on probation for a period of three years. The Court found it established that on one occasion the second applicant had had oral sex with a 15-year-old.

On 22 May 1997 the Vienna Court of Appeal dismissed the second applicant's appeal on points of law, in which he had complained that Article 209 of the Criminal Code was discriminatory and violated his right to respect for his private life and had suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. It also dismissed his appeal against sentence. The decision was served on 3 July 1997.

Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code.

Article 209 of the Criminal Code, in the version in force at the material time, read as follows:

“A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.”

This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable.

Offences under Article 209 were regularly prosecuted, an average of sixty criminal proceedings being opened per year, out of which a third resulted in a conviction. As regards the penalties applied, a term of imprisonment usually exceeding three months was imposed in 65 to 75% of the cases, of which 15 to 25% were not suspended on probation. According to information given by the Federal Minister of Justice in reply to a parliamentary question, in the year 2001 three persons were serving a term of imprisonment based only or mainly on a conviction under Article 209 of the Criminal Code and four others were held in detention on remand in proceedings relating exclusively to charges under Article 209.

On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see below), Parliament decided to repeal Article 209. It also introduced Article 207b, which penalises sexual acts with a person under 16 years of age if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises inducing persons under 18 years of age to engage in sexual activities in return for payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.

According to the transitional provisions, the amendment does not apply to criminal proceedings in which the judgment at first instance has already been given. It does exceptionally apply, subject to the principle of the application of the more favourable law, where a judgment is set aside, inter alia, following the reopening of the proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from these situations, convictions under Article 209 remain unaffected by the amendment.

In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. That judgment was given upon the complaint of a person who subsequently brought his case before the Commission (see Zukrigl v. Austria, no. 17279/90, Commission decision of 13 May 1992, unreported).

The relevant passage of the Constitutional Court's judgment reads as follows:

“The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.”

On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code.

The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations.

On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.

The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality under constitutional law and with Article 8 of the Convention, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified.

In the spring of 1995 the Social Democratic Party, the Green Party and the Liberal Party brought motions in Parliament to repeal Article 209 of the Criminal Code. They argued in particular that in the 1970s the legislator had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not. However, modern science had shown that sexual orientation was already established at the beginning of puberty. Moreover, different ages of consent were not in line with European standards. In this connection they referred in particular to Recommendation 924 (1981) of the Parliamentary Assembly of the Council of Europe which had advocated equal ages of consent for heterosexual and homosexual relations. Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of the Criminal Code, irrespective of their sexual orientation.

Subsequently, on 10 October 1995, a sub-committee of the Legal Affairs Committee of Parliament heard evidence from eleven experts in various fields such as medicine, sexual science, Aids prevention, developmental psychology, psychotherapy, psychiatry, theology, law and human rights law. Nine were clearly in favour of repealing Article 209, an important argument for the experts in the fields of medicine, psychology and psychiatry being that sexual orientation was, in the majority of cases, established before the age of puberty, which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences. Another recurring argument was that penalising homosexual relations made Aids prevention more difficult. Two experts were in favour of keeping Article 209: one simply stated that he considered it necessary for the protection of male adolescents; the other considered that despite the fact that there was no such thing as being recruited into homosexuality, not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity.

On 27 November 1996 Parliament held a debate on the motion to repeal Article 209 of the Criminal Code. Those speakers who were in favour of repealing Article 209 relied on the arguments of the majority of the experts heard in the sub-committee. Of those speakers who were in favour of keeping Article 209, some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation. There was an equal vote at the close of the debate (ninety-one to ninety-one). Consequently, Article 209 remained on the statute book.

On 17 July 1998 the Green Party again brought a motion before Parliament to repeal Article 209 of the Criminal Code. The ensuing debate followed much the same lines as before. The motion was rejected by eighty-one votes to twelve.

On 10 July 2002 Parliament decided to repeal Article 209 of the Criminal Code (see paragraph 21 above).