CASE OF GERA DE PETRI TESTAFERRATA BONICI GHAXAQ v. MALTA

Violation of Art. 6-1;Violation of P1-1;No violation of Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - award

Joseph Zammit Mckeon;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1949 and lives in Balzan, Malta.

The applicant is the owner of a property, known as Palazzo Bonici, in Valetta. She partly owns some of the ground floor shops, and entirely owns the house, from the rest of the ground floor and the basement to the top floors.

The property had been damaged during the Second World War and the applicant's ancestors, from whom she inherited the property, had on 11 January 1945 applied to the War Damage Commission to obtain the necessary funding to have the property restored. At the time, the building consisted of a large eighteenth century town house including a few rooms on the ground floor which were rented out as shops. Between 1945 and 1950 the War Damage Commission had paid out a sum corresponding to EUR 1,307, for the premises excluding the shops in respect of which no amount had been paid as a consequence of undefined claims. According to the applicant the sums awarded covered expenses for required temporary works to secure the premises, as had originally been claimed, and not the entire works to repair the whole of the property. While the Government contended that, despite the payments, the building was left in a state of neglect, the domestic courts acknowledged that the applicant had attempted to reconstruct the damaged area (page 21 of the Constitutional Court judgment of 8 January 2007)

In 1958 the then Colonial Government issued an order taking control of the property under title of possession and use, that is, a forced temporary taking of property subject to the payment of annual compensation, known as a “recognition rent”, to the owners.

Despite this order, the applicant's ancestors refused to hand over the keys of the building. Thus, the property was left unused until 1972 when the building was forced open by the Government, by which time it had deteriorated considerably.

In 1972 the Government commenced works to repair the property with a view to using it as a cafeteria and offices in conjunction with the Manoel Theatre situated nearby. The Government evicted the tenants of the shops on the ground floor which had been leased on the basis of controlled rents, and a hall in the upper floors was converted into a performance hall for small audiences. Subsequently a theatre restaurant was housed in the basement of the building and another floor was added to house the foundation for Maltese patrimony “Fondazzjoni Patrimonju Malti”, a Government foundation promoting national heritage, which also serves as a commercial company dealing in publications.

On 5 August 1976 the Government issued a “notice to treat” by which the owner was informed that the compensation offered by way of recognition rent amounted to 210 Maltese Liras (MTL – approximately 490 euros (EUR)). The amount was based on the 1914 rental value (according to rent laws relating to renting of residences – not commercial premises – in force at the time) increased by 40 % to allow for inflation. By a judicial letter of 1976 the applicant's ancestors rejected the offer and in the same year the Commissioner of Lands instituted compensation proceedings before the Land Arbitration Board (“LAB”). These proceedings were suspended sine die on 10 October 1996 (see Annex A for a detailed chronological list of hearings in the proceedings). Pending these proceedings, the applicant inherited the property of which she gained possession by public deed on 26 March 1990. The applicant submitted that even if these proceedings had been concluded, the LAB would have been unable to establish a fair rent reflecting market values, since it was bound by law to assess rent on the basis of 1914 rental values.

After repairing the property the Government allocated it and entrusted its management to the Manoel Theatre Management Committee (“MTMC”), the organ of the Ministry of Culture and Education which administers the Manoel Theatre. It rented the property to a number of commercial entities, including offices, cafeterias, reception halls, a restaurant and a publishing house. According to the Government, the economic income received by the MTMC per year amounted to approximately EUR 13,000 and the Government had spent EUR 735,115 restoring the building and meeting its maintenance costs.

In 1996 the applicant instituted constitutional redress proceedings in which she brought complaints under Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention. She complained that the property, estimated at the time to be worth MTL 880,000 (approximately EUR 2,050,000), was not used for a public purpose, that she had not been offered fair compensation, that the proceedings pending before the LAB were taking an unreasonably long time to be decided and that she had been discriminated against vis-à-vis other property owners who, unlike her, had their properties expropriated by outright purchase and not subject to the less favourable forced rents. She requested the court to grant adequate redress and to award damages.

On 18 January 1999 the Civil Court (First Hall) found for the applicant. It declared the taking null and void, as the property was not being used for a public purpose, and therefore contrary to the Convention. It further found a violation of the applicant's right to a fair hearing within a reasonable time. It considered that the period to be taken into account started running on 25 February 1958, the date when the applicant's right to compensation arose, and had not yet ended forty years later. It noted that it had taken the Government eighteen years to issue a “notice to treat” without which compensation proceedings could not be initiated. This, together with the lack of initiative of the Commissioner of Lands to pursue those proceedings, was enough to allow it to conclude that the applicant had suffered a serious prejudice, incompatible with Article 6 of the Convention, over the forty years during which she had been left without compensation. It declared that it was not necessary to examine the Article 14 complaint. The issue of payment of damages in respect of the violation of Article 6 (which depended on the value of the property) was reserved.

The Government appealed against the above-mentioned judgment.

The applicant submitted that during the proceedings, lasting eight years, the judges were replaced several times and there had been numerous adjournments (see Annex B for a detailed chronological list of hearings in the proceedings).

On 8 January 2007 the Constitutional Court upheld the first-instance judgment in part. It held that there had been a violation of Article 1 of Protocol No.1 to the Convention, in that a proper balance had not been preserved between the private interest and the public need. While it was true that the commercial purposes of the taking appeared to have superseded the original purpose, it was in the light of the compensation offered to the applicant (EUR 490 yearly rent for a property valued at approximately EUR 1,863,500) and the fact that she had been deprived of her property for nearly fifty years, that she had been made to bear a disproportionate burden. The fact that the property had been refurbished by the State had little bearing on this conclusion, although it could be relevant in determining the compensation terms. It declared the Governor's declaration of 1958 null and void and ordered the Government to release the property. The Constitutional Court, however, found that there had not been a violation of Article 6 in respect of the length of the proceedings. It was true that the proceedings had been lengthy, the “notice to treat” having been issued only eighteen years after the taking of the property and the proceedings before the LAB having not yet been concluded. However, the court noted that the time to be considered started running after the Convention took effect in respect of Malta, namely on 30 April 1987 (when Malta introduced the right of individual petition) and the applicant had failed to submit evidence of what had caused the delay after 1987. As to the Article 14 complaint, the court held that it had been misconceived, since the first-instance court had not examined it. As to the adequacy of compensation, it confirmed that the release of the property was an adequate remedy for the violation of Article 1 of Protocol No.1 to the Convention, and the reservation of the issue of compensation by the first court was related to the Article 6 complaint, which had not been upheld on appeal. However, it reserved any rights the applicant might wish to assert in respect of compensation for the “possession and use” of the premises during the relevant period.

On an unspecified date following this judgment, the applicant obtained an eviction order against the Government. However, prior to its enforcement, on 22 January 2007, the Government issued a fresh order, this time under title of public tenure in accordance with the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”). Included in the taking were a number of shops and offices adjacent to Palazzo Bonici, of which the applicant owned an undivided share together with third parties. The Government offered an annual recognition rent of MTL 21,000 (approximately EUR 49,000), basing it on section 22 (11) (c) of the Ordinance (see “Relevant Domestic Law” below), without indicating what portion of this amount was due for the applicant's house, of which she was the sole owner.

According to an architect's valuation, the present day rental value of Palazzo Bonici, excluding the other adjacent property, amounts to MTL 110,000 (approximately EUR 256,000) per year. The market value in the case of sale is estimated to be MTL 2,200,000 (approximately EUR 5,125,000); the Government, however, estimate it to be only MTL 1,500,000 (approximately EUR 3,494,000).

On an unspecified date, the applicant lodged ordinary proceedings (327/07 - ATB 10), complaining that the new taking of the property under public tenure had been unlawful, as it was not permissible under the Land Acquisition Ordinance to take property by means of public tenure if it was not already being used by the Government.

At the request of the Government the eviction order was suspended pending the outcome of those proceedings.

On the date of introduction of this application the proceedings were still pending. The Civil Court, in its ordinary jurisdiction, gave judgment in the case on 11 November 2008. The latter held that the taking of the property by public tenure had been ultra vires and was therefore null and void. An appeal was lodged on 19 November 2008 and the case is still pending.

On an unspecified date the applicant lodged further constitutional redress proceedings (23/07 - ATB 10 A), claiming that the taking of the property under public tenure breached Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention.

She claimed that the taking had not been in the public interest as the property was mainly being used for commercial purposes in relation to the Theatre, even though the Government had at their disposal other properties in the vicinity which could have served the same purpose. She also claimed that the inadequate compensation offered by the Government was arbitrary and not in accordance with the law. Compensation for the taking of a property under public tenure had to be calculated on the basis of section 27 (13) of the Ordinance and not section 22 (11) (c), which applied where property taken under “public tenure” was converted by absolute purchase (see the Relevant Domestic Law below). Although it could be supposed that the Government's offer amounted to more than what was applicable by law, it did not reflect the real current market value, since the calculations had been based on rental values applicable in 1939. Even assuming that the offer comprised compensation for Palazzo Bonici alone and not the adjacent properties, it still represented a fifth of its real value on the market; therefore, it did not constitute adequate compensation and the applicant was being made to bear an excessive burden. She further claimed that the decision to take her property under public tenure had been arbitrary and discriminatory. At the time only four other properties had been taken under this title, as opposed to outright purchase. All the properties had already been in the possession of the Government under a different title and were all related to slum clearance and housing projects, unlike the applicant's. Finally, she complained that the taking was in breach of Article 6, in that she was not given a fair hearing within a reasonable time, as she had no real and effective possibility of having the value of her property determined by a court. Notwithstanding the Constitutional Court judgment in her favour, in these circumstances the applicant remained without an effective remedy.

These proceedings are still pending.

Compensation for damage arising from the violation of Article 1 of Protocol No. 1

On 15 January 2007 the applicant requested the Civil Court (First Hall) to determine the claim (537/1996) for the compensation due for the violation of Article 1 of Protocol No. 1 in accordance with Article 235 of the Code of Organisation and Civil Procedure (“COCP”). On 29 November 2007 the Civil Court (First Hall) rejected the applicant's claim. It held that the Civil Court had only reserved the matter of compensation in relation to Article 6, of which no violation had been found by the Constitutional Court, which had also found that declaring the taking null and void was a sufficient remedy for the violation of Article 1 of Protocol No. 1. Thus, the Constitutional Court's judgment of 8 January 2007 had been final, the applicant's claims having been decided in their entirety, except for the reservation in respect of payment due for the possession and use of the land for the relevant period, which was subject to ordinary civil remedies. In consequence Article 235 of the COCP did not apply to the present case.

That finding was confirmed on appeal by a judgment of the Constitutional Court of 29 February 2008.

Compensation for damage arising from the possession and use of the premises

On 6 December 2007 the applicant instituted proceedings against the Commissioner of Lands (1281/07) for damage arising from the loss of possession and use of the premises in the light of the Constitutional Court's judgment of 8 January 2007 finding a violation of Article 1 of Protocol No. 1 to the Convention. On 10 June 2010, the court having established that such a decision had not been taken by any other court and that the domestic courts had particularly stated that such a measure had to be sought before the ordinary domestic civil courts, took cognisance of the case and ordered the submission of the relevant evidence.

The proceedings are still pending.

Section 22 (11) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, reads as follows:

“The compensation due for the acquisition by absolute purchase of any land, and the sum to be deposited in accordance with this article shall be:

(c) in the case of conversion from public tenure into absolute purchase a sum arrived at by the capitalisation at the rate of one point four per centum of the annual recognition rent due under the provisions of this Ordinance.”

Section 27 of the Ordinance relates to the assessment of compensation by the Land Arbitration Board. Subsection 13, reads as follows:

“The compensation in respect of the acquisition of any land held by way of public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land.”


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

André Potocki;Karel Jungwiert;Mark Villiger

The applicant was born in 1920 and lived in Kyiv, Ukraine, and in Yerevan, Armenia.

From 1947 to 1966 the applicant was married to M. Mrs Sardaryan was born during the marriage. The applicant and M. divorced in 1966. On 11 August 1984 they remarried.

On 12 January 2007 the applicant died and Mrs Sardaryan inherited her rights and obligations.

On 2 April 2007 M. died and Mrs Sardaryan inherited his rights and obligations.

On 22 November 1996 M. instituted divorce proceedings in the Moskovskiy District Court of Kyiv against the applicant.

On 6 May 1997 M. amended his claims and requested a declaration that the marriage of 1984 was void. Subsequently he modified and withdrew his claims on several occasions.

On 24 March 1998 the court declared the marriage void. The applicant appealed.

On 29 April 1998 the Kyiv City Court (since 2001 the Kyiv City Court of Appeal) quashed this judgment on the ground that the lower court had failed to examine the initial claims of M. and to establish crucial facts, and remitted the case for fresh consideration.

On 26 June 1998 the applicant submitted a counterclaim, seeking a divorce.

On 27 July 1998 the Moskovskiy District Court granted the divorce petition in respect of M. and the applicant. M. appealed.

On 9 September 1998 the Kyiv City Court quashed this judgment on the lower court’s failure to assess properly the evidence and remitted the case for fresh consideration.

On several occasions the Kyiv City Court transferred the case from one trial court to another for further examination: in September 1998 to the Zaliznychniy District Court of Kyiv; in October 1999 to the Starokyivskiy District Court of Kyiv; and, eventually, on 20 January 2000 to the Kharkivskiy District Court of Kyiv (in 2001 this court was reorganised into the Dniprovskiy and Darnytskiy District Courts of Kyiv).

On 4 July 2001 the court found for M. and declared the marriage with the applicant void. The applicant appealed.

On 4 December 2001 the Kyiv City Court of Appeal quashed this judgment and remitted the case for fresh consideration to the Dniprovskiy District Court of Kyiv. It noted, inter alia, that although the trial court had examined the case in the applicant’s absence, it had failed to take into account her written pleadings, which were important for a fair examination. M. appealed in cassation against this decision but on 7 March 2002 the Supreme Court of Ukraine dismissed his appeal.

On 26 April 2002 the Dniprovskiy District Court resumed the proceedings.

On 23 May 2003 the court granted divorce to M. and the applicant. The hearing was held in M.’s absence. M. appealed.

On 18 November 2003 the Kyiv City Court of Appeal quashed the judgment on the ground that the trial court had failed to examine whether the absence of M. was for good reasons or not and remitted the case for fresh consideration.

On 12 December 2003 the Dniprovskiy District Court resumed the proceedings.

On 17 March 2005 the court rejected M.’s claim to have the marriage declared void and dismissed the applicant’s claim because she had failed to attend the hearing.

On 28 July 2005 and 21 May 2007 respectively, the Kyiv City Court of Appeal and the Donetsk Regional Court of Appeal, acting as a court of cassation, dismissed M.’s appeals.

A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties’ requests, referring to their poor state of health or their failure to appear before the court. In her requests to adjourn the hearings the applicant, who, it appears from the available documents, was represented, requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery. The trial courts stayed the proceedings several times pending the parties’ recovery. The courts further warned the parties that they would examine the case in the respective party’s absence; on one occasion the court fined the applicant for non-attendance, but this decision was later quashed upon the applicant’s appeal.

According to the applicant, she did not appeal against the judgment of 17 March 2005 but in August 2005 she instituted new and separate divorce proceedings in the Golosiyivsky District Court of Kyiv. On 14 March 2006 the court divorced the applicant and M.

In 1986 the applicant’s family was granted tenancy of a publicly owned two-roomed apartment. On 28 November 1991 M., with the applicant’s consent, bought the apartment from the local municipal authority.

On 25 November 1996 the applicant instituted proceedings in the Moskovskiy District Court of Kyiv against M., seeking to declare the above sale contract void.

On 15 November 1996 the court attached the apartment in question.

In March 1997 the applicant amended her claims, claiming ownership of half of the apartment.

In April 1997 M. forcibly evicted the applicant from the apartment. The applicant moved to Yerevan, Armenia, and resided there until her death.

On 29 May 1997 the Moskovskiy District Court stayed the proceedings pending determination of the divorce proceedings.

In the period between 22 October 1999 and January 2000 the case was transferred to the Starokyivskiy and Kharkivskiy District Courts of Kyiv, following the relevant decisions by the Kyiv City Court.

On 31 January 2000 the Kharkivskiy District Court of Kyiv, having taken over the case, decided to stay the proceedings pending determination of the divorce proceedings.

On 29 August 2002 the Golosiyivskiy District Court of Kyiv (before October 2001 the Moskovskiy District Court of Kyiv) lifted the attachment order on this apartment as “the main dispute had been resolved”. According to the applicant, neither she nor her representative were present at this hearing. She also contended that Judge U., the president of the court, who rendered this ruling, had intervened unlawfully in the proceedings as at that moment they were pending before the Darnytskiy District Court of Kyiv (formerly the Kharkivskiy District Court of Kyiv). The applicant further pointed out that in the ruling of 29 August 2002 Judge U. had referred to a judgment which did not exist.

On 20 September 2002 M. made a gift of the apartment to K.N., a third person. On 21 February 2003 the latter sold the apartment to K.R. The applicant alleged that she only became aware of the ruling of 29 August 2002 in April 2003, when the apartment had been already sold.

On 3 April 2003 the Darnytskiy District Court (formerly the Kharkivskiy District Court of Kyiv, see paragraph 17 in fine) made an attachment order in respect of the apartment in question. On 21 June 2004 the Kyiv City Court of Appeal amended the order so that it applied to half of the apartment only. According to the applicant, neither she nor her representative was summoned to the last-mentioned hearing. On 21 March 2006 the Supreme Court of Ukraine upheld the ruling of 21 June 2004.

On 7 May 2003 the court rejected the applicant’s request to renew her the time-limit for appeal against the decision of 29 August 2002. There is no evidence that the decision of 7 May 2003 has been ever sent to the applicant. According to the applicant, she learned about it on 30 July 2004 at the latest from the letter of the Kyiv City Court of Appeal. There is no evidence that the applicant has ever tried to obtain a copy of the decision of 7 May 2003 and to appeal against it.

On 17 February 2004 the Darnytskiy District Court inquired of the Dniprovskiy District Court as to the outcome of the divorce proceedings.

On 26 June 2006 the Darnytskiy District Court resumed the proceedings.

On 12 September 2006 the applicant submitted an additional claim to declare the gift contract of 20 September 2002 and the sale contract of 21 February 2003 (see paragraph 37 above) void.

On 21 September 2006 the case was transferred for examination to the Golosiyivskiy District Court. On 18 January 2007 the Kyiv City Court of Appeal quashed this decision on an appeal by the applicant and remitted the case back to the Darnytskiy District Court.

On 16 June 2007, both parties, the applicant and M., having died, the Darnytskiy District Court stayed the proceedings until the identity of the parties’ heirs had been determined.

On 10 October 2007 Mrs Sardaryan joined the proceedings as the sole heir to both parties. She also modified the claims, seeking to have the contracts of 20 September 2002 and 21 February 2003 declared void and to have the court recognise that she owned the apartment outright. In this regard she indicated K.N. and K.R. as defendants.

On 5 November 2007 the proceedings were resumed.

On 26 June 2008 the Darnytskiy District Court found for Mrs Sardaryan. On 28 October 2008 the Kyiv City Court of Appeal upheld this decision. On 15 September 2010 the Supreme Court of Ukraine quashed these decisions and remitted the case for a fresh consideration to the first instance court. The proceedings are apparently still pending.


Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The case concerns a dispute over the succession to the estates of Mary-Ann Higgins, who died on 22 February 1961, and her husband Charles Brown-Petersen, who died on 13 March 1962. The applicants are entitled to a share in the estates of the deceased either by will or on intestacy and are all French citizens. Their names are:

In this complex succession dispute the applicants were parties to three sets of proceedings against a number of other people, including a Mr L., a notary in Papeete (French Polynesia). Those proceedings were:

(ii) a third-party application to reopen proceedings in which the Papeete Court of Appeal had on 10 September 1964 refused an application to set aside Charles Brown-Petersen’s will of 19 December 1961;

(iii) an application to have set aside as fraudulent a transfer of a property development known as the “Bloc Vaima” to the Brown Building Corporation (“BBC”) and for payment of rent and other income derived from that property since 1961.

In the last set of proceedings – the only one in issue – the Papeete Civil Court of First Instance found in favour of the applicants in a judgment of 16 December 1988. It ordered that the rent should be paid to a receiver and held that BBC had been formed for an illegal purpose. It held that the Higginses and the other applicants were in principle entitled to have the transfer set aside but deferred judgment on that point until the Court of Appeal had given its decision in the action for payment of a legacy. On 4 January 1989 BBC appealed against the judgment to the Papeete Court of Appeal (see paragraph 17 below).

While that appeal was pending, the applicants applied for transfer of the case to another court on grounds of bias.

In an application (no. T-89-15.690) registered on 1 June 1989, the applicants asked the Court of Cassation (Second Civil Division) to order transfer of the proceedings pending against BBC to a court other than the Papeete Court of Appeal. They also requested the Papeete Court of Appeal to defer judgment until the Court of Cassation had delivered its decision (see paragraph 17 below).

Before making that application, the applicants had, on 25 May 1989, made an initial application (no. N-89-15.409) to the same division of the Court of Cassation for the proceedings in the action for payment of a legacy and those relating to the third-party application, both of which were pending in the Papeete Court of Appeal, to be transferred to another court on grounds of bias (see paragraph 8 above).

The application of 1 June 1989 read as follows:

“There are currently pending before the Papeete Court of Appeal

(i) proceedings for payment of ... legacies…; and

(ii) a third-party application to reopen proceedings…

In application no. 89-15.409 registered on 25 May 1989 at the registry of the Court of Cassation the applicants requested transfer of those two sets of proceedings from the Papeete Court of Appeal to another court.

… The Higginses and the other applicants brought an action ... against the Brown Building Corporation in which they sought a declaration that the transfer of the property concerned to the company ... was fraudulent…

… the case is to be considered on the merits by the Papeete Court of Appeal; the applicants request its transfer to another court.

The applicants expressly refer to the grounds on which they relied in application no. 89-15.409. A transfer is justified for the same reasons in the proceedings against the Brown Building Corporation…”

As regards the grounds for suspecting bias, the applicants made, inter alia, the following submissions in their application of 1 June 1989:

“The Papeete Court of Appeal comprises only six members: the President, three other judges, a Principal State Counsel and an Assistant Principal State Counsel.

The applicants are entitled to question whether objectively the court that is to rule in their various proceedings against the Bambridges, Mr L. and the Brown Building Corporation – a mere emanation of the Bambridges – is impartial.

Firstly, Mr L. has held a prominent position in Papeete and enjoyed privileged, friendly relations with a number of the judicial officers of the Court of Appeal.

Several judicial officers, including some from the Court of Appeal, have enjoyed special relations with the parties for a very long time, Mr J. and Mr A. were close friends of Phineas Bambridge (at the latter’s funeral his widow was supported by Mr A.).

It has to be noted, furthermore, that the atmosphere of tranquillity in which judicial business ought necessarily to be conducted has in fact been seriously disturbed by the sudden turn of events in the case and its repercussions. In particular, the Higginses and the other applicants, aware that their share in the estate was about to be squandered, applied for – and in several cases obtained from the court of first instance – orders for some of the assets of the estate to be delivered to a receiver. They also secured a like measure over Mr L.’s assets… He reacted very violently when the measure was ordered, publicly declaring it to be ‘an act of judicial terrorism’. The local judicial officers became divided and State Counsel at the Papeete Court of First Instance reflected the disarray in an application to have the case transferred that he made to the Criminal Division on 24 September 1987.

In other words some judicial officers in Papeete, divided among themselves, whose actions have been publicly called into question and who have taken up a position on events closely connected with the proceedings, which are still pending, feel that, over and above their goodwill their impartiality may be objectively called into question and that the decisions they render may legitimately fall under suspicion…

Taken as a whole, these factors cast unacceptable doubt on the impartiality of the judicial officers of the Court of Appeal and render it ‘questionable’ or suspect.

The Court of Cassation will prefer to avoid any ambiguity or suspicion and to order that the case be removed from the Papeete Court of Appeal.”

On 22 March 1990 the Court of Cassation (Second Civil Division) held:

“As to the applications dated 25 May and 1 June 1989 … for an order for transfer on grounds of bias to a court other than the Papeete Court of Appeal of the proceedings between them and (i) the Bambridges and another, (ii) Mr L. and (iii) the Brown Building Corporation property company;

The Court …

Having considered the applications and the documents lodged with the Court of Cassation registry on 25 May and 1 June 1989 on behalf of the Higginses and the other applicants;

In their applications the Higginses and the other applicants seek transfer to another court of appeal on grounds of bias of the cases pending before the Papeete Court of Appeal to which they are parties, namely:

(1) proceedings for payment of a legacy following an appeal against a judgment of the Papeete Civil Court of First Instance dated 19 March 1986; and

(2) a third-party application to reopen proceedings with a view to securing an order setting aside a judgment of 10 September 1964 of the Papeete Court of Appeal; those applications are connected and must be joined.

While it has not been shown that the members of the Papeete Court of Appeal have taken up a position on the outcome of the proceedings before them, it is apparent from the alleged facts and the documents produced that the Higginses and the other applicants may entertain doubts as to the impartiality of the court that is to try their cases; the cases should therefore be transferred to another court, whose decision will command respect and have the authority that court decisions must possess.

FOR THESE REASONS,

JOINS applications nos. N-89-15.409 and T-89-15.690;

DECLARES the applications admissible; and

ORDERS transfer of the following cases to the Paris Court of Appeal: (1) proceedings for the payment of a legacy…; (2) a third-party application for proceedings to be reopened…; the applications are connected and must be joined…”

In two judgments dated 16 July 1991 the Court of Cassation (First Civil Division) declared null and void the two judgments that the Papeete Court of Appeal had delivered meanwhile, on 29 June 1989, in the proceedings for payment of a legacy and on the application to reopen proceedings. The Court of Cassation’s two judgments were similarly worded. The one on the appeal against the Papeete Court of Appeal’s judgment in the action for payment of a legacy indicated:

“In the impugned decision of 29 June 1989 the Papeete Court of Appeal gave judgment in an action for payment of a legacy, after holding that it was unnecessary to defer judgment until the Court of Cassation had ruled on an application for the case to be transferred on grounds of bias that had been lodged on 25 May 1989; in a judgment of 22 March 1990 the Court of Cassation granted that application and ordered that the case be transferred to the Paris Court of Appeal; it follows, since that transfer decision must be executed, that the Court of Appeal’s decision in the impugned judgment is null and void; it is therefore unnecessary to rule on the appeal against that judgment.

FOR THESE REASONS

HOLDS that it is unnecessary to rule on the appeal.”

On 2 July 1990, being of the view that the Court of Cassation had failed to mention the proceedings against BBC in its judgment of 22 March 1990 by mistake, the applicants made an application for rectification of a clerical error to the Second Civil Division of that court.

In a judgment of 23 October 1991 the Second Civil Division dismissed that application in the following terms:

“In a judgment of 22 March 1990 the Second Civil Division of the Court of Cassation transferred to the Paris Court of Appeal, on grounds of bias, two sets of proceedings pending in the Papeete Court of Appeal between, on the one hand, the Higginses and the other applicants and, on the other hand, Mr L.;

On 2 July 1990 the Higginses and the other applicants made an application to the Court of Cassation for rectification of the judgment of 22 March 1990; in support of their application they argued that that decision contained a clerical error, the Court of Cassation having ordered the joinder of two applications before it, registered under nos. N-89-15.409 and T-89-15.690, but having ordered transfer of only the first two cases, to which the first application related;

But on the pretext of rectification, the purpose of the application is to secure a variation of the judgment’s clear provisions.

For these reasons

Dismisses the application; and

Holds that it is unnecessary to rectify the judgment of 22 March 1990.”

Meanwhile, having held a hearing on 23 November 1989, the Papeete Court of Appeal ruled on 7 December 1989 that there were no grounds for deferring judgment pending a decision on the application lodged by the applicants on 1 June 1989 for transfer of the case on grounds of bias and reversed the judgment of 16 December 1988 in its entirety. Ruling afresh, it held that it had not been established that the instrument creating BBC was a nullity, and it consequently dismissed the application of the Higginses and the other applicants for an order setting aside the transfer to BBC. As to its refusal to defer judgment, it gave the following reasons:

“The Higginses and the other applicants referred to a challenge but have not shown that one was made and do not even identify the judicial officer or officers concerned; accordingly, the application cannot be granted on that count.

On the other hand, they have shown that on 1 June 1989 they filed an application for transfer on grounds of bias with the Court of Cassation’s registry.

By Article 615 of the local Code of Civil Procedure, such applications do not in themselves have suspensive effect and it is for the court concerned to assess whether judgment should be deferred.

Securing the appointment of a receiver in order to paralyse the usual appeals process is contrary to the rights of the defence and is therefore acceptable only in exceptional circumstances.

In their application for a transfer, the Higginses and the other applicants confined themselves to making abstract and vague complaints and only referred in more concrete terms to three judicial officers, who are not (in the case of Mr D.) or are no longer (in the case of Mr A. and Mr J.) members of this Court of Appeal; in practice, execution of the impugned decision is to be levied only on rent from a plot of land, not on the title to that land; in the circumstances, the danger is not such as to make it necessary to defer judgment…”

Without waiting for the application for transfer on grounds of bias to be decided (see paragraphs 11–13 above), the applicants appealed to the Court of Cassation and lodged full pleadings on 20 July 1990. The case was allocated to the First Civil Division.

On 23 April 1991 – although the time-limit for filing pleadings had expired on 7 September 1990 (see paragraph 22 below) – the applicants lodged observations and submissions to the effect that it was unnecessary to decide the appeal, and produced in support the judgment delivered on 22 March 1990 by the Second Civil Division of the Court of Cassation and the application for rectification of a clerical error. Pointing out that the latter application was pending before the Second Civil Division, they argued before the First Civil Division:

“If that application [for rectification of a clerical error] is allowed, the result will be that the Second Civil Division will be deemed to have granted on 22 March 1990 the applicant’s request for transfer of the case on grounds of bias.

In those circumstances, the judgment delivered in this case by the Papeete Court of Appeal on 7 December 1989 will have to be considered null and void. That judgment was delivered after the applicants had lodged the application for transfer on grounds of bias and before that application was heard by the Second Civil Division. The judgment of the Second Civil Division can only have a declaratory effect and contain a finding that it was impossible for the Papeete Court of Appeal to hear the case. Accordingly, the judgment now impugned must be considered as having been deprived of any legal basis as a result of the judgment of 22 March 1990 (once rectified by the Second Civil Division), whereby removal of the case from the Papeete Court of Appeal was ordered. The First Civil Division will, in consequence, have to hold that the impugned judgment is null and void.”

On the same day the applicants’ lawyer sent a letter to the advocate-general dealing with the case to remind him of the history of the proceedings in the First and Second Civil Divisions of the Court of Cassation. He drew the advocate-general’s attention to the judgment of 22 March 1990 and the application for rectification of a clerical error pending in the Second Civil Division of the Court of Cassation and suggested he contact the advocates-general dealing with the other cases.

The First Civil Division held a hearing on 5 November 1991. In a judgment of 17 December 1991, after ruling on the two grounds of appeal alleging that the Court of Appeal had not given sufficient reasons, it dismissed the substantive appeal against the judgment of 7 December 1989 without referring to the judgment of 22 March 1990.

Two provisions of the New Code of Civil Procedure are relevant:

“Appellants shall be barred from proceeding with their appeal unless, within five months of giving notice of appeal on points of law, they file at the Court of Cassation’s registry and serve on the respondent a pleading setting out the legal grounds on which they rely in their appeal against the impugned decision.”

“The time-limits laid down in Articles 978 and 989 shall be extended:

(a) by one month where the appellant lives ... in an overseas territory...”

Article 341 of the New Code of Civil Procedure provides:

“A judge may be challenged on grounds of bias only for the reasons prescribed by law.

... Save for special provisions that shall apply in certain courts, a judge may be challenged if:

(1) he or his spouse has a personal interest in the dispute;

he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties;

(3) he or his spouse is related by blood or by marriage to one of the parties or his spouse up to and including the fourth degree;

(4) there is or has been litigation between him or his spouse and one of the parties or his spouse;

(5) he has previously dealt with the case as a judge or arbitrator or has advised one of the parties;

(6) he or his spouse is responsible for administering the assets of one of the parties;

(7) he or his spouse is the employer or employee of one of the parties or his spouse;

(8) it is common knowledge that there is a friendship or hostility between him and one of the parties...”

The following rules in the New Code of Civil Procedure apply to transfers:

“An application for a case to be transferred on grounds of bias shall be subject to the same conditions as regards admissibility and form as a challenge of a judge for bias.”

“Where an application is justified, the case shall be transferred either to a differently composed bench of the same court or to another court of the same type. The decision shall be binding both on the parties and on the court to which the case is transferred. No appeal shall lie.”

“Proceedings in the court from which an applicant seeks to have a case transferred shall not be stayed. However, the president of the court to which the application for the case to be transferred is made may, depending on the circumstances, direct the court suspected of bias to stay the proceedings pending a decision on the application.”

Article 462 of the New Code of Civil Procedure provides:

“Clerical errors and omissions in a judgment, including a final judgment, may in all cases be rectified by the court that delivered it ... on the basis of the evidence in the file or, failing that, of what reason dictates.

Proceedings for rectification may be brought by means of an application by one of the parties or by means of a joint application; the court may also act of its own motion.

The court shall decide the application after hearing the parties or after having given them an opportunity to appear.

The order for rectification of the error or omission shall be noted on the original and execution copies of the judgment. It shall be served in the same way as the judgment.

Where a rectified decision has become final, the order for rectification may be challenged only by an appeal on points of law to the Court of Cassation.”


Remainder inadmissible;Violation of Art. 6;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1960 and lives in Voronezh.

In August 1998 the applicant deposited 40,000 US dollars (USD) for three months with a private bank “SBS-AGRO” (hereafter – “the Bank”). Following the Bank’s refusal to return the deposit, the applicant sued the Bank for the deposit, interest and compensation for non-pecuniary damage. According to the Government, the Bank’s refusal to return the deposit was caused by a major financial crisis which had occurred in the Russian Federation in the summer of 1998 and which had led to the Bank’s inability to return money to its more than 1.2 million creditors.

In September 1998 the Central Bank of Russia adopted a programme aimed at the protection of deposits made by private individuals with private banks. In line with measures adopted, the Bank signed an agreement with the Russian Savings Bank. Under the terms of the agreement, the Bank transferred its liabilities to the Russian Savings Bank which, in its turn, undertook to repay deposits made in US dollars at the exchange rate of 9.33 Russian roubles for 1 US dollar. On 28 December 1998 the Bank, through a division of the Russian Savings Bank, paid the applicant 373,204 Russian roubles (RUB).

On 10 March 1999 the Zheleznodorozhniy District Court of Voronezh found that the applicant had not consented to the liability transfer. However, taking into account that he had already been repaid a part of the deposit, the District Court ordered that the Bank should repay the applicant USD 30,919.40 and that it should also pay him annual interest starting from the date of the pronouncement of the judgment. The District Court dismissed the claim for compensation for non-pecuniary damage. The judgment was not appealed against and became final on 22 March 1999. A month later the Moscow bailiffs’ office instituted enforcement proceedings.

On an unspecified date the Presidium of the Voronezh Regional Court, acting on an application for a supervisory review, quashed the judgment of 10 March 1999 and sent the case for a fresh examination.

On 29 February 2000, following the re-examination of the applicant’s action, the Zheleznodorozhniy District Court awarded him USD 20,841.68 in main debt, interest thereon and USD 2,853.73 in compensation for damage. That judgment was not appealed against and became final.

By the end of March 1999 over 2,000 enforcement claims were pending against the Bank, with an additional 70-80 claims added every week.

On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the Bank. On 16 November 1999 the management of the Bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (hereafter – “the ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies (hereafter - “the Law”). On 16 November 1999, in accordance with the Law, a moratorium was set for enforcement of all creditors’ demands against the Bank for a year. This period was prolonged by the ARKO on 17 November 2000 for another six months, until 17 May 2001.

On 8 May 2001 the Moscow Commercial Court had approved the text of a tripartite friendly settlement involving the Association of the Bank’s Creditors, the Bank and the ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The friendly settlement substantially limited the Bank’s liability to its creditors.

On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control.

Seven days later the Basmanniy District Court of Moscow ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the Bank in respect of liabilities which had arisen before 16 November 1999.

On 23 July 2001 the Moscow bailiffs’ office discontinued the consolidated enforcement proceeding against the Bank and returned writs of execution to the courts which had issued them. On 29 September 2001 the bailiffs informed the applicant that the enforcement proceedings against the Bank had been discontinued.

The applicant asked the ARKO to confirm that he had been recognised as a creditor of the Bank and to inform him about future meetings of the Bank’s creditors. On 11 September 2001 the ARKO notified the applicant that he had not been registered as a creditor of the Bank. The ARKO requested the applicant to send the documents showing the Bank’s liability to him. The applicant fulfilled the ARKO’s request.

On an unspecified date the applicant sued the ARKO and the Central Bank of Russia for damages. He claimed that the ARKO had not recognised him as a creditor of the Bank, that he had not participated in the friendly-settlement negotiations and that he had not been able to recover his money from the Bank. The applicant insisted that the respondents should repay him the Bank’s debt.

On 17 December 2001 the Zheleznodorozhniy District Court held that the Central Bank and ARKO were responsible for the applicant’s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a Bank’s creditor was unlawful. The District Court ordered that the ARKO should repay the applicant USD 30,919.40 of the Bank’s debt.

On 9 January 2002 the ARKO informed the applicant that he had been registered as the creditor of the Bank and the terms of the friendly settlement of 8 May 2001 were applicable to him although he had not been able to negotiate them. The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt.

On 19 February 2002 the Voronezh Regional Court upheld the judgment of 17 December 2001. The Regional Court again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document.

According to the Government, the applicant applied for a supervisory review of the judgments of 17 December 2001 and 19 February 2002. It appears from the case file that the Voronezh Regional Prosecutor lodged an application for a supervisory review, arguing that the judgment of 17 December 2001, upheld on appeal on 19 February 2002, was erroneous in that the applicant’s claims had been accepted. The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant’s claims against the Bank and thus his action against the ARKO should have been dismissed.

On 15 May 2002 the Presidium of the Voronezh Regional Court, by way of supervisory-review proceedings, quashed the judgments of 17 December 2001 and 19 February 2002 and remitted the case for a fresh examination. The Presidium noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the Bank’s creditors and the draft of the friendly settlement had been published in the press.

On 2 July 2003 the Zheleznodorozhniy District Court made a new judgment in the applicant’s favour and awarded him USD 30,919.40, relying on the same line of arguments as in its previous judgment of 17 December 2001 and citing the case-law of the European Court of Human Rights. That judgment was also quashed on appeal by the Voronezh Regional Court. The case was again sent for re-examination on 13 November 2003.

On 20 December 2004 the Zheleznodorozhniy District Court of Voronezh again issued the judgment in the applicant’s favour, although reducing the amount of the award to USD 20.841,68. The judgment was quashed by the Voronezh Regional Court and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity.


The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M.A. Kırdök, Mr Özcan Kılıç and Mr Hasan Kemal Elban, lawyers practising in Istanbul.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

Until October 1994 the applicant lived in the Çalbaşı village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that other persons with the family name “İnce” appear to be the owners of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live.

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

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

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

Until October 1994 the applicant lived in the Tepsili village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that another person, Munzur Arın, appears to be the owner of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Tepsili on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live.

On 13 September 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.

Until October 1994 the applicants lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli, where they own property. It is to be noted that Hıdır Günaçan appears to be the owner of the property in question on the documents submitted to the Court by Hüseyin Günaçan.

In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live.

On an unspecified date Hıdır and Zeynel Günaçan lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.

On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified.

On 27 August 2001 the applicants filed petitions with the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to their village.

On 31 October 2001 the State of Emergency Department of the District Governor’s Office in Ovacık sent the following reply to the applicants:

Until October 1994 the applicants lived in the Kalecik village in the district of Hozat in Tunceli, where Süleyman and Efendi Güneş own property. It is to be noted that Celal Güneş submitted a certificate, signed and approved by the headman (muhtar) of his village, to the Court attesting his ownership of the property in Kalecik.

In October 1994 security forces forcibly evacuated Kalecik on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Toratlı village, in Çemişkezek district where they currently live.

On an unspecified date Efendi Güneş filed a petition with the District Governor’s office in Hozat requesting an alternative residence and compensation for the damages he had suffered.

On 7 January 1995 the District Governor’s office in Hozat sent a letter to the applicant to inform him about the food and money relief that the District Governor’s office in Hozat serves and further informed him that there was no legal ground for his alternative residence request.

On 7 June 1995 Süleyman Güneş filed petitions with the Prime Minister’s office and the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) requesting a loan to reconstruct his house.

On 28 June 1995 the Ministry of Public Works and Settlement sent his petition to the General Directorate of Rural Services (Köy Hizmetleri Genel Müdürlüğü) stating that his request was not within the scope of the Law no.7269.

On 30 June 1995 the Prime Minister’s office sent his petition to the Ministry of Public Works and Settlement.

On 12 July 1995 the Ministry of Public Works and Settlement sent his petition to General Directorate of Rural Services.

On 13 July 1995 the General Directorate of Rural Services sent the following reply to him:

“Your request of housing aid is not within the scope of the Law no. 2510. Therefore no process exists on your request.”

On an unspecified date Efendi Güneş filed a petition with the Prime Minister’s office requesting permission to return to his village.

On 18 August 1995 the Prime Minister’s office sent the petition to Governor’s office in Tunceli for examination. He received no response.

On 27 October 1997 Süleyman Güneş filed a petition with the District Governor’s office in Hozat requesting to be provided with government aid and permission to return to his village.

On an unspecified date Celal Güneş filed a petition with the Prime Minister’s office requesting permission to return to his village.

On 13 October 1997 the Prime Minister’s office sent the petition to the Ministry of the Interior.

On 25 November 1997 the District Governor’s office in Hozat sent the following reply to Süleyman Güneş:

“...Due to the security reasons in the region, no one is curently residing in the Kalecik village.

No fund is allocated for the villagers who had to leave their villages. Therefore your request for government aid can not be fulfilled.

On 17 September 2001 Süleyman Güneş filed a petition with the Prime Minister’s office requesting to be provided with government aid permission to return his village.

On 24 September 2001 the Prime Minister’s office sent the petition to the Ministry of the Interior.

On unspecified dates the applicants filed petitions with the District Governor’s office in Hozat requesting permission to return to their villages.

On 9 November 2001 the District Governor’s office in Hozat sent the following reply to the applicants:

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

In this context, your petition has been taken into consideration and your request will be responded when it is possible to return to the villages.”

Until October 1994 the applicant lived in the Karataş village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that the applicant’s father appears to be the owner of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live.

On 13 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577.

Until October 1994 the applicant lived in the Karataş village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that his father, İsmail Ağgül, appears to be the owner of the property in question on the documents submitted to the Court.

On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık.

On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified.

On 13 August 2001 the applicant filed petitions with the Governor’s office in Tunceli and District Governor’s office in Ovacık requesting permission to return to his village.

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

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

Until October 1994 the applicant lived in the Buzultepe village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that his uncle, Hıdır Gönek, appears to be the owner of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Buzultepe on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live.

On 20 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village.

On 20 September 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant:

“... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.

Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Until October 1994 the applicants lived in Çalbaşı village in the district of Ovacık in Tunceli. It is to be noted that Efendi İnce and other persons with the family name “Doğan” appear to be the owners of the property in question on the documents submitted to the Court by Hasan İnce and Nurettin İnce, Barış İnce and Abidin İnce respectively.

In October 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. They also destroyed the applicants’ property. Barış İnce, Hasan İnce, Mustafa İnce, Nurettin İnce, Ali İhsan İnce and Ahmet İnce then moved to Istanbul. Zeynal İnce and Abidin İnce moved to Gümüşbağlar village in Elazığ, where they currently live.

On 16 August 2001 Barış İnce filed petitions with the Prime Minister’s office, the Emergency Regional Governor and the Governor’s office in Tunceli requesting permission to return to their villages. He received no response to his petitions within the 60-day period prescribed by Law no. 2577.

On 17 August 2001 Nurettin İnce filed petitions with the Prime Minister’s office, State Emergency Regional Governor and Governor’s office in Tunceli. He received no response to his petitions within the 60-day period prescribed by Law no. 2577.

On 21 August 2001 Hasan İnce, Zeynal İnce and Abidin İnce filed petitions with the Prime Minister’s office, State Emergency Regional Governor and Governor’s office in Tunceli. They received no response to their petitions within the 60-day period prescribed by Law no. 2577.

On an unspecified date Ahmet İnce filed petitions with the Ministry of the Interior, the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village.

On 20 September 2001 the Governor’s office in Tunceli sent the following reply to the applicant:

On an unspecified date Ali İhsan İnce and Mustafa İnce filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village.

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

Until October 1994 the applicants lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli. It is to be noted the title deeds to the property that Hasan and İsmail Aygördü used in Kızılveren bear the name of Ali Aygördü and the name of İsmail Aygördü’s father. It is also to be noted that the title deeds to the property that Murat Aygördü, Yeşil Aygördü and Hüseyin Gazi Aygördü used in Kızılveren bear their fathers’ name.

On an unspecified date Murat Aygördü and Hüseyin Gazi Aygördü lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.

On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified.

On an unspecified date, İsmail Aygördü filed a petition with the Ministry of the Interior requesting permission to return to his village.

On 27 September 2000 the State Emergency Department of Governor’s office in Tunceli sent the following reply to the applicant:

“....Kızılveren hamlet, in Hanuşağı village is not secure and economically suitable for residence.

You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.

Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.”

On an unspecified date Yeşil Aygördü filed petitions with the Ministry of the Interior, Governor’s office in Tunceli, District Governor’s office in Ovacık and Public Prosecutor’s office in Ovacık.

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

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

On 5 September 2001 İsmail Aygördü filed petitions with the Governor’s office in Tunceli, District Governor’s office in Ovacık and Public Prosecutor’s office in Ovacık requesting permission to return to his village. He received no response to his petitions which he had filed with the Governor’s office in Tunceli and the District Governor’s office in Ovacık within the 60-day period prescribed by Law no. 2577.

On 6 and 12 September 2001 the Public Prosecutor in Ovacık issued decisions to discontinue criminal proceedings (Takipsizlik kararı- non-prosecution decision) with regards the complaints lodged by Yeşil Aygördü and İsmail Aygördü. He held that the petition in question should be examined by the administrative authorities.

On an unspecified date Hüseyin Gazi Aygördü filed petitions with the Ministry of the Interior and Governor’s office in Tunceli requesting permission to return to his village.

On 15 October 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant:

On an unspecified date, Murat Aygördü filed petitions with the Ministry of the Interior and Governor’s office in Tunceli requesting permission to return to his village.

On 29 October 2001 he was told by a police officer that Kızılveren hamlet, in Hanuşağı village was not secure and economically suitable for residence, therefore he could return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.

The police officer further stated that his petition would be considered under the ‘Return to the Village and Rehabilitation Project’.

The applicant submitted an official document to the Court certifying the statement made by the police officer in question.

On an unspecified date Hasan Aygördü filed petitions with Ministry of the Interior, District Governor’s office in Ovacık, Governor’s office in Tunceli and Public Prosecutor’s office in Ovacık requesting permission to return to his village.

On 21 November 2001 the Public Prosecutor’s office in Ovacık issued decisions on to discontinue criminal proceedings (Takipsizlik kararı- non-prosecution decision) in accordance with Article 164 of the Code of Criminal Procedure holding that the petition in question should be examined by the public authorities.

On 30 November 2001 State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant:

On 5 December 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant:

“....Kızılveren hamlet, in Hanuşağı village is not secure and economically suitable for residence.

You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.

Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Until October 1994 the applicants lived in Şahverdi village in the district of Ovacık in Tunceli, where the applicants own property. It is to be noted the title deeds to the property that Turabi, Şahin, Baba and Haydar Altunkıran, Turabi and Kazım Gündoğdu, Erdal Gergin and Gazi Gündoğdu used in Şahverdi village bear their fathers’ name. Further, Hüseyin and Cemile Gündoğdu did not submit any certificate attesting their ownership of property in Şahverdi.

In October 1994 security forces forcibly evacuated Şahverdi on account of disturbances in the region. They also destroyed the applicants’ property.

Veli Akyol, Şahin Altunkıran, Gazi and Ali Gündoğan and Cemile Gündoğdu then moved to Ovacık, Musa Kavrulmuş, Celal and Polat Cimin and Erdal Gergin moved to Istanbul and Turabi, Baba, Haydar and Polat Altunkıran, Hüseyin Yüceer and Ahmet, Turabi, Kazım and Hüseyin Gündoğdu moved to villages in Erzincan.

On 7 October 1994 Turabi, Şahin, Haydar Altunkıran, Gazi Gündoğan and Cemile Gündoğdu lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On 13 October 1994 Baba and Polat Altunkıran lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On unspecified dates Veli Akyol, Musa Kavrulmuş, Celal and Polat Cimin, Ali Gündoğan, Hüseyin Yüceer, Ahmet, Turabi, Kazım and Hüseyin Gündoğdu lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.

On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified.

On an unspecified date Polat Altunkıran filed a petition with the Prime Minister’s office requesting to be provided with government aid and permission to return to his village.

On 28 December 1994 the Prime Minister’s office sent the petition to the Governor’s office in Tunceli.

On 31 July 1995 Polat Altunkıran filed a further petition with the Prime Minister’s office requesting permission to return to his village. On the same day he lodged a petition with the Malatya State Security Court complaining about the burning down of their houses by security forces. The Malatya State Security Court issued a decision to discontinue the criminal proceedings (Takipsizlik kararı- non-prosecution decision).

On an unspecified date Erdal Gergin filed a petition with the Governor’s office in Tunceli requesting permission to return to his village.

On 11 April 2000 the Governor’s office in Tunceli sent the following reply to the applicant:

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

On 11 September 2001 Polat Altunkıran filed petitions with the Prime Minister’s office, the Ministry of the Interior, the State Emergency Regional Governor’s office, the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village.

On 8 November 2001 he was summoned to the Struggle Against Terrorism Department of the Erzincan Security Directorate and Çağlayan Security Directorate, where he was informed about the Tunceli Governor’s reply to his petition concerning a request of permission to return to his village.

The applicant and three other witnesses drafted a note on this statement. This note is attached to the applicant’s application to the Court.

On 14 September 2001 Erdal Gergin filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.He received response to his petition within the 60-day period prescribed by Law no. 2577.

On an unspecified date Celal and Polat Cimin filed petitions with the Ministry of the Interior requesting permission to return to their village.

On 20 September 2001 the Governor’s office in Tunceli sent the following reply to them:

“... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.

Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.”

On 11 September 2001 Turabi and Polat Altunkıran and Hüseyin Yüceer filed petitions with the District Governor’s office in Ovacık requesting permission to return to their villages.

On unspecified dates Veli Akyol, Turabi, Şahin, Baba, Haydar Altunkıran, Gazi and Ali Gündoğan, Hüseyin Yüceer and Ahmet, Turabi, Kazım, Hüseyin and Cemile Gündoğdu filed petitions with the District Governor’s office in Ovacık requesting permission to return to their villages.

On 31 October 2001 and on 22 January 2001 the District Governor’s office in Ovacık and the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants:

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

On 28 November 2001 Musa Kavrulmuş filed petitions with the Ministry of the Interior and District Governor’s office in Ovacık requesting permission to return to his village.

On 5 December 2001 the District Governor’s office in Ovacık sent the following reply to the applicant:

On 19 December 2001 the Governor’s office in Tunceli sent the following reply to the applicant:

Until October 1994 the applicants lived in the Yazıören village in the district of Ovacık in Tunceli, where they own property.

In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Paşadüzü village where they currently live.

On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces.

On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.

On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified.

On 15 November 2000 Muzaffer Kılıç filed a petition with the General Directorate of Rural Services requesting permission to return to his village.

On 22 December 2000 the General Directorate of Rural Services sent the following reply to him:

“...Governors’ offices are working on the solutions to the problems you have mentioned in your petition. Therefore petitions containing requests of permission to return to village should be filed with the Governors’ offices.

On an unspecified date Muzaffer Kılıç filed a petition with the Governor’s office in Tunceli requesting permission to return to his village.

On 23 November 2000 State Emergency Department of the Governor’s office in Tunceli sent the following reply to him:

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

On 3 January 2002 the applicants filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village.

On 21 January 2002 State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants:

“...As a result of the work carried out by the Implementation Commission of the Return to the Village and Rehabilitation Project Yazıören village has been attached to Mollaaliler village, in Ovacık.

Implementation of the project has not started yet. Therefore, you can return and reside in Çakmaklı, Gözeler, Güneykonak-Koyungölü and Yeşilyazı villages.

Until October1994 the applicants lived in the Yazıören village, in the Ovacık district in Tunceli. It is to be noted that İbrahim Konuklu appears to be the owner of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live.

On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by the security forces.

On 18 October 1994 İbrahim Konuklu applied to Civil Court of First Instance in Ovacık in order to have his damages determined.

On 18 October 1994 the Civil Court of First Instance in Ovacık ordered an on-site visit to the property.

On the same day the Civil Court of First Instance in Ovacık sent a letter to District Governor’s office in Ovacık informing about the on-site visit on 21 November1994 and requesting information on safety measures for the on-site visit.

On 25 October 1994 the Cadastre Administrative in Tunceli sent the following reply to the Ovacık Civil Court of First Instance:

“Your request on experts for the on-site visit to the property can not be fulfilled due to security reasons.”

On 6 November 1994 the District Gendarmes Command in Ovacık sent the following reply to the Civil Court of First Instance:

“Your request on experts for the on-site visit can not be fulfilled. It is reported that no one currently live in the village. Therefore, no list of experts can be prepared.”

On 21 November 1994 the Civil Court of First Instance decided not to conduct an on-site visit due to the security reasons.

On 15 July 1997 İbrahim Konuklu filed a petition with the Governor’s office in Ovacık requesting permission to return to his village.

On 20 August 1997 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to him:

“Your petition containing a request of permission to return to your village has been examined.

The struggle against terrorism in our region has been continuing intensively and positive result is being achieved.

Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages.”

On an unspecified date the applicants filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village.

On 16 January 2002 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants:

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

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere.

In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live.

On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces.

On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık.

On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified.

On 10 October 1999 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village.

On 16 October 1999 the Governor’s office in Tunceli sent the following reply to the applicant:

“The South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma Idaresi Başkanlığı) is working on a project called ‘Return to the Village and Rehabilitation’. Only two villages, Dallıbahçe and Dereova, from Tunceli are included in this project.

There is no other project concerning the other villages in Tunceli.

Petitions concerning the other villages, will be taken into consideration if such a project is adopted in the future.”

On 14 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577.

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that another person her husband appears to be the owner of the property in question on the documents submitted to the Court.

In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and her family then moved to Istanbul where they currently live.

On an unspecified date the applicant filed a petition with the State Emergency Department of the District Governor’s office in Ovacık requesting permission to return to her village.

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

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

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted his father, Gülabi Çılgın, appears to be the owner of the property in question on the documents submitted to the Court.

On 24 October 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577.

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that another person, Hasan Önder, appears to be the owner of the property in question on the documents submitted to the Court.

On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of her house by security forces.

On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık.

On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified.

On 23 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to her village. She received no response to her petition within the 60-day period prescribed by Law no. 2577.

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property

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

On 20 November 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant:

Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that another person, Veli Ragıp, appears to be the owner of the property in question on the documents submitted to the Court.

On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces.

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

The official records indicated that the inhabitants of Hanuşağı, Çalbaşı, Tepsili, Kalecik, Karataş, Buzultepe, Şahverdi, Yazıören and Cevizlidere had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village.

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. In this connection, in a letter of 15 October 2002 the District Governor of Ovacık informed the applicants that they could return to their villages and resume their economic activities if they wished. He further noted that all villages were open for re-settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region.

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

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

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

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