Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Peter Popivčák, is a Slovak national who was born in 1950 and lives in Košice.

He was represented before the Court by Mr T. Šafárik, a lawyer practising in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

The facts of the present case revolve around a piece of real property, situated in a regional capital, which used to form part of the site of a factory belonging to a (socialist) State-owned enterprise.

In the 1980s an above-ground heat distribution pipeline was built in the area in order to provide it with heating. The pipeline passes through the property in question.

The applicant is a self-employed entrepreneur. In that capacity, in 1991 and 1992 he rented the said property from the private company which had meanwhile become its owner. Subsequently, in 1993, the applicant himself acquired title to the property by way of purchase.

The property forms a part of a shop in which the applicant runs a business which is essentially a car scrapyard.

The property partly consists of a road. According to the Government’s submission, which is supported by photographs and which has not been contested by the applicant, the remaining part of the property is used for storing wrecked cars.

The pipeline runs alongside the applicant’s premises approximately 3 metres above the ground and between 4.5 and 9.5 metres from the fence, and it rests on pylons anchored in the ground.

The pipeline belongs to a commercial joint-stock company producing and distributing heating for the town concerned.

The bone of contention in the present case is the lack of compensation for the restrictions on the use of the applicant’s property due to the pipeline. The applicant unsuccessfully applied for such compensation in the proceedings which lie at the heart of the present case. However, prior to those proceedings he had asserted similar claims in another set of proceedings, but also unsuccessfully. Both sets of proceedings are described below, chronologically, with focus on the contested proceedings.

Until 2004, by virtue of section 4(1)(l) of the Real Estate Tax Act (Law no. 317/1992 Coll., as in force at the relevant time), real property encumbered by easements such as the one in the present case were exempt from real-estate tax. According to the Government, whose submission the applicant has not contested, from 2005 this exemption continued to apply to the property in question by virtue of a decision of the municipality concerned.

In 2000 the applicant lodged an action against the above-mentioned heat production and distribution company seeking compensation in respect of unjustified enrichment on account of the easement relating to the pipeline.

The action was dismissed by the Košice II District Court (Okresný súd) on 9 December 2002 and, following an appeal by the applicant, by the Košice Regional Court (Krajský súd) on 19 May 2003.

On 25 April 2008 the applicant lodged a new action against the same defendant, arguing that the latter was the owner of the pipeline and that, along with the protective zones around it, the pipeline prevented him from making use of about 500 square metres of his property.

The applicant submitted that the average yearly rent for land in the area was equivalent to approximately 3.70 euros (EUR) per square metre. Accordingly, the applicant requested an order for the payment of the equivalent of approximately EUR 1,850 to cover the four years before the introduction of his action, plus each subsequent year.

In support of his claims, the applicant invoked, inter alia, Articles 1 of Protocol No. 1 and 20 §§ 1 and 4 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), as well as the relevant provisions of the Civil Code (Law no. 40/1964 Coll., as amended) and the 2004 Thermal Energy Sector Act (Law no. 657/2004 Coll., as amended).

The applicant also relied on a judgment (nález) of the Constitutional Court (Ústavní soud) of the Czech Republic (whose legal tradition is similar to that of Slovakia) of 18 November 2003 in case no. I. ÚS 137/03.

That judgment concerned, inter alia, the continued application of the 1957 Electrification Act (Law no. 79/57 Coll.) (see below), which had been adopted at the time of the Czechoslovak Republic. The Czech Constitutional Court observed an ideological distinction between the “old law”, that is to say, that of the “old (communist) regime” prior to November 1989, and the law applicable under the subsequent democratic constitution. This distinction reflected the political and economic changes that had taken place. While there was a general continuity with the old law, there was a discontinuity in respect of the values of the old regime. Thus, the interpretation and application of the old rules had currently to take due account of the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the creation of an ex lege easement as such was undisputed, where the applicable publiclaw legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement, the relevant provisions of private law were to be used as an alternative. Such provisions provided for compensation in respect of running costs, which was to be agreed on by those concerned or to be ordered by a court. A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement.

The action was dismissed by the District Court on 14 January 2009 and, following an appeal by the applicant, by the Regional Court on 5 May 2010. The courts’ reasoning can be summarised as follows.

To start with, the courts found that, although the action concerned the same parties and the same property and was based on the same line of argument, the matter was not res judicata by reason of the judgments of 2002 and 2003 (see paragraph 13 above). This was so because the claims raised in it concerned a different period of time (see paragraph 15 above), and new legislation had been enacted in the meantime (see below).

In this regard, the courts observed that the heat-distribution facility had been built under a construction permit granted in 1981; that it had begun to operate in 1987; and that it was located on land which, at that time, had belonged to the (socialist) State.

By operation of section 18 of Governmental Directive no. 80/1957 Coll. (applicable at the relevant time) on the implementation of the 1957 Electrification Act, the application of that Act had been extended to heatdistribution facilities, such as the one in the present case.

The 1957 Electrification Act thus authorised the construction of the facility but, as a matter of principle, it did not provide for compensation. However, if the owners or users of the real property concerned were significantly encumbered in its use, they could claim adequate one-off compensation. The claim had to be filed within three months of the entry of the installation into use or else it would lapse.

The 1957 Electrification Act provided for ex lege easements and the subsequent legislation, in particular section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 38(4) of the 2004 Thermal Energy Sector Act, had left them intact. None of these pieces of legislation envisaged any compensation for the restrictions inherent in the continued existence of the ex lege easements, other than the one-off compensation at the time of their creation. Providing for new compensation claims would have the effect of creating new titles to restitution, which the lawmaker was free under the Constitution not to choose to do.

The applicant had acquired his plot in 1993 by purchasing it from a private seller. It had been his responsibility to examine the condition of the property, including the existence of the impugned ex lege easement, and to ensure that that was reflected in the purchase price. The contested ex lege easement fell outside the scope of the existing unjustified-enrichment rules, which accordingly were not applicable.

On 18 June 2010 the applicant challenged the judgement of the ordinary courts by way of a complaint before the Constitutional Court (Ústavný súd) under Article 127 of the Constitution.

In substance, he reiterated the above arguments and alleged a violation of his rights under Articles 6 § 1 of the Convention and 1 of Protocol No. 1.

In addition, he submitted that the courts’ argument concerning how he had acquired the property was of secondary importance and did not deal with the question of principle obtaining in cases such as his.

On 7 October 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.

The Constitutional Court reiterated its established case-law to the effect that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established.

The essence of the applicant’s complaint was that there was no law enabling him to claim compensation for the ex lege easement over his property. However, in contrast to some other jurisdictions, including the Czech Republic, an individual in Slovakia had no power to challenge the compliance of the legislation, or lack of it, with the Constitution. The applicant’s argument made in reliance on the case-law of the Constitutional Court of the Czech Republic was therefore without consequence.

The ordinary courts had supported their judgments by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification.

The Charter (Constitutional Law no. 23/1991 Coll.) was introduced into the legal order by way of a constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9 January 1991 and which entered into force on 8 February 1991. The law remains in force in Slovakia today.

The relevant part of Article 11 provides:

“1. Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. [The right of] inheritance is guaranteed.

The law shall designate the property necessary for securing the needs of society as a whole, the development of the national economy, and public welfare, which may be owned exclusively by the State, a municipality, or by designated legal persons; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the Czech and Slovak Federal Republic.

Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to cause harm to health, nature, or the environment beyond the limits laid down by law.

Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.”

The relevant part of Article 20 provides:

“1. Everyone shall have the right to own property. The property rights of all owners shall be uniformly construed and equally protected by law. The right of inheritance is guaranteed.

Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest, in accordance with the law and for adequate compensation.”

Articles 3 § 1:

“The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra bonos mores.”

Article 123:

“The owner shall be entitled, within the limits prescribed by law, to hold the object of his ownership, to use it, to benefit from its fruits and proceeds and to make dispositions in respect of it.”

Article 124:

“All owners shall have the same rights and duties and shall be granted the same legal protection.”

Article 128:

“1. The owner of a thing must endure the use of his thing [by another person] in a state of emergency or in a pressing public interest, for the necessary time, to the necessary extent, and in return for compensation, if the purpose cannot be achieved otherwise.

In the public interest, ... the ownership of [a thing] may be restricted if the purpose cannot be achieved otherwise, provided that the expropriation or restriction has a basis in law, and only for that purpose and for compensation.”

Article 151n et seq. provides for basic rules in relation to easements:

“1. Easements shall constitute a restriction on the owner of real property for the benefit of someone else, so that the owner must endure, refrain from doing or do something. The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person.

Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property.

Unless the participants agree otherwise, the person who is entitled to use somebody else’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair; however, if the thing is co-used by its owner, the owner must bear these costs in proportion to the extent of the joint use.”

The relevant part of Article 151o § 1 provides:

“Easements can arise on the basis of a written contract, on the basis of a will, in connection with the outcome of inheritance proceedings, on the basis of an approved agreement among the heirs, on the basis of a decision by the competent authority, or by operation of law.”

Under section 22(1) of the 1957 Electrification Act, an enterprise active in the energy sector was entitled: (a) to build and operate electrical installations on other persons’ real property to the extent permitted under the building permit, to erect support pylons, to connect the plots by conductors and to establish the electricity main on them; (b) to access the real property directly concerned for the purposes of the construction, operation, maintenance, and modification or removal of the main; and (c) to remove or prune trees obstructing the main.

Subject to section 22(2), the exercise of the entitlements pursuant to section 22(1) was subject to no compensation. However, if the owners or users of real property not belonging to the (socialist) State were significantly encumbered in the use of the property because of the establishment of the main, they could a claim with the construction authority for the company concerned to pay them adequate one-off compensation. The claim was to be submitted within three months of the entry of the installation into permanent use on the pain of expiry.

Under section 18 of Governmental Directive no. 80/1957 Coll. (as in force at the relevant time) on the implementation of the 1957 Electrification Act, the application of section 22 and certain other provisions of the 1957 Electrification Act was extended to heat-distribution facilities.

The 1957 Electrification Act was abolished and replaced by the 1998 Energy Act as of 1 July 1998, which in turn was abolished by virtue of the 2004 Energy Act (Law no. 656/2004 Coll.) as of 1 January 2005.

However, under both Acts, as well as under the 2004 Thermal Energy Sector Act, entitlements in respect of other persons’ real property and limitations on the use of it which had been established previously remained intact.

Under the relevant part of section 10 of the 2004 Thermal Energy Sector Act,

“1. The holder of a licence [to carry out business in the thermal energy sector] ... shall have the right:

a) to enter with machinery or on foot another person’s land, buildings or facilities in connection with the operation, service, taking of readings, repairs and maintenance of the heating facility network ... after obtaining the consent of the owner of the real property [concerned], which consent shall not be required in the event of an immediate threat to life, health or property ...,

b) in a protective zone to remove and prune trees and other coppice which undermines the security and reliability of the thermal energy facilities if the owner or other entitled user of the real property [concerned] has not done so despite a previous written request ...,

The holder of the licence is liable for:

c) providing one-off compensation for the restriction on the exercise of ownership rights in respect of real property which he or she has entered in the discharge of his or her tasks under [the above-cited] sub-section 1,”

In addition, under section 33(1)(a) of the 2004 Thermal Energy Sector Act, individuals and legal entities are entitled to adequate compensation for restrictions on the exercise of their ownership rights due to the establishment of a protective zone, and for entry onto their real property for the purposes of the reconstruction, repair or maintenance of a system of thermal installations.

By way of an action in the Prešov District Court (case no. 9C 207/00), an individual sued a municipality and a public-transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system. The legal provisions applicable in respect of such installations were similar to those applicable in the present case. For unclear reasons the applicants were third parties to the proceedings.

In the context of those proceedings, the Court of Appeal challenged before the Constitutional Court the constitutionality of section 42(2) of the 1957 Electrification Act, applicable by virtue of section 69(10) of the 2004 Energy Act, which had replaced the 1998 Energy Act.

On 28 September 2005 the Constitutional Court dismissed the challenge (case no. PL. ÚS 28/05) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation. Providing for new compensation claims would amount to enabling new restitution claims, which the lawmaker was free under the Constitution to choose not to do.


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Naeem Anwar Tabassum, was born in 1966 and lives in West Drayton. His nationality is in dispute. He maintains that he is a national of the United Kingdom; the Government maintain that he is a Pakistani national.

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

The applicant claims to have been born in the United Kingdom to a British mother and a Pakistani father, and thus to have British nationality. He claims that he returned as a young child with his father to Pakistan, where he lived until he re-entered the United Kingdom in 2000, travelling with both his expired child’s British passport and his valid Pakistani passport. There is no evidence to support this account, as he claims that both passports were subsequently stolen from him.

In November 2001, the applicant was convicted for persistently soliciting a woman for prostitution and fined. He was convicted in July 2004 of obtaining property by deception, for which he was sentenced to two years’ imprisonment. He was convicted in May 2005 of soliciting persons for car hire without a licence and driving whilst uninsured, for which he received a fine. He was convicted in September 2008 of driving whilst uninsured, for which he was fined and disqualified from driving for six months. On 19 September, he was convicted of forgery. He was sentenced to eighteen months’ imprisonment and deportation proceedings against him were initiated. He was notified of his liability to deportation on 29 October 2008 and did not make any representations in response. Nor did he appeal against deportation. On 10 December 2008, he was served with a signed deportation order. At the expiry of his sentence on 12 June 2009, the applicant was taken into immigration detention pending his deportation.

On 1 December 2008, whilst still in prison, the applicant refused to attend an interview with the High Commission for Pakistan in London to obtain a travel document. Following a warning, however, he attended an interview on 23 June 2010. The Pakistani authorities were not prepared to accept that the applicant was a national of Pakistan; however, subsequent to the interview, further documentation was sent to the High Commission by the British authorities in evidence of the applicant’s connection to Pakistan. Regular reminders have since been sent by the British authorities and, on 17 June 2011, a response was received from the High Commission, stating that the applicant’s national status was required to be verified from Pakistan.

The applicant sought permission to apply for judicial review of the legality of his detention. Permission was granted and a substantive hearing was held before the High Court on 15 July 2011. The onus was on the applicant to prove his claimed British citizenship and the judge found that, on the evidence before him and having regard to the applicant’s dishonesty and use of false identities in the past, he had not done so. He had not established that any of the identities he had claimed in the past were actually his, or that he had been born in the United Kingdom to a British mother, as he claimed. Having failed to prove that he was British, he must be treated as a foreign criminal, and was thus liable to detention pending his deportation. The judge was satisfied that the Secretary of State was genuinely using the power to detain for the purposes of effecting the applicant’s deportation. While the two-year period of immigration detention was long, it was not unreasonable, given the applicant’s insistence that he was British when he was not, and his failure to disclose sufficient details about his years in Pakistan to enable the Pakistani authorities to issue him with a travel document. The judge also accepted the Secretary of State’s decision that the applicant presented a high risk of absconding and of committing further offences if granted immigration bail; the fact that the applicant was failing to cooperate in obtaining a travel document only reinforced this risk. The key point was that the obstacles to the applicant’s deportation had been created by the applicant himself and his failure to give an honest account to either the British or Pakistani authorities. Given that his claim to be British had now been examined and rejected by a court, the judge found that the applicant might now be minded to disclose the necessary information to the authorities to enable a travel document to be issued. There was a sufficiently realistic prospect that the applicant’s deportation would take place within a reasonable time to render his continued detention lawful.

The applicant notified the Court on 21 December 2011 that he had been released from detention. He did not provide any information as to why he had been released.

Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.

Section 3(8) of the same Act provides that when any question arises as to whether a person is a British citizen or not, the onus shall be on the person asserting such citizenship to prove it.

Paragraph 2 of Schedule 3 of the same Act provides that, where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom.

The Supreme Court recently reaffirmed principles that had been set down in the case of R. v. Governor of Durham Prison, ex parte Hardial Singh (1984) 1 WLR 704 regarding the Secretary of State’s power to detain those whose deportation is pending, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12. The principles are as follows: i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, he should not seek to exercise the power of detention; and iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.


CASE OF BEKOS AND KOUTROPOULOS v. GREECE

Violations of Art. 3;No separate issue under Art. 13;No violation of Art. 14+3 (alleged racist treatment);Violation of Art. 14+3 (failure to investigate possible racist motives);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants, who are Greek nationals of Roma origin, were born in 1980 and live in Mesolonghi (Western Greece).

On 8 May 1998, at approximately 00.45 a.m., a patrol car from the Mesolonghi police station responded to a telephone complaint reporting the attempted burglary of a kiosk. The call had been made by the grandson of the owner of the kiosk, Mr Pavlakis. Upon arriving at the scene, the latter found the first applicant attempting to break into the kiosk with an iron bar while the second applicant was apparently acting as a lookout. He struggled with the second applicant, who subsequently stated that Mr Pavlakis had punched him in the face.

At that point three police officers, Mr Sompolos, Mr Alexopoulos and Mr Ganavias, arrived. The first applicant claimed that he was initially handcuffed without being beaten. Then, an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon. He stopped when the first applicant complained that he had a medical condition and was feeling dizzy.

Following their arrest, the applicants were taken to the Mesolonghi police station, where officers Tsikrikas, Avgeris, Zalokostas, Skoutas and Kaminatos were present. The first applicant alleged that as he was being led to his cell one officer beat him twice with a truncheon and another slapped him in the face.

At 10.00 a.m. the first applicant was taken to the interview room, where allegedly three police officers punched him in the stomach and the back, trying to extract confessions to other crimes and information about who was dealing in drugs in the area. According to the first applicant, the police officers took turns beating him, slapping him and hitting him all over his body. The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary. He alleged that this officer also pushed him against the wall, choking him with the iron bar and threatening to sexually assault him, saying “I will f... you”, while trying to lower his trousers.

The second applicant said that he was also abused throughout his interrogation. During the early hours of the day, he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again. Subsequently, the second applicant identified the officer as Mr Tsikrikas. The second applicant also testified that the police officers “inserted a truncheon in [his] bottom and then raised it to [his] face, asking [him] whether it smelled”.

The applicants stated that they were both able to hear each other’s screams and cries throughout their interrogation. The first applicant testified before the domestic court: “I could hear Koutropoulos crying in the other room”. The second applicant stated: “I screamed and cried when they were beating me. I could also hear Bekos’s screams and cries”. They also claimed that they suffered repeated verbal abuse about their Roma origins. In his sworn deposition dated 3 July 1998 the first applicant testified before the public prosecutor that the officer who had choked him with the iron bar said to him “you guys f... your sisters” and “your mothers are getting f... by others” (see also paragraph 25 below).

The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention.

The applicants remained in detention until the morning of 9 May 1998. At 11.00 a.m. they were brought before the Mesolonghi Public Prosecutor. The first applicant was charged with attempted theft and the second applicant with being an accomplice. The Public Prosecutor set a trial date and released the applicants. In November 1999 the applicants were sentenced to thirty days’ and twenty days’ imprisonment respectively, in each case suspended for three years.

On 9 May 1998, the applicants went to the regional hospital in order to obtain medical evidence of their injuries. However, the intern they saw at the hospital was only able to verify that they both had bruises. In order to acquire stronger evidence of their injuries, the applicants consulted a forensic doctor in Patras. The latter issued a medical certificate dated 9 May 1998, in which he stated that the applicants bore “moderate bodily injuries caused in the past twenty-four hours by a heavy blunt instrument...” In particular, the first applicant had “two deep red (almost black) parallel contusions with areas of healthy skin, covering approximately 10 cm stretching from the left shoulder joint to the area of the deltoid muscle and the right shoulder joint. He complains of pain in his knee joint. He complains of pain in the left parietal area”. The second applicant had “multiple deep red (almost black) parallel ‘double’ contusions with areas of healthy skin covering approximately 12 cm stretching from the left shoulder joint along the rear armpit fold at the lower edge of the shoulder blade, a contusion of the aforementioned colour measuring approximately 5 cm on the rear left surface of the upper arm and a contusion of the aforementioned colour measuring approximately 2 cm on the right carpal joint. He complains of pain on the right side of the parietal area and of pain in the midsection. He complains that he is suffering from a torn meniscus in the right knee, shows pain on movement and has difficulty walking”. The applicants produced to the Court pictures taken on the day of their release, showing their injuries. The Government questioned the authenticity of these pictures and affirmed that they should have first been produced to the domestic authorities. They also questioned the credibility of the forensic doctor who examined the applicants and submitted that he had convictions for perjury.

On 11 May 1998 the Greek Helsinki Monitor and the Greek Minority Rights Group sent a joint open letter to the Ministry of Public Order protesting against the incident. The letter bore the heading “subject matter: incident of ill-treatment of young Roma (Gypsies) by police officers”; it stated that members of the above organisations had had direct contact with the two victims during a lengthy visit to Roma camps in Greece and that they had collected approximately thirty statements concerning similar incidents of ill-treatment against Roma. The Greek Helsinki Monitor and the Greek Minority Rights Group Reports urged the Minister of Public Order in person to ensure that a prompt investigation of the incident was carried out and that the police officers involved be punished. They expressed the view that precise and detailed instructions should be issued to all police stations in the country regarding the treatment of Roma by the police. Reports of the incident were subsequently published in several Greek newspapers.

On 12 May 1998, responding to the publicity that had been generated, the Ministry of Public Order launched an informal inquiry into the matter.

After the incident received greater public attention, the Greek police headquarters requested that the internal investigation be upgraded to a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση), which started on 26 May 1998.

The report on the findings of the Sworn Administrative Inquiry was issued on 18 May 1999. It identified the officers who had arrested the applicants and found that their conduct during the arrest was “lawful and appropriate”. It concluded that two other police officers, Mr Tsikrikas and Mr Avgeris had treated the applicants “with particular cruelty during their detention”. The report noted that the first applicant had consistently identified the above officers in his sworn depositions of 30 June and 23 October 1998 and that the second applicant had also consistently and repeatedly identified throughout the investigation Mr Tsikrikas as the officer who had abused him.

More specifically, it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and/or kicking them in the stomach. It further found that although the two officers had denied ill-treating the applicants, neither officer was able to “provide a convincing and logical explanation as to where and how the above plaintiffs were injured, given that according to the forensic doctor the ill-treatment occurred during the time they were in police custody”.

As a result, it was recommended that disciplinary measures in the form of “temporary suspension from service” be taken against both Mr Tsikrikas and Mr Avgeris. The inquiry exculpated the other police officers who had been identified by the applicants. Despite the above recommendation, neither Mr Tsikrikas nor Mr Avgeris were ever suspended.

On 14 July 1999 the Chief of the Greek Police fined Mr Tsikrikas 20,000 drachmas (less than 59 euros) for failing to “take the necessary measures to avert the occurrence of cruel treatment of the detainees by his subordinates”. The Chief of the Greek Police acknowledged that the applicants had been ill-treated. He stated that “the detainees were beaten by police officers during their detention ... and were subjected to bodily injuries”.

On 1 July 1998 the applicants and the first applicant’s father filed a criminal complaint against the Deputy Commander in Chief of the Mesolonghi police station and “all other” officers of the police station “responsible”.

On 3 July 1998 the first applicant gave a sworn deposition relating to his allegations of ill-treatment. He claimed that during his arrest, he had been beaten on the head with a truncheon by a “tall, blond” policeman, who also gave him a beating in the police station and that he had been subjected to racial insults (see paragraph 14 above).

On 18 December 1998 the Mesolonghi Public Prosecutor asked the Mesolonghi investigating judge to conduct a preliminary inquiry into the incident (προανάκριση). The findings of the inquiry were then forwarded to the Prosecutor of the Patras Court of Appeal. In January 2000 the Patras Court of Appeal ordered an official judicial inquiry into the incident (κύρια ανάκριση).

On 27 January 1999 and 1 February 2000 the first applicant stated that the behaviour of the police officers “was not so bad”, that he wanted “this story to be over” and that he did not want “the police officers to be punished”. On the same dates the second applicant repeated that he had received a beating at the hands of Mr Tsikrikas, but said that the police officers’ behaviour was “rightfully bad” and that he did not want them to be prosecuted. He apologised to the owner of the kiosk and said that he wanted “this story to be over” because he has joining the army and wanted “to be on the safe side”.

On 31 August 2000 the Mesolonghi Public Prosecutor recommended that three police officers, Mr Tsikrikas, Mr Kaminatos and Mr Skoutas, be tried for physical abuse during interrogation.

On 24 October 2000 the Indictment Division of the Mesolonghi Criminal Court of First Instance (Συμβούλιο Πλημμελειοδικών) committed Mr Tsikrikas for trial. It found that “[the] evidence shows that Mr Tsikrikas ill-treated [the applicants] during the preliminary interrogation, in order to extract a confession from them for the attempted theft ... and any similar unsolved offences they had committed in the past”. The Indictment Division further stated that Mr Tsikrikas had failed to provide a plausible explanation as to how the applicants were injured during their interrogation and noted that they had both identified Mr Tsikrikas, without hesitation, as the officer who had ill-treated them. On the other hand, it decided to drop the criminal charges against Mr Kaminatos and Mr Skoutas on the ground that it had not been established that they were present when the events took place (bill of indictment no. 56/2000).

Mr Tsikrikas’s trial took place on 8 and 9 October 2001 before the three-member Patras Court of Appeal. The court heard several witnesses and the applicants, who repeated their allegations of ill-treatment (see paragraphs 10-14 above). Among others, the court heard Mr Dimitras, a representative of the Greek Helsinki Monitor, who stated that the said organisation was monitoring the situation of Roma in Greece and that the incident was reported to him during a visit to the Roma/Gypsy camps. He claimed that he was horrified when he saw the injuries on the applicants’ bodies and that the latter were initially afraid to file a complaint against the police officers. Mr Dimitras also referred to the actions subsequently taken by the Greek Helsinki Monitor in order to assist the applicants. The court also read out, among other documents, the Greek Helsinki Monitor’s and the Greek Minority Rights Group’s open letter to the Ministry of Public Order (see paragraph 17 above).

On 9 October 2001 the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty (decision no. 1898/2001). In particular, the court first referred to the circumstances surrounding the applicants’ arrest and to the subsequent involvement of members of the Greek Helsinki Monitor in the applicants’ case, noting their role in monitoring alleged violations of human rights against minorities. Taking also into account the forensic doctor’s findings, the court reached the following conclusion:

“... Admittedly, the second applicant had clashed with Mr Pavlakis. Further, given the applicants’ light clothing, it was logical that they were injured during the fight that took place when they were arrested. Even if some of the applicants’ injuries were inflicted by police officers during their detention, it has not been proved that the accused participated in this in one way or the other, because he was absent when they arrived at the police station and did not have contact with them until approximately two hours later, on his arrival at the police station. In his sworn deposition dated 3 July 1998, the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall, blond police officer (a description that does not match the features of the accused) and that the same police officer had also beaten him during his detention. However, the accused was not present when the applicants were arrested. If the applicants had indeed been beaten by police officers during their detention, they would have informed their relatives who arrived at the police station that same night. Thus, the accused must be found not guilty.”

Under Greek law, the applicants, who had joined the proceedings as civil parties, could not appeal against this decision.

In its country reports of the last few years, the European Commission against Racism and Intolerance at the Council of Europe (ECRI) has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.

The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the European Union (EU) network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal.

In its second report on Greece, adopted on 10 December 1999 and published on 27 June 2000, ECRI stated, inter alia:

“26. There have been consistent reports that Roma/Gypsies, Albanians and other immigrants are frequently victims of misbehaviour on the part of the police in Greece. In particular, Roma/Gypsies are often reported to be victims of excessive use of force -- in some cases resulting in death -- ill-treatment and verbal abuse on the part of the police. Discriminatory checks involving members of these groups are widespread. In most cases there is reported to be little investigation of these cases, and little transparency on the results of these investigations. Although most of these incidents do not generally result in a complaint being filed by the victim, when charges have been pressed the victims have reportedly in some cases been subjected to pressure to drop such charges. ECRI stresses the urgent need for the improvement of the response of the internal and external control mechanisms to the complaints of misbehaviour vis à vis members of minority groups on the part of the police. In this respect, ECRI notes with interest the recent establishment of a body to examine complaints of the most serious cases of misbehaviour on the part of the police and emphasises the importance of its independence and of its accessibility by members of minority groups.

ECRI also encourages the Greek authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti-discrimination standards. Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ...

As noted by ECRI in its first report, the Roma/Gypsy population of Greece is particularly vulnerable to disadvantage, exclusion and discrimination in many fields...

Roma/Gypsies are also reported to experience discrimination in various areas of public life...They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ...”

In its third report on Greece, adopted on 5 December 2003 and published on 8 June 2004, ECRI stated, inter alia:

“67. ECRI notes with concern that since the adoption of its second report on Greece, the situation of the Roma in Greece has remained fundamentally unchanged and that overall they face the same difficulties – including discrimination - in respect of housing, employment, education and access to public services...

ECRI welcomes the fact that the government has taken significant steps to improve the living conditions of Roma in Greece. It has set up an inter-ministerial committee for improving the living conditions of Roma...

...ECRI deplores the many cases of local authorities refusing to act in the interests of Roma when they are harassed by members of the local population. It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the Roma community to the same extent as to any other Greek citizen...

ECRI expresses concern over serious allegations of ill-treatment of members of minority groups, such as Roma and both authorised and unauthorised immigrants. The ill-treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody. ECRI is particularly concerned over the existence of widespread allegations of improper use of firearms, sometimes resulting in death. It is equally concerned over reports of ill-treatment of minors and expulsion of non-citizens outside of legal procedures.

The Greek authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses. For example, the Internal Affairs Directorate of the Greek Police was established in 1999 and is responsible for conducting investigations, particularly into acts of torture and violation of human dignity. The police –specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above-mentioned body when dealing with a case in which a police officer is implicated. The Greek Ombudsman is also competent for investigating, either on request or ex officio, allegations of misbehaviour by a police officer, but he is only entitled to recommend that appropriate measures be taken. ECRI welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill-treatment, particularly involving non-citizens, to be prevented and prosecuted with the appropriate degree of severity. The authorities have pointed out that instances of ill-treatment were primarily due to difficult conditions of detention. ECRI notes with satisfaction cases of law enforcement officials having been prosecuted, and in some cases penalised, for acts of ill-treatment. However, human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence, whose prosecution has not lead to results or even been initiated. ECRI deplores such a situation and hopes that it will no longer be tolerated.”

In their joint report published in April 2003 (“Cleaning Operations – Excluding Roma in Greece”), the European Roma Rights Center and the Greek Helsinki Monitor, which represent the applicants in the instant case, stated, inter alia:

“ERRC/GHM monitoring of policing in Greece over the last five years suggests that ill-treatment, including physical and racist verbal abuse, of Roma in police custody is common. Although Greek authorities deny racial motivation behind the ill-treatment of Roma, Romani victims with whom ERRC/GHM spoke testified that police officers verbally abused them using racist epithets.

Anti-Romani sentiment among police officers often leads to instances of harassment, inhuman and degrading treatment, verbal and physical abuse, and arbitrary arrest and detention of Roma at the hands of police. The ERRC and GHM regularly document ill-treatment of Roma at the hands of the police, either at the moment of arrest or in police custody. Police officers’ use of racial epithets in some cases of police abuse of Roma is indicative that racial prejudice plays a role in the hostile treatment to which officers subject Roma...”

According to Article 2 § 1 of the Greek Constitution, the “value of the human being” is one of the fundamental principles and a “primary obligation” of the Greek State.

Article 5 § 2 of the Constitution reads as follows:

“All persons living within the Greek territory shall enjoy full protection of their life, honour and liberty irrespective of nationality, race or language and of religious or political beliefs. Exceptions shall be permitted only in cases provided for by international law...”

Law no. 927/1979 (as amended by Law no. 1419/1984 and Law no. 2910/2001) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination.

European Union Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively:

“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

Paragraph 1 shall not apply to criminal procedures.

Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”


Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Violation of Art. 13;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

The applicant was born in 1926 and lives in Ashdod, Israel.

On 9 January 1998 the applicant arrived in Russia. On crossing the border, he omitted to report a certain sum of cash in his customs declaration and the customs office seized his money. The applicant appealed to a court.

On 30 July 1999 the Khostinskiy District Court of Sochi set aside the seizure order and ordered the Treasury to repay the applicant the equivalent in Russian roubles of the 1,600 United States dollars (USD) seized. On 9 September 1999 the Krasnodar Regional Court upheld that judgment on appeal.

At the applicant's request the District Court amended the operative part of the judgment on 15 February 2001 and ordered the Treasury to pay USD 1,600 into the applicant's bank account in Israel.

On 10 April 2001 the District Court issued a writ of execution and sent it to the bailiffs' service in Moscow. On 30 October 2001 the Moscow bailiffs sent the writ back to Sochi, for reasons which are unclear.

After the judgment in his favour had remained unenforced for more than a year, the applicant complained to the Court (application no. 15021/02).

On 18 November 2004 the Court delivered judgment in the above case. It noted the Government's acknowledgment that the writ of execution had been lost in the process of being transferred from the Moscow bailiffs to the Sochi office. However, in the Court's view, the logistical difficulties experienced by the State enforcement services could not serve as an excuse for not honouring a judgment debt; the applicant's complaints concerning the non-enforcement of the judgment should have prompted the competent authorities to investigate the matter and to ensure that the enforcement proceedings were brought to a successful conclusion. The Court found a violation of the applicant's “right to a court” under Article 6 § 1 of the Convention and of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (see Wasserman v. Russia, no. 15021/02, §§ 3840 and 43-45, 18 November 2004).

The Court granted the applicant's claim for the interest on the judgment debt. It rejected, however, the claim for the outstanding amount on the ground that “the Government's obligation to enforce the judgment at issue ha[d] not been yet extinguished and the applicant [was] still entitled to recover this amount in the domestic enforcement proceedings” (see Wasserman, cited above, § 49). It also made awards in respect of nonpecuniary damage and costs and expenses (§§ 50-53).

In the meantime, on 17 February 2004, a duplicate of the writ was issued and presented to the Ministry of Finance for enforcement.

In its observations on the applicant's claim (see below), the Ministry of Finance mentioned that on 21 June 2004 payment of the outstanding amount into the applicant's account in Israel had been authorised.

By letter of 17 May 2005 the Ministry of Finance informed the applicant that it would not enforce the judgment because the District Court's decision of 15 February 2001 had misspelled one letter in his patronymic name and because the writ of execution had incorrectly designated the debtor as the “Chief State Directorate of the Federal Treasury” (the correct name of the entity does not contain the word “State”).

By decision of 5 October 2005 the District Court corrected the spelling mistake in the decision of 15 February 2001.

On 3 October 2006 the sum of USD 1,569 was credited to the applicant's bank account in Israel. An amount of USD 31 was withheld by the State-owned bank Vneshtorgbank as commission for the wire transfer.

On 12 May 2003 the applicant brought a civil claim against the Moscow bailiffs, the Ministry of Justice and the Ministry of Finance. He sought compensation for pecuniary and non-pecuniary damage allegedly incurred as a result of the unlawful actions of the bailiffs and the continued failure to enforce the judgment.

On 25 August 2004 the Zamoskvoretskiy District Court of Moscow found that the Moscow bailiffs had acted unlawfully in that they had never instituted enforcement proceedings and had had no legal grounds for sending the writ back to Sochi. However, it refused the claim for damages, finding that the applicant had not incurred any pecuniary damage as a result of the non-enforcement of the judgment of 30 July 1999. As to nonpecuniary damage, Russian law did not provide for compensation in situations such as the applicant's.

On 30 March 2005 the Moscow City Court dismissed an appeal by the applicant, reproducing verbatim the text of the District Court's judgment.

The applicant lodged an application for supervisory review. On 1 June 2006 the Presidium of the Moscow City Court granted his application, quashed the judgments of 25 August 2004 and 30 March 2005 in part and remitted the claim for damages for fresh examination by the District Court.

Between 25 September 2006 and 22 February 2007 the District Court listed nine hearings which were subsequently adjourned for various reasons.

On 22 February 2007 the Zamoskvoretskiy District Court issued a new judgment. It rejected the applicant's claim in respect of pecuniary damage on the ground that no admissible evidence had been produced in support of it. It accepted the claim for non-pecuniary damage in part, finding as follows:

“...the court takes into account the fact that the Zamoskvoretskiy District Court judgment of 25 August 2004 found the [Moscow] bailiffs' actions to have been unlawful, and the fact that enforcement of the judgment was protracted and did not actually occur until 3 October 2006. This was not disputed by the parties.

The court therefore finds that there has been a violation of the claimant's right to a fair hearing within a reasonable time on account of an unlawful delay in the enforcement of a judicial decision, which implies that just compensation must be paid to the individual who sustained damage as a result.

and the physical and mental suffering caused to the claimant on account of the belated enforcement of the judgment, and also the fact that the claimant is a pensioner and [has the title] 'Honoured Coach of Russia', the court considers it necessary to award him 8,000 Russian roubles as compensation for non-pecuniary damage, to be paid by the Ministry of Finance.

The court finds no grounds to award a larger amount of compensation as the claimant did not produce evidence showing that the defendants had caused him physical or mental suffering of an irreversible nature...”

The District Court further rejected the applicant's claim for legal costs and expenses.

On 7 August 2007 the Moscow City Court upheld that judgment on appeal, reproducing verbatim the District Court's reasoning.

A court may hold the tortfeasor liable for non-pecuniary damage caused to an individual by actions impairing his or her personal nonproperty rights or affecting other intangible assets belonging to him or her (Articles 151 and 1099 § 1 of the Civil Code).

Compensation for non-pecuniary damage sustained as a result of the infringement of an individual's property rights is recoverable only in the cases provided for by law (Article 1099 § 2 of the Civil Code).

Compensation for non-pecuniary damage is payable irrespective of the tortfeasor's fault if damage was caused to an individual's life or health as a result of unlawful criminal prosecution or dissemination of untrue information, and in the other cases provided for by law (Article 1100 of the Civil Code).

In ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it made State liability for damage caused by the administration of justice subject to special conditions. Nevertheless, it stated explicitly that the term “administration of justice” did not cover the judicial proceedings in their entirety but extended only to judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion of “administration of justice”. State liability for the damage caused by such procedural acts or failures to act, such as a breach of the reasonable-time requirement in relation to court proceedings, could arise even in the absence of a final criminal conviction against a judge, if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, however, that the constitutional right to compensation from the State for the damage caused should not be bound up with the individual fault of the judge concerned. An individual should be able to obtain compensation for any damage incurred as a result of the violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds for and procedure governing State compensation for damage caused by unlawful acts or failures to act of a court or a judge, and should determine territorial and subject-matter jurisdiction in respect of such claims.


The applicant, Mr Erol Direkçi, is a Turkish national who was born in 1950 and lives in Ankara. He was represented before the Court by Mr L. Kanat, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court.

On 15 October 1995 the applicant’s son, Erkut Direkçi, participated in a demonstration organised by a trade union in Ankara. On the same day he was taken into custody.

On 27 October 1995 he was brought before the Ankara State Security Court which ordered his detention on remand.

On an unspecified date the Public Prosecutor at the Ankara State Security Court filed a bill of indictment, charging Erkut Direkçi under Article 168 § 2 of the Criminal Code with membership of an illegal organisation, namely the MLKP (the Marxist-Leninist Communist Party).

On 10 September 1996 Erkut Direkçi’s lawyer submitted a petition to the Ankara State Security Court for the establishment by the Ankara Numune Hospital of a medical report on his client’s state of health.

Between 10 and 16 September 1996 Erkut Direkçi was examined at the Ankara Numune Hospital and diagnosed with liver cancer. The medical reports submitted by the applicant confirm the diagnosis. The applicant also submitted two medical reports recommending one or two months’ rest for his son.

On 17 September 1996 Erkut Direkçi’s lawyer requested the Ankara State Security Court to release his client on account of his serious illness.

On the same day the Ankara State Security Court ordered Erkut Direkçi’s release pending trial.

On 4 February 1997 the Ankara State Security Court convicted Erkut Direkçi of membership of the MLKP under Article 168 § 2 of the Criminal Code and sentenced him to 12 years and 6 months’ imprisonment. The Court also ordered his detention in his absence.

On 5 February 1997 Erkut Direkçi’s lawyer lodged an appeal against the decision regarding his client’s detention.

On the same day the Ankara State Security Court dismissed the appeal, taking into account the serious nature of the offence.

In August 1997 Erkut Direkçi left for Germany in order to obtain medical treatment.

On 24 September 1997 his lawyer requested the Court of Cassation to quash the judgment and the detention order of the Ankara State Security Court.

On 6 November 1997 the Court of Cassation upheld the judgment of the Ankara State Security Court.

Erkut Direkçi died in Germany on 12 December 1997.


The applicant, Norbert Wingerter, is a German national, who was born in 1938 and lives in Heilbronn. The respondent Government were represented by Mr Klaus Stoltenberg, Ministerialdirigent.

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

On 27 September 1996 the Stuttgart District Disciplinary Court for Lawyers (Anwaltsgericht) issued a reprimand (Warnung) against the applicant for having violated professional rules (anwaltliche Pflichtverletzung).

In its reasoning, the Disciplinary Court noted that in 1994 the applicant had assisted Mr K., a foreigner, who had been accused in criminal proceedings in Mannheim, of having acted as an accessory to forgery, and that this trial had resulted in an acquittal for lack of jurisdiction of the German courts. In October 1994 the applicant had appealed against the bill of costs (Kostenfestsetzungbeschluss) as far as the fixing of his fees, to be borne by the Treasury, was concerned. In his appeal, the applicant, objecting to a refusal to reimburse his travelling expenses from Heilbronn to Mannheim, had argued that the intervention of a lawyer outside of Mannheim had been necessary. According to him,

“the Mannheim judiciary had not been able to cope with the difficulty of the case. From the very beginning, it had been obvious that the accused had to be acquitted. Nevertheless, the public prosecutor had applied for a penal order and the court had issued one. The quality of the Mannheim lawyers is not superior to the quality of the judges and public prosecutors. ... It had been necessary to appoint a non-Mannheim lawyer to have justice done. Had the accused been assisted by a Mannheim lawyer, the penal order would have been undoubtedly been confirmed at the trial.”

In March 1995, in the course of investigations brought against him, the applicant had submitted that this reasoning had been necessary to argue his appeal. He had added that his opinion on the quality of Mannheim judges, public prosecutors and lawyers was correct, as any first-semester law student would have known that the charge against his client was unfounded. Moreover, he had evoked the past of a Mannheim judge and two Mannheim lawyers under the Nazi regime. In particular, regarding judge W., he had referred to judgments rendered in 1944, convicting persons for having criticised the treatment of Jews or for failure to differentiate, in their charitable work, between their own people and Jews. Regarding lawyer B., he had mentioned a statement, to be found in Mr. B’s doctoral thesis, according to which a medical practitioner keeping friendship with a Jew violated the honour of the profession. According to him, their merits under the Nazi regime had contributed to their professional success after 1945.

The Disciplinary Court considered that the applicant had thereby violated his professional duties within the meaning of section 43 a (3) of the Federal Regulations for Lawyers (Bundesrechtsanwaltsordnung).

The Disciplinary Court examined the applicant’s above-mentioned statements in the light of these principles and found that the course of the criminal proceedings against Mr. K. had not been correct and could have justified even harsh criticism of the officials concerned. However, the applicant’s general attack charging the Mannheim judiciary of complete incompetence was unjustified and amounted to a deliberate disparagement of all members of the Mannheim judiciary on criminal matters. These considerations applied even more to his subsequent statements that in Mannheim anti-Semitic and Nazi judges had made a career because of their work or their attitude under the Nazi regime. Such statements had been all the more disproportionate as the claim for reimbursement had amounted to a mere 203 German marks (DEM).

On 15 March 1997 the Baden-Württemberg Disciplinary Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed the applicant’s appeal and the Court ordered that the case should not be subject to an appeal on points of law.

In its decision, the Disciplinary Court of Appeal considered that the applicant had been entitled to argue that his assistance in the criminal proceedings at issue had been necessary and that his qualifications were superior to those of Mannheim lawyers.

Moreover, the allegation that ‘the quality of Mannheim lawyers was not superior to the quality of Mannheim judges and public prosecutors’ could have been read as applying only to those judges and prosecutors specifically involved in the procedure against Mr. K. The context in which the applicant made his statements shows, however, that that allegation was intended to characterise all Mannheim judges, public prosecutors and lawyers as incapable of recognising or remedying obvious legal errors. This assessment was confirmed in the applicant’s further submissions of March 1995.

According to the Disciplinary Court of Appeal, the wholesale allegation that the Mannheim judges, public prosecutor’s and lawyers were incompetent in legal matters was disparaging and made without good cause. The applicant had no reason or justification to disparage the legal skills of all Mannheim judges, public prosecutors and lawyers. Even the obvious legal errors committed in the criminal proceedings against Mr K. could not justify disparaging whole groups of professionals. The insulting remarks made by the applicant had not been necessary to justify the need for having recourse to a non-local lawyer.

The applicant’s submissions of March 1995 did not, in the Disciplinary Court of Appeal’s view, constitute a further breach of professional duties. Rather, the applicant had acted for the protection of his interests in the disciplinary proceedings against him. Moreover, to the extent that he had referred to the Nazi past of certain Mannheim lawyers and of a judge, he had not, in the Court of Appeal’s view, made a general statement.

On 26 January 1998 the Lawyers’ Senate (Senat für Anwaltssachen) at the Federal Court of Justice dismissed the applicant’s request for leave to appeal on points of law.

On 11 March 1998 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

According to section 43 of the Federal Regulations for Lawyers, a lawyer has to practise his profession conscientiously, and, whether in pursuit of his profession or otherwise, has to prove himself worthy of the respect and trust which his position requires.

As one of the basic duties, section 43a(3) provides that in his professional conduct, a lawyer has to respect the duty of objectivity (Sachlichkeit). Such conduct lacks objectivity if it involves a deliberate dissemination of untrue or otherwise disparaging statements which find no ground in the behaviour of other persons involved in the proceedings or in the course of the proceedings.

Section 113(1) of the Federal Regulations provides that disciplinary measures shall be taken against a lawyer who is liable of a breach of duties as defined by the Regulations or the rules on professional conduct (Berufsordnung).

According to section 114(1), the possible disciplinary measures are: (1) a warning; (2) a reprimand; (3) a fine not exceeding DEM 50,000; (4) a temporary prohibition on practising as counsel in certain legal fields; or (5) a permanent exclusion from the Bar. The disciplinary measures of reprimand and fine may be imposed simultaneously (section 114(2)).


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

The applicant was born in 1955 and lives in Yaroslavl.

Between 1991 and 1998 the applicant worked as a senior accountant in the private company Gatchina.

On 2 July 1998 a local police investigator (Заволжский районный отдел внутренних дел г. Ярославля) initiated criminal proceedings on suspicion of misappropriation of the company's assets by some of its employees.

On 22 July 1998 an initial interview was held with the applicant in the presence of her counsel.

The applicant was formally charged on 24 July 1998.

On 22 July 1998 the applicant was remanded in custody pending the investigation.

On 24 and 31 July 1998 an investigator again questioned the applicant.

The applicant's repeated complaints concerning her detention were rejected by decision of the Frunzenskiy District Court of the city of Yaroslavl (Фрунзенский районный суд г. Ярославля) on 10 November 1998 and 13 January 1999. The decision of 10 November 1998 was upheld on appeal by the Yaroslavl Regional Court (“the Regional Court” – Ярославский областной суд) on 8 December 1998.

On 22 June 1999 the applicant was released on the ground that all the investigative measures had been concluded and on health grounds. The investigator imposed a measure of restraint on her in the form of an undertaking not to leave her place of residence.

It appears that while in detention the applicant also repeatedly complained that she was unfit for custody on medical grounds. By decisions dated 14 October 1998 and 1 June 1999 the investigator twice ordered a medical examination of the applicant.

The examinations took place between 23 October and 11 November 1998 and from 7 June to 1 July 1999 respectively, and found the applicant to be in good health.

On 13 January 1999 the investigator opened a new criminal case against the applicant, this time for alleged fraud. The two cases against the applicant were joined.

According to the Government, between 1 July 1999 and 29 March 2000 the applicant had access to the case file and availed herself of that opportunity on eight occasions.

By decision of 29 March 2000 the proceedings were suspended owing to the applicant's state of health. She underwent in-patient treatment in a hospital.

On 17 July 2000 the proceedings resumed. Over the next month the investigator brought similar charges against two other people and ordered a further medical examination of the applicant.

From 15 August 2000 the applicant and the other defendants in the case had access to the case file again. It appears that the other defendants and the applicant's counsel completed their study of the case by 20 and 27 November 2000 respectively.

As regards the applicant, she again underwent inpatient treatment between 16 August and 1 September 2000 and only started to familiarise herself with the case file on 9 October 2000.

On 27 November 2000 the investigator, fearing that the applicant might cause delays in the proceedings, set a deadline of 27 December 2000 for the applicant to familiarise herself with the case file.

In January 2001 the deadline was extended until 24 February 2001.

On 28 February 2001 the preliminary investigation of the applicant's case was concluded and the bill of indictment was prepared and signed by a local prosecutor. The applicant and two co-defendants were charged with fraud.

On 1 March 2001 the case was transferred to the Zavolzhskiy District Court of Yaroslavl (“the District Court” – Заволжский районный суд г. Ярославля) for trial.

On 26 April 2001 the applicant submitted to the court a number of documents allegedly confirming her innocence. In response and at the prosecutor's initiative, the court ordered the Centre for Forensic Examinations of the Russian Ministry of Justice to examine the documents with a view to verifying their authenticity. The court also stayed the proceedings in the case pending the outcome of the expert examinations.

On 27 June 2001 the Centre responded that it was impossible to carry out the expert examinations requested by the court.

On 23 August 2001 the court decided to examine the documents with the assistance of a different expert body, the North-Western Regional Centre for Forensic Examinations (“the Centre”). However, on 21 December 2001 the Centre informed the court that, owing to malfunctioning of technical equipment, no examination could take place.

Having consulted counsel for the defence, the court fixed 20 May 2002 as the date of the next hearing. It appears that the hearing of 20 May 2002 did not take place and that the proceedings were adjourned until 14 August 2002 and then until 27 November 2002.

On 27 November 2002 the proceedings resumed.

By decision of 6 December 2002, taken at the prosecutor's initiative, the court decided again to order an expert examination. However, on 6 May 2003 the Centre again refused and informed the court that no such examination was possible. According to the applicant, the Centre could not carry out that examination because the court had failed to furnish it with the necessary documents in time.

On 31 July 2003 the court for the third time requested the Centre to carry out the examination. By letter of 27 November 2003 the Centre acceded to the request but asked for further information. It appears that the necessary information was furnished.

The court received a completed expert report on 30 July 2004 and scheduled the next hearing for 30 November 2004. On that date the proceedings did not take place because of the judge's involvement in a different set of proceedings. The case was adjourned until 6 December 2004. The hearings of 6, 7 and 8 December did not take place owing to the failure of counsel for one of the defendants to attend.

The proceedings resumed on 9 December 2004 and lasted until 15 December 2004, when they were interrupted by the illness of a lay assessor.

The proceedings continued on 12 January 2005 and lasted, with interruptions, until 25 February 2005. On the latter date the court adjourned the hearing first until 14 March 2005 owing to the illness of counsel for one of the defendants and then until 14 April 2005, citing the involvement of counsel for the same defendant in different sets of proceedings.

The hearing of 19 April 2005 was adjourned with reference to the need to secure the attendance of some of the witnesses by force.

On 22 April 2005 the hearings did not take place as the applicant requested that an additional witness be summoned; on 25, 27 and 28 April 2005 the applicant's counsel and one of the defendants failed to appear.

On 3 and 11 May 2005 the prosecutor requested that the proceedings be adjourned, referring to a lack of time to prepare for the judicial pleadings stage. The requests were granted.

On 20 May 2005 the proceedings were adjourned at the applicant's request, as apparently her counsel was ill.

It appears that by judgment of 28 July 2005 the District Court convicted the applicant as charged.

The judgment was quashed on appeal by the Regional Court on 28 October 2005. The case was remitted for a fresh examination at first instance.

It appears that the case is currently pending before the trial court.


The applicant is a Turkish national, born in 1965 and living in Turkey. He is represented before the Court by Mr L. Weh, a lawyer practising in Bregenz.

A.

In November 1991 the applicant arrived in Austria. On 1 June 1992 he married an Austrian citizen. Subsequently he requested a work permit and a residence permit. In June 1992 he was given a work permit. The residence permit, however, was refused.

On 12 August 1993 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) issued a deportation order (Ausweisungsbescheid) against the applicant. It found that the applicant had no residence permit and that his stay in Austria was therefore unlawful. Thus, his removal from Austria was necessary in the public interest. The applicant, assisted by counsel, instituted appeal proceedings, which were terminated in April 1994 by the decision of the Administrative Court (Verwaltungsgerichtshof) which found that the deportation order was lawful. These proceedings were the issue of Application No. 25050/94 which was declared inadmissible by the European Commission of Human Rights on 16 January 1996.

On 11 May 1994 the District Administrative Authority ordered the applicant to leave Austria.

On the basis of the deportation order, the applicant was arrested in October 1994. On 12 October 1994 the applicant, assisted by lawyer, appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) against his detention with a view to expulsion. He argued that his detention was not necessary because five months had already elapsed since the Authority’s order to leave Austria in May 1994. Besides, the Administrative Court’s decision of April 1994 was no longer enforceable for lapse of time. Furthermore, he requested the resumption of the expulsion proceedings and a hearing before the Independent Administrative Panel.

On 18 October 1994, having taken into account the case-file and the Administrative Authority’s comments on the applicant’s appeal (Gegenschrift), the Independent Administrative Panel dismissed the appeal and upheld the applicant’s detention. It found that it was not competent to review the lawfulness of the underlying deportation order. It noted that the Administrative Court had found that the measure was lawful and that the applicant had been ordered to leave Austria on several occasions, but had not complied. He had been lawfully detained with a view to enforcing the expulsion, in accordance with Section 41 of the Aliens Act (Fremdengesetz). It noted further that the applicant was mistaken when arguing that the deportation order was no longer enforceable. Finally, it found that no hearing was necessary because the factual basis was clear from the file.

On 29 November 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that his detention was not necessary and that the Independent Administrative Panel had violated Article 5 § 4 of the Convention as it had not held a hearing and had not communicated the District Authority’s comments on his appeal.

On 28 February 1995 the Constitutional Court refused to deal with the case and transferred it to the Administrative Court. It found that Article 5 § 4 of the Convention did not guarantee a public hearing, and that access to the file as well as the submission of any further observations had been possible for the applicant throughout the proceedings.

On 10 October 1995 the Administrative Court dismissed the complaint. It found that the detention with a view to expulsion had been necessary. As to a hearing, access to the file and the possibility to submit further information, it agreed with the Constitutional Court. The Administrative Court’s decision was served upon the applicant on 27 December 1995.

B. Relevant domestic law

Section 41 of the Aliens Act 1992 (Fremdengesetz), applicable at the material time, allows the arrest and detention of an alien if these measures are necessary to ensure, inter alia, expulsion. The detainee must be released as soon as the grounds for detention cease to exist. The maximum period of detention is limited to two months (Section 48).

Everyone arrested and detained under the Aliens Act has the right to apply to the competent Independent Administrative Panel and to challenge the lawfulness of the arrest and the detention order (Section 51 § 1). An appeal may be filed either directly with the Independent Administrative Panel or with the authority of first instance. In the latter case this authority has to present the appeal to the Independent Administrative Panel within a maximum delay of two days (Section 51 § 2). Besides, the detaining authority has to inform the Panel immediately in case of the applicant’s release (Section 51 § 3). If the detainee, however, is not released before, the Independent Administrative Panel has to decide on the continuation of the detention within one week (Section 52 § 2).

Section 17 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) provides for the right to inspect the case-files. This section is applicable to proceedings concerning the review of an arrest or a detention with a view to expulsion.


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5

The applicants were born in 1978, 1977, 1979, 1983, 1980 and 1978 respectively and live in Antalya.

On 27 April 2001 the applicants were taken into custody by police officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate. According to the arrest and search protocols, the applicants were arrested in the course of a police operation carried out against an illegal organisation, namely the DHKPC (the Revolutionary People's Liberation Party-Front) as they were considered to be involved in the activities of this organisation at the university.

On 29 April 2001 the deputy director of the Anti-Terrorism Branch of the Diyarbakır Security Directorate requested the public prosecutor at the Diyarbakır State Security Court to extend the applicants' custody period for two days. The public prosecutor at the Diyarbakır State Security Court granted the requested extension.

On 1 May 2001 the Diyarbakır Security Directorate requested the Diyarbakır State Security Court to extend the custody period for a further six days. The single judge of the State Security Court duly extended the custody period for six days starting from 1 May 2001.

On 3 May 2001 the applicants made statements before the police.

On 4 May 2001 the applicants were brought before a doctor, who noted that there were no signs of ill-treatment on their bodies.

On the same day, the applicants made statements before the public prosecutor at the Diyarbakır State Security Court and subsequently, a single judge of the state security court, who ordered that Ertuğrul Saraçoğlu, Göksel Avcı, and Ali Kemal Mart be detained on remand and the other applicants be released. Before the judge, one of the applicants, Göksel Avcı alleged that he had been subjected to ill-treatment while in custody.

On 8 May 2001 the applicants' representative filed an objection with the court requesting that Ertuğrul Saraçoğlu, Göksel Avcı and Ali Kemal Mart be released. In his petition, the representative maintained, inter alia, that the applicants had been subjected to different types of ill-treatment while in custody. He alleged that the applicants had been beaten, deprived of food and water, that their testicles had been squeezed and electric shocks had been administered.

On 11 May 2001 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicants with membership of the DHKP-C under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.

On 4 July 2001 the Diyarbakır State Security Court ordered the applicants' release pending trial, holding that the relevant evidence had been collected and that the applicants were students and had to take their exams at the university.

The applicants maintained before the trial court that they had signed their statements under duress while in police custody. Göksel Avcı reiterated his allegation of ill-treatment.

On 24 January 2002 the Diyarbakır State Security Court acquitted the applicants of the charges against them.

On 21 March 2002 the judgment of the first-instance court became final as neither the public prosecutor nor the applicants filed an appeal against it.

On 24 April 2002 three of the applicants, namely Ali Kemal Mart, Göksel Avcı and Ertuğrul Saraçoğlu, together with another person M.D., who had also been in police custody with the applicants between 27 April and 4 May 2001, initiated proceedings before the Diyarbakır Assize Court and requested compensation for the time they had spent in police custody. On 10 December 2003 the court awarded 500,000,000 Turkish liras (TRL) –approximately 300 euros- each to Ali Kemal Mart, Göksel Avcı, Ertuğrul Saraçoğlu and TRL 250,000,000 to M.D. in respect of non-pecuniary compensation.

The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released.

Section 1 of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained provides:

“Compensation shall be paid by the State in respect of all damage sustained by persons:

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or

(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”


Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

The applicant was born in 1942 and resides in the city of Khmelnitskiy, Ukraine.

At the material time the applicant worked as a lawyer in a private company “Naddnistryanka”.

On 29 November 1994 the General Prosecutor’s Office (hereinafter – the GPO) instituted criminal proceedings against the applicant for bribing. On 14 December 1994 the Deputy Prosecutor General sanctioned the applicant’s arrest and detention. On 16 December 1994 the applicant was arrested and detained until 24 June 1996.

While in detention, the applicant was allegedly subjected to psychological pressure by the investigation officers. Prior to interrogation the applicant allegedly was placed in a tiny (2m2) cold room without windows, where he had to stay for several hours. The applicant states that he lost consciousness during interrogations and was interrogated while being seriously ill. In detention and afterwards the applicant suffered from chronic bronchitis and chronic neuritis. The applicant was beaten by one of the cellmates. The applicant maintained that the offender was a former Security Service officer. The applicant further alleges that drugs were added to his meals. According to the applicant, his family members were not allowed to see him in detention. On his numerous complaints about such treatment the applicant received answers that no violations had been revealed during pre-trial investigation in his case.

After his release the applicant was on a written undertaking not to abscond until 12 April 1999. In 1995-1999 criminal charges in the applicant’s case were several times changed. By 12 April 1999 the criminal case against the applicant was closed. By a prosecutor’s decision of 13 June 1999 the applicant was awarded UAH 6,502.37 (at the material time – EUR 1,568.28) in compensation for material damage.

In June 1998 the applicant instituted proceedings in the Khmelnitskiy City Court against the Security Service of Ukraine claiming UAH 500,000 in compensation for moral damage. The applicant later raised his claims to UAH 7,000,000. In April 1999 he claimed UAH 15,000,000 in compensation for moral damage from the GPO. These claims were joined and examined together. On 15 December 1999 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 7,635 in compensation for material and moral damage caused by the unlawful criminal action against the applicant and his unlawful detention. On 3 February 2000 the Khmelnitskiy Regional Court upheld this decision and it became final. On an unidentified date the applicant requested the Deputy Chairman of the Khmelnitskiy Regional Court to lodge a supervisory review request (protest) against these decisions. His request was satisfied, the judgment of 15 December 1999 was quashed and the case was remitted for a fresh consideration. On 11 September 2000 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 10,180 (approximately EUR 2,000) in compensation for moral damage for the unlawful criminal action against the applicant, for his unlawful detention and for being on a written undertaking not to abscond. This compensation had to be paid from the funds allocated for maintenance of the GPO. On 19 October 2000 the Khmelnitskiy Regional Court upheld this decision and it became final.

On 20 February 2001 the GPO suspended the enforcement of the judgment of 11 September 2000. On 15 May 2001 the Deputy Prosecutor General lodged a protest with the Supreme Court of Ukraine asking to quash the decision of 11 September 2000 in the part concerning the source of the payment on the ground that the awarded amount should not be paid from the funds allocated for the maintenance of the GPO.

On 3 October 2001 the Constitutional Court of Ukraine found unconstitutional the provisions of Article 32 of the Law on State Budget for the Year of 2000 according to which the compensation for damage inflicted by unlawful actions of the prosecutors had to be paid from the funds allocated for the maintenance of the GPO.

On 2 July 2002 the Pecherskiy District Bailiffs’ Service opened the enforcement proceedings in the applicant’s case. On 22 July 2002 the Bailiffs’ Service requested the National Bank of Ukraine to transfer the amount awarded to the applicant to the deposit account of the Bailiffs’ Service. On 6 December 2002 the applicant received the amount awarded and the enforcement proceedings were closed.

On 8 May 2003 the Supreme Court of Ukraine satisfied the protest and decided that the compensation in the applicant’s case had to be paid directly from the State Budget.

In June 1999 the applicant instituted proceedings in the Khmelnitskiy Town Court against the Khmelnitskiy State Centre for Standardisation, Metrology and Certification, which had been his employer at that time, for his allegedly unlawful dismissal. On 11 October 1999 the court found against the applicant. On 9 December 1999 the Khmelnitskiy Regional Court upheld this decision.

The applicant instituted two sets of proceedings in the Khmelnitskiy City Court against the GPO claiming UAH 61,161.06 and 5,862,364.79 in compensation for material damage. The applicant stated that according to the labour contracts of 12 November 1993 and 14 April 1994 his employer, the private company “Naddnistryanka”, had to pay him the above mentioned amounts of remuneration for the work performed. The applicant alleged that because of his detention and the investigation in the criminal case against him he had not been able to receive this money as the company went bankrupt in 1998. On 19 March and 3 April 2002 the court found against the applicant on the ground that the GPO was not an appropriate defendant to this claim and that the applicant should institute proceedings against his ex-employer. On 18 June and 2 July 2002 the Khmelnitskiy Appellate Court upheld these decisions. On 19 December 2002 and 29 September 2003 the Supreme Court of Ukraine rejected the applicant’s appeals in cassation.

In 1998-2000 a number of articles about the applicant were published in different newspapers.

In 2001-2004 the applicant complained to police and to other bodies that unknown people, who were allegedly policemen and the Security Service agents, threatened to destroy him in particular because he had raised complaints about the Security Service and the GPO before the European Court of Human Rights. By letter of 17 April 2001 the police informed the applicant that checks were carried out following his complaints. It was revealed that in February-March 2001 the former investigation officer, Mr M., who had investigated the applicant’s case, threatened the applicant. Mr M. was wanted for committing several crimes. By another letter of 22 March 2003 the police informed the applicant that an unknown person, who called him and threatened to eliminate him, was identified and warned about possible responsibility for such actions. By letters of 7 April and 30 December 2004 the police informed the applicant about the refusal to institute criminal proceedings following his complaints for the absence of the corpus delicti.

The applicant requested the investigation officer to allow him to represent Mr K. in a criminal case against the latter. By a decision of 19 November 2003 the investigation officer rejected the applicant’s request on the ground that in spite of having a law degree the applicant did not possess an advocate’s certificate. On 2 July 2004 the Khmelnitskiy Miskrayonnyi Court upheld this decision.

The relevant provisions read as follows:

“Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damages inflicted by unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.”

“... In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.”

“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”

At the material time, Chapter 42 of the Civil Code of Procedure allowed a final and binding judgment to be reviewed under the supervisory review procedure. The supervisory review procedure was repealed in June 2001.

Paragraph 6 of Article 34 provides that the enforcement proceedings may be suspended upon decision of the State official entitled to such actions by law.

At the material time, part 2 of Article 41 provided that the prosecutors who brought an appeal for supervisory review in the civil cases were entitled also to suspend the enforcement proceedings in such cases.

In June 2001 this Article was repealed.

The relevant parts of the decision of 3 October 2001 read as follows:

“ 5... Therefore, Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... de facto introduces civil and not public responsibility of ..., the prosecutor’s offices, ... for the material and moral damage caused to the citizens by unlawful actions of these bodies. Concurrently, the Constitution of Ukraine guaranties the right of the citizens for the compensation by the State and not from the funds allocated for the maintenance of these bodies (Article 56, 62).

the Constitutional Court has decided:

To consider as contrary to the Constitution of Ukraine (unconstitutional) provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... according to which the compensation for damage inflicted to the citizens by unlawful actions of ..., the prosecutor’s offices, ... is to be provided from the funds allocated for the maintenance of the courts, the General Prosecutor’s Office, the Security Service of Ukraine, and the Ministry of Interior.

Provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... are considered unconstitutional, and void from the day this decision is made by the Constitutional Court of Ukraine.”