Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant, Mr W., is a Dutch national who was born in 1991 and lives in Heerlen. He was represented before the Court by Mr C. Ingelse, a lawyer practising in Maastricht.

, may be summarised as follows.

On 15 February 2007 the Juvenile Judge (kinderrechter) for criminal cases of the Maastricht Regional Court (rechtbank) found the applicant guilty of causing bodily harm (mishandeling). The applicant was sentenced to a suspended term of juvenile detention (voorwaardelijke jeugddetentie), a community service order (werkstraf) of 30 hours and a training order (leerstraf) of 20 hours.

In view of the applicant’s conviction, and pursuant to article 2 paragraph 1 of the DNA Testing (Convicted Persons) Act (Wet DNA-onderzoek bij veroordeelden; “the Act”), the public prosecutor, on 7 June 2007, ordered that cellular material be taken from the applicant in order for his DNA profile to be determined. A mouth swab was taken from the applicant on 18 July 2007.

On 31 July 2007 the applicant, pursuant to article 7 of the Act, lodged an objection (bezwaarschrift) against the decision to have his DNA profile determined and processed, i.e. entered into a national DNA database. He submitted that, in accordance with Article 8 of the Convention and Article 40 of the Convention on the Rights of the Child of 20 November 1989, the personal interests of a minor should be balanced against the general interests of society when it was being considered whether to apply the Act to that minor, and within that balancing exercise the interests of the minor should be the primary consideration pursuant to Article 3 of the Convention on the Rights of the Child. The applicant submitted that regard should be had to the age of the convicted person at the time of the commission of the crime, the seriousness of the offence, the circumstances under which the offence had been committed, the risk of the convicted person reoffending and other personal circumstances of the convicted person.

The applicant further argued that the public prosecutor had failed to strike a proper balance of the interests involved. In particular, the public prosecutor had failed to take into account that the applicant had only been 15 years old when he committed the offence, that the offence had consisted of the administration of one blow with his fist, that the applicant was performing well at school and that he showed no risk at all of reoffending. The applicant also claimed that the storage of his DNA profile would not be beneficial for the possible detection, prevention or conviction of future crimes committed by him and that the exception contained in article 2 paragraph 1 sub b of the Act (see below) should therefore apply.

On 2 November 2007 the Maastricht Regional Court, having heard the public prosecutor and counsel for the applicant in camera, dismissed the applicant’s objection. It considered that, if all requirements stipulated in the Act had been met, the public prosecutor was obliged to collect a DNA sample from the applicant regardless of the fact that he was a minor. As regards the applicant’s claim of a violation of Article 8 of the Convention, the Regional Court referred to the parliamentary discussions (parlementaire behandeling) on the adoption of the Act, which had concluded that the Act did not breach fundamental rights enshrined in the Constitution and international treaties. The Regional Court adopted these conclusions and the Article 8 argument was accordingly dismissed.

The Regional Court further noted that the Convention on the Rights of the Child had not featured in the parliamentary discussions. Being of the view that the determination and processing of the DNA profile of a minor could adversely affect that minor’s interests, the Regional Court considered that it ought to interpret the provisions of the Act in the light of the text and aim of the Convention on the Rights of the Child. With reference to Article 3 of that Convention, it found that where the determination and processing of a minor’s DNA profile were concerned, the interests of the minor and the general interests of the State in the prevention and detection of crime should be weighed against each other. The Regional Court went on to observe that it appeared from the file that the applicant had severely injured his victim, that he had already performed 20 hours of community service to avoid criminal prosecution relating to an earlier charge of causing bodily harm, and that at the hearing the public prosecutor had disclosed that the applicant had in the meantime been apprehended on suspicion of attempted manslaughter. The Regional Court held that in these circumstances the interests of the State outweighed those of the applicant. It further considered that the determination and processing of the applicant’s DNA profile would not result in any adverse effects for the applicant relating to his young age since the DNA database was not public and stringent criteria on access to it were in place.

No appeal lay against the decision of the Regional Court.

The statutory maximum prison sentence for the offence of assault causing bodily harm is two years (article 300 paragraph 1 of the Criminal Code, Wetboek van Strafrecht). In the event that grievous bodily harm is caused, the statutory maximum prison sentence is four years (article 300 paragraph 2 of the Criminal Code).

The DNA Testing (Convicted Persons) Act entered into force on 1 February 2005.

Article 2 paragraph 1 of the Act requires the public prosecutor at the Regional Court that has given judgment at first instance to order that a sample of cellular material be taken from, inter alia, a person who has been convicted of one of the offences listed in article 67 paragraph 1 sub b of the Code of Criminal Procedure (Wetboek van Strafvordering). Assault causing bodily harm is one of those offences.

According to the explanatory memorandum to the Act (Memorie van Toelichting; House of Representatives, no. 28,685, 2002-03 session, no. 3), the seriousness of the offence(s) involved justifies determining and processing a DNA profile of the convicted person in order to contribute to the detection, prosecution and trial of criminal offences committed by him or her and, if possible, to prevent him or her from again committing criminal offences.

Paragraph 1 sub b of article 2 of the Act sets out two exceptions. No order for sample collection will be made if, in view of the nature of the offence or the special circumstances under which it was committed, it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention, detection, prosecution and trial of criminal offences committed by the person in question. It appears from the explanatory memorandum to this provision that the first exception of paragraph 1 sub b, relating to the nature of the offence, may apply when a person has been convicted of a crime for the solution of which DNA investigations can play no meaningful role – perjury or forgery, for instance. The second exception, relating to the special circumstances under which the offence was committed, may apply to a convicted person who is most unlikely previously to have committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in the future, for example due to serious physical injury or in the case of a woman who has never had any dealings with the law and who, after having been ill-treated by her husband for years, finally inflicts grievous bodily harm on him or kills him.

Article 2 paragraph 5 of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention, detection, prosecution and trial of criminal offences. It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by Order in Council (algemene maatregel van bestuur), after the Dutch Data Protection Agency (College Bescherming Persoonsgegevens) has been heard. The rules in question have been set out in the DNA (Criminal Cases) Tests Decree (Besluit DNA-onderzoek in strafzaken). It regulates how and by whom samples are to be taken; how they are to be kept, sealed and identified; how and by whom the DNA profile is to be drawn up; and which authorities are allowed to make use of the data stored in the DNA database. The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material. This depends on the offence of which the individual concerned has been convicted. The data of persons convicted of an offence carrying a statutory maximum sentence of six years or more is retained for thirty years. For less serious offences carrying sentences of up to six years, cellular material and DNA profiles may be retained for a maximum period of twenty years.

The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with the Regional Court within 14 days after the sample has been taken or after he or she has been served with the notification, required by article 6 paragraph 3 of the Act, that sufficient cellular material has been collected for a DNA profile to be determined and processed (article 7 paragraph 1).

The documents relating to the enactment of the Act contain no references to the Convention on the Rights of the Child. However, in a parliamentary discussion which took place on 18 March 2004 the Minister of Justice said that he saw no reason to exempt juveniles from the application of the Act or to establish a different regulation for them, since the chance of a convicted person reoffending was no less in the case of a minor than in that of an adult (Handelingen Tweede Kamer – Records of the House of Representatives – 18 March 2004, p. 60-3933-3934).

The compatibility of the Act with the Convention on the Rights of the Child was discussed in the House of Representatives when, in 2005, a number of amendments – not relevant to the present case – to the Act were proposed. On that occasion the Minister of Justice replied to written questions of Members of Parliament that the Convention on the Rights of the Child intended for juvenile criminal law to provide an educational perspective in which the reaction to the commission of criminal offences by juveniles ought to be based on rehabilitation, the offering of a second chance and correction of, or compensation for, a failed upbringing. According to the Minister, the taking of cellular material for the purpose of DNA investigation was not contrary to those principles. On the contrary, he considered that the processing of their DNA profile in the national database could contribute to their social rehabilitation. He therefore saw no need to amend the Act in this context (Kamerstukken (Parliamentary Documents), 2005-2006, 26,271, nr. 36, p. 16).

After the entry into force of the Act, different Regional Courts reached different decisions on objections lodged by minors against the determination and processing of their DNA profiles. Whereas some Regional Courts considered that the full application of the Act to persons who had been underage when convicted sat ill with the Convention on the Rights of the Child in view of its stigmatising effect, others found that DNA testing following a conviction was not detrimental to a child’s feelings of dignity and self-worth and did not stand in the way of the child’s reintegration into society. One Regional Court subscribing to this latter view considered that application of the Act to a minor did not entail adverse consequences since information relating to the determination and processing of a DNA profile was not public and would only be used in a specific criminal case; the DNA profile was stored in the DNA database anonymously and coded; and the minor would subsequently not be confronted with his DNA profile unless it appeared – as a result of a comparison of his or her DNA profile with DNA profiles of traces found in unsolved criminal cases – that he or she had previously committed one or more offences or committed another offence in the future. It was concluded that no stigmatising affect attached to the processing of DNA profiles and cellular material of juveniles. Moreover, to the extent that the Act aimed at dissuading convicted persons from reoffending, the processing of their DNA profile in the DNA database might have a preventive effect on the behaviour of minors (Rotterdam Regional Court, 17 November 2005, Landelijk Jurisprudentienummer – National Case-law (database) number, “LJN” – AU7070).

In view of the differing decisions taken by different Regional Courts, the Procurator General at the Supreme Court (Hoge Raad) lodged an appeal in cassation with that court in the interest of the law (cassatie in het belang der wet) in two cases (not including the present one). In its judgment of 13 May 2008 (LJN BC8231), in which it had regard to the explanatory memorandum to the Act and the parliamentary discussions on the adoption of the Act, the Supreme Court considered that the basic premise of the text, goal as well as the tenor of the Act was that cellular material be taken from every convicted person within the meaning of article 2 paragraph 1 of the Act. The Act did not differentiate between underage and adult convicts and the system of the Act did not allow for any further balancing of interests. The public prosecutor was obliged to issue an order for cellular material to be taken unless one of the exceptions set out in paragraph 1 of article 2 applied. The Supreme Court concluded that the system, as intended by the legislator, of a wide opportunity for the taking of cellular material with only two exceptions that were to be narrowly interpreted, did not provide room for a generic exception for minors. Moreover, such a generic exception could also not be derived from the Convention on the Rights of the Child.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

András Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant, Mr Halil İbrahim Okkalı (“Halil”), was born in 1983 and lives in İzmir. At the material time he was 12 years old and worked as an apprentice in a garage.

On 27 November 1995, at around 5.30 p.m., the applicant was taken to the Çınarlı police station in İzmir by his employer, İ.G., who accused him of stealing 15 million Turkish liras (TRL) –approximately 275 United States dollars (USD) – he had asked him to take to the bank. On returning to the garage he claimed that he had been robbed. According to the police report signed at 6 p.m., the employer filed a complaint against Halil.

At the police station the applicant was questioned by Superintendent İ.D. and Officer M.Y.

At 6.30 p.m. the police told the applicant’s father, Mr Mehmet Okkalı (“Mehmet”), what had happened and he went straight to the police station.

At 7 p.m. Halil’s father and employer reached an agreement. İ.G. withdrew his complaint, and Mehmet signed the following statement:

“... İ.G. has recovered his money and withdrawn his complaint. I am therefore taking my son from the police station. I have no demand or complaint to make concerning my son. I do not want him to have a medical check-up; my son was well treated at the police station and not ill-treated or tortured ... he was handed over to me in good shape and in good health ...”

However, once outside the police station, Mehmet saw his son stagger, totter and vomit twice. Back at home, when Halil was undressed, his parents and the neighbours present saw numerous injuries and bruises on his body. Halil then told his father that he had been beaten by his interrogators. Mehmet took Halil to Tepecik Hospital.

Officer İ.A., from the hospital’s police desk, sent him to the casualty department. In a provisional medical report the doctor who examined Halil made the following observations:

“The subject is conscious ... He has 10 x 10 cm bruises on his arms and legs and large bruises (30 x 17 cm) on both buttocks ...”

Halil was admitted to the paediatric ward.

On 28 November 1995 Mehmet returned to the police station to complain about the ill-treatment inflicted on his son and find out who had questioned him. He was given the name of Superintendent İ.D.

On the same day Mehmet lodged a complaint against İ.D. and his subordinate officers with the public prosecutor of İzmir (“the prosecutor”). He asked for Halil to be examined by a specialist in forensic medicine.

On 30 November 1995 the prosecutor interviewed the applicant, who had been discharged from hospital the previous evening. He stated:

“... at the police station I was beaten by two policemen in the toilets; one was wearing glasses and the other had green eyes. One of them was a superintendent, at least that’s what they told me – I wouldn’t know the difference. I would recognise the officers who beat me ... Later on ... my father and my uncle sorted things out with my boss and came to fetch me from the police station. On the way home I was sick. Then, when we got home and they undressed me, they saw the truncheon marks and took me to Tepecik Hospital ...”

As his hand had been injured, Halil had to ‘sign’ the record of his interview with his fingerprint.

That same day, at the prosecutor’s request, Halil was examined by a doctor from the Forensic Medicine Institute. In his preliminary report the doctor wrote:

“Halil İbrahim Okkalı has been examined. At this time his ... right forearm is immobilised in a plaster cast. He has bruising on the outside of his left arm which is a light violet colour in the middle and pale green round the edges, a pale green bruise on the left elbow, large bruises on both buttocks which are violet in the middle and pale green round the edges, and a pale green bruise on the lower back of the left thigh. It is noted that the subject was admitted to the paediatric ward at Tepecik Hospital, where he received emergency treatment ... for a fractured elbow. The final report will be drawn up on receipt of the hospital diagnosis and treatment report, the X-rays and the radiologist’s report ...”

On 1 December 1995 the applicant was re-examined by another doctor from the Forensic Medicine Institute, who reviewed the findings in the previous reports and stated:

“Having noted the existence of yellowish bruises measuring 20 x 12 cm on the left buttock, 35 x 25 cm on the right buttock, 12 x 6 cm on the lower back of the left thigh and 8 x 7 cm on the left arm, and [also] a muscle tissue trauma on the left forearm (which has been bandaged with a splint), we conclude that as a result of these injuries, which are not life-threatening, the subject should take ten days off work ...”

On 6 December 1995 the prosecutor questioned Superintendent İ.D. Denying the accusations, the superintendent said:

“... I did not beat the complainant. Besides, hardly an hour went by between the time when his employer brought him in and the time when he was released ... I did not inflict any torture on the complainant. [Yes,] I always wear glasses and it was me who talked to the boy ...”

Chief Superintendent A.K. was subsequently appointed reporting officer to assist the prosecutor in investigating the case. On 11 December 1995 İ.D. was brought before Halil, who recognised him. The reporting officer then interviewed Halil, who repeated what he had already said and added that İ.D. and M.Y. had hit him on the hands, “backside” and legs; when he collapsed under the blows, they apparently took him to a cell and threatened to “come back” unless he told them where he had hidden the money.

The reporting officer then questioned İ.D., who gave the following explanation:

“... at 7 p.m. the boy was handed over to his father. According to [the complainant], the boy felt unwell at 9 p.m. and was taken to hospital, where a report was drawn up. This event was broadcast on the television channel Kanal 6. Following that broadcast, I was suspended as of 8 December 1995. Contrary to what the boy and his father say, neither Officer M.Y. nor myself hit [the applicant] with truncheons on the hands, backside or legs. ... He arrived at the police station at 6 p.m. and I stayed with him until he left at 7 p.m. When the boy was brought to the police station his face was dirty ...; Officer M.Y. only took him to the toilets so he could wash his face ... The allegations are false ... we are wrongfully accused ...”

On the same day, 11 December 1995, the reporting officer also interviewed Halil’s employer, İ.G., and three officers from Çınarlı police station. İ.G. testified in favour of the accused, stating that on the day of the incident, from 6 to 7 p.m., he had sat with İ.D. and neither İ.D. nor M.Y. had touched Halil during that time. Two of the other police officers questioned said that there had been nothing wrong with the boy when he was handed over to his father, and the third said that he had seen no one ill-treat the boy.

On 28 December 1995 the prosecutor showed Halil photographs of the police officers on duty at Çınarlı police station. He identified İ.D. and M.Y.

On 4 January 1996 the prosecutor interviewed M.Y., who simply denied the accusations against him. The next day the reporting officer brought M.Y. before Halil, who recognised him. The reporting officer then questioned M.Y., who stated:

“... I was with Superintendent İ.D. at the time; the boy was contradicting himself, he had dust and mud on his face; his [employer] was with him. At the superintendent’s request I took the boy to the toilets to wash his face, then took him back to the main office. Around 7 o’clock we telephoned his father, who came to fetch him. ... Nobody hit the boy; if you ask me, his father ... or someone else angry about losing the 15 million liras probably gave him a good hiding ...”

On 8 January 1996 the reporting officer forwarded copies of the reports drawn up in the course of his investigations to the prosecutor; they were included in the prosecution’s case file no. 1995/50365.

On 30 January 1996, on receipt of the medical file that had been requested from Tepecik Hospital, the preliminary medical report of 30 November 1995 was finalised. The final report confirmed all the earlier medical findings. It also mentioned other visible marks on Halil’s body: bruising on the upper and lower belly, a 4 x 6 cm bruise on the side of the left tibia, a bruise behind the left knee, wide bruises on the knees and the right tibia, and bruising on the left wrist, the right elbow, the back of the right hand, and in the groin area. The report indicated that Halil would probably take twenty-five days to recover.

On 5 February 1996 the prosecutor indicted Superintendent İ.D. and Officer M.Y. before the second section of the İzmir Assize Court (“the Assize Court”) for violation of Article 243 of the Criminal Code (the obtaining of a confession by a public official by means of torture).

Proceedings before the Assize Court commenced on 12 February 1996. All the parties attended the hearing on 20 March 1996. Their statements may be summarised as follows.

Superintendent İ.D.:

“... I never left my office at any time; I did not strike the victim at all or order a police officer to hit or maltreat him to make him tell the truth ...; I only asked Officer M.Y. to take him to the washbasin and help him wash his face ... My mistake was not to have had the boy examined by a doctor before handing him over to his father; if I had done that, there would be no case against me ...; the complainant [Halil] said that the money had been taken from him by force, so he might have sustained the injuries at that time ... [Halil] was handed over to his father at 7 p.m., but the medical report was obtained at 9 p.m.; I even thought that the parents might be those [really] responsible for [Halil’s] condition, as, if ... he had shown any signs of the injuries described in the report, we would never have let him leave the police station [in such a state] ...”

Officer M.Y.:

“I maintain what I said before [to the reporting officer and the prosecutor] ...; I do not know why the complainant and the victim have made these accusations against us.”

Mehmet, the complainant:

“... When I arrived at the police station they had already questioned İ.G. ... and my son. ... Then they brought my son ... who said to İ.G., ‘There you are, did you get what you wanted?’; at the time I didn’t realise what he meant ...; it didn’t register until I got him home and saw the injuries ...; then they took my son to a cell; when I went to the toilet I saw him lying down in the cell and told him to sit up properly, but he said he couldn’t ... My son spent three days in intensive care at Tepecik Hospital ...; they told me they had given him nine bottles of serum ...”

Halil, the victim:

“... at the police station that man (pointing at Superintendent İ.D.) said, ‘Think carefully, you are going to tell me where the money is’, then he ... took me into the toilets and hit me on the hands with a truncheon. At one point I tripped and fell and the dustbin above me fell on my head. While I was down [İ.D. started hitting me]; he put his boot over my mouth to stop me screaming; then he went away saying, ‘Think carefully; I’ll be back’; but he didn’t come back ... Then my father and uncle arrived; ... [my father] saw me in the cell and told me to sit up straight, but I couldn’t, because I was sore all over ... The superintendent beat me to find out where the money was ...; M.Y. held me so I couldn’t move, but he didn’t hit me. ... Neither my employer nor my father or my family beat me for losing the money ...”

The applicant’s lawyer applied, under Article 365 of the Code of Criminal Procedure, to join the criminal proceedings as a civil party and reserved his rights to compensation. He also filed a list of prosecution witnesses he wished to call. These included the neighbours who had been present when Halil returned from the police station and taken him to the hospital with his family. The court accepted these requests.

The trial court also heard evidence from İ.G., who confirmed Superintendent İ.D.’s version of the facts. In addition to what he had told the investigating authorities, the superintendent said that on the day of the incident his colleagues at the police station had called him at around 11 p.m. to tell him that Halil had been admitted to hospital. He had gone to the hospital with another superintendent and other police officers, where he had been insulted by Halil’s friends and family, who allegedly even tried to attack him. He said he had not seen the applicant leave the police station with his father and had no idea what had possessed them to accuse the police when the matter had been settled between himself and Mehmet.

Mehmet gave evidence as follows:

“Just before or after the new year someone by the name of Baki, the minister’s bodyguard ..., called me to fix an appointment; he turned up at the appointed place, together with Superintendent İ.D. ...; he explained that İ.D.’s wife was pregnant and that if we ‘said the right things’ in court, his sentence might not be executed for a year, until after the baby had been born. I refused, saying that if he [İ.D.] was so concerned about his unborn baby, how could I be expected not to worry about my own son?”

At the hearing on 27 May 1996, the trial court heard three police officers from Çınarlı police station and seven prosecution witnesses. The police officers said that when Mehmet had gone to the police station to pick Halil up he had been asked if he wanted to have the boy examined by a doctor, but he had not deemed it necessary, as his written statement confirmed.

Mehmet replied that there had been no such offer and that he had signed the statement without thinking, as he had been worried about his son’s well-being.

Most of the prosecution witnesses confirmed the complainant’s version of events and the applicant’s uncle added:

“... I went to the police station with [Mehmet] ... Halil showed no visible traces of violence but he looked as if he had been [shaken up]; no one suggested that we might have him examined by a doctor before we left the police station ... We left the station at around 8 p.m. ...; as my nephew was getting into the car, he started to vomit; I went back [to the police station] and spoke to the policeman at the door; he said we could take [Halil] to a doctor ... Even at the police station I had noticed small marks on [Halil’s] hands, but I thought nothing of it; I knew ‘mishaps’ sometimes occurred at police stations, but I certainly didn’t expect to see what we [found] when we got home ... The same evening Chief Superintendent O.K. called my brother-in-law to the police station and I went with him. Chief Superintendent O.K. called in İ.D. and said to him, ‘Aren’t you ashamed of yourself? Brutalising a little boy?’; İ.D. said, ‘I have been in the police for ... years and I did my duty; what of it if I did hit him once or twice?’; then the chief superintendent said, ‘Let’s go to the hospital and see this little boy you say you hit once or twice’. So we went to the hospital together and they saw the victim; he was bleeding “top and bottom”, he had a tube in him ...”

The defendants İ.D. and M.Y. denied all charges. At the hearing on 1 July 1996, their superior officer, O.K., told the court:

“... I heard about the incident at around 9 p.m., when the boy’s family contacted me ...; I brought the parties face to face ..., but when the accused started to deny the accusations in front of [the family] ... I had to send them out of my office before something unpleasant happened; ... to investigate the matter, and at the family’s request, I went to the hospital, but without the doctors’ authorisation it was not possible for me to see the child, as he was in intensive care ... Back at the police station I questioned all the police officers on duty, who all maintained that they had seen nothing and knew nothing ... I went to see the victim once at his home. ... [Apart from that], the defendant İ.D. never went with me to the hospital. When I brought the parties together face to face, the only thing İ.D. said was that he had done his duty ...”

After the next hearing, on 30 October 1996, the Assize Court pronounced judgment. It began by announcing its conviction that

“... having regard to all the evidence, including the reports in the case file, the statements made by the victim and the reports concerning the complaint, the accused did beat the victim in the course of their duty in the manner described in the [medical] report, to make him say where he had hidden the money ...”

However, the Assize Court decided, by a majority, to reclassify the offence as “assault and ill-treatment”, as defined in Article 245 of the Criminal Code, rather than the verdict requested by the prosecution. The court based its decision on the fact that Halil’s employer had withdrawn his complaint; he was therefore not accused of any crime and so it could not have been the defendants’ intention “to obtain a confession” within the meaning of Article 243, but rather simply “to find out what had happened to the money placed in his care”.

The Assize Court decided to apply the minimum penalty and sentenced İ.D. and M.Y. to three months’ imprisonment and a three-month suspension from duty. Taking into account the defendants’ good behaviour during the trial and considering that they had confessed, albeit reluctantly, the Assize Court reduced the sentences to two months and two weeks, in conformity with Article 59 § 2 of the Criminal Code. Then, by virtue of sections 4(1) and 6(1) of Law no. 647, it commuted the prison sentences to fines of TRL 750,000 (about USD 8), then ordered a stay of execution as the defendants had no criminal record and the judges were convinced that they would not reoffend.

The applicant’s counsel appealed against the judgment on various points of law, including violation of Article 3 of the Convention.

By a decision of 5 November 1997, the Court of Cassation admitted the appeal and set aside the impugned judgment for misclassification of the offence, which the higher court considered amounted to extortion of a confession as defined in Article 243 of the Criminal Code. The case was accordingly referred back to the Assize Court.

In his written pleadings dated 25 February 1998, İ.D. submitted:

“I maintain my previous submissions to the Assize Court and declare that I did not commit the offence of which I am accused; I did not subject the complainant to any violence or ill-treatment. I accordingly ask the Court to acquit me. In the alternative, and without admitting to any guilt, I beg the Court to uphold its initial classification if it decides to convict me, as the facts that constitute the offence defined in Article 243 of the Criminal Code have not been established in the present case ...”

On 26 February 1998, after re-examining the case, the Assize Court complied with the decision of the higher court and convicted İ.D. and M.Y. of contravening Article 243 of the Criminal Code and, once again, sentenced them to the minimum penalties: one year’s imprisonment, enforceable immediately, and three months’ suspension from duty. These sentences were subsequently reduced to ten months’ imprisonment and two and a half months’ suspension from duty, under Article 59 § 2 of the Criminal Code. Then, for the reasons stated in the judgment of 30 October 1996, the sentences were suspended under section 6 of Law no. 647.

The applicant’s lawyer again appealed to the Court of Cassation to set aside this judgment. Deploring that the defendants had been given the benefit of Article 59 § 2 of the Criminal Code and section 6 of Law no. 647, he submitted, in particular:

“As to the application of the minimum penalty: ... on 27 November 1995, under suspicion of theft and misappropriation, the victim ... was taken to the police station, where he was beaten with a truncheon and kicked ... by police officers in an attempt to extort a confession ... The victim was 12 years old when he was subjected to this torture. When a child that age is tortured he suffers not only physical pain but also irreversible psychological damage that can affect his whole future ... Defendant İ.D., who was a superintendent at the material time and is [now] a chief superintendent, was a public official acting as the officer in charge. It was his duty not only to abide by the law but also to make sure the men under his orders did so ... The sentences handed down ... against the defendants are manifestly contrary to the public interest which underlies Article 243 of the Criminal Code. They are likely to undermine society’s confidence in the forces of law and order ...

As to the application of Article 59 § 2 of the Criminal Code: ... as mentioned above, the offence in issue here is generally considered to be one of the most serious. The [Court’s] view that the defendants felt remorse is unsubstantiated. Throughout the trial they constantly denied the charges; they even went as far as to suggest that the victim might have been beaten by [his parents]. It is inadmissible that someone who denies the charges should be considered to regret their misconduct ...

As to the suspension of the sentences: ... the enclosed newspaper article reveals that defendant İ.D. had previously been tried for assault on two people and abuse of office ... Even though he was acquitted for lack of evidence, it shows the defendant’s propensity to commit such offences ...”

In a judgment of 24 March 1999, the Court of Cassation upheld the judgment of 26 February 1998, without replying to the above points of law. As the applicant’s counsel was not notified of this judgment, he did not become aware of it until 6 September 1999.

On 10 September 1999 the applicant’s lawyer claimed TRL 3 billion from the Ministry of the Interior in respect of non-pecuniary damage. When the Ministry refused to entertain the claim, the family lodged a claim for damages against the Ministry with the İzmir Administrative Court (“the court”) on 22 November 1999.

In a judgment of 11 April 2000, the court dismissed the claim as being time-barred under section 13 of Law no. 2577 (see paragraph 51 below). As the starting-point of the one-year limitation period provided for in that law, the court took the date on which the applicant had obtained the medical certificate, that is, 30 January 1996, explaining that the subsequent criminal conviction of the police officers responsible had no bearing on the calculation of the time-limit.

The applicant’s lawyer appealed to the Supreme Administrative Court. In a judgment of 12 December 2001, the Supreme Administrative Court dismissed the appeal and upheld the judgment of 11 April 2000.

The lawyer then applied for rectification of the judgment, arguing, inter alia, that the way in which the limitation rule for actions against administrative acts had been interpreted and applied in this case was at variance both with administrative law and with international legislation on the prevention of ill-treatment, in so far as the treatment to which the applicant had been subjected amounted not to any ordinary administrative act but to torture. He submitted that the period during which his client was entitled to sue for damages had not started until the day he had been informed of the final conviction decision, namely, 6 September 1999, the date on which the criminal nature of the impugned act had been finally established.

In a final judgment of 7 March 2005, the Supreme Administrative Court confirmed the judgment of 12 December 2001 by a majority of three judges to two.

The relevant provisions of the Criminal Code are as follows.

“Any public servant ... who inflicts torture or cruel, inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to five years’ imprisonment and temporarily or permanently barred from public service.”

“Prison sentences:

Life imprisonment shall mean imprisonment until death. Unless explicitly provided otherwise [herein], other immediately enforceable prison sentences shall range from one to twenty-four years.”

“Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes a person or does them bodily harm shall be sentenced to between three months’ and three years’ imprisonment and temporarily barred from public service. ...”

“The judge has full discretion to determine the principal sentence, which can vary between a minimum and a maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ..., the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even if the minimum sentence is imposed, the reasons for that choice must be stated in the judgment.”

“If the court considers that there are mitigating circumstances other than those prescribed by law ..., the death penalty shall be commuted to life imprisonment, and life imprisonment to thirty years.

Other penalties shall be reduced by a maximum of one-sixth.”

Sections 19 and 41 of Law no. 2253, establishing youth courts and regulating their jurisdiction and the procedure before them, cover the preliminary investigation of juvenile delinquency.

“The term minor, for the purposes of this law, shall mean persons under 15 years of age at the time when the offence was committed.”

“The preliminary investigation of offences committed by minors shall be carried out by the public prosecutor in person or by a deputy appointed by him.”

Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, minors should have the assistance of an officially assigned counsel without having to ask for it.

Sections 4(1) and 6(1) of Law no. 647 on the execution of sentences read as follows:

“Short custodial sentences which do not have to be served immediately may, depending on the personality and situation of the defendant and the circumstances in which the offence was committed, be commuted by the court:

(1) to a heavy fine ... of 5,000 to 10,000 Turkish liras per day;”

“The court may decide to suspend the execution of a fine and/or a prison sentence of up to one year ... if it is convinced, taking into account the offender’s criminal record and potential to commit crime, that there is little risk of any further offence being committed, and provided that the offender has never been sentenced to anything other than a fine. The reasons for suspending the sentence must be stated in the decision.”

Regulation 8, paragraph 39, of the disciplinary regulations of the security forces stipulates:

“The following acts, actions and conduct shall be punished by expulsion from the public service:

Inflicting torture on any person ... on police premises;”

Section 13 of Law no. 2577 states:

“Before initiating administrative proceedings, people whose rights have been violated as a result of administrative acts shall submit a claim for damages to the administrative authority concerned within one year of the date on which they received notification of the impugned act, in writing or otherwise, and, in any event, within five years of the impugned act. An administrative action may be brought if that claim is rejected, in whole or in part, by the administration. The time-limit for such administrative action shall be calculated from the day after notification of the claim’s rejection was received or, if the claimant has received no reply, from the expiry of the sixty-day period the administration has in which to reply.”

Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).

In Turkish criminal-law practice a confession is said to be “tevilli” (“qualified”, a confession of a complex type) when the person confessing to the offence simultaneously invokes circumstances that may be considered to exonerate them or mitigate their guilt: examples are self-defence in a murder case, or something that cancels liability in a criminal case, such as having paid the price for the object one is accused of stealing. Such confessions are considered to be divisible, so the courts may distinguish between the part of the confession acknowledging the offence and the part explaining why it was committed, and choose to admit only the confession, not the reasons given.

At the Court’s request, the Government supplied the following information concerning the practical interpretation in criminal law of the legal definition of the tevilli confession, which they translate as “tacit” confession:

“... The court must decide in what circumstances the offence may be attributed to a person who clearly denies all the charges. In criminal law the trial court may base its judgment on the incriminating evidence and convict a defendant who denies everything if there is a body of consistent evidence pointing ‘beyond reasonable doubt’ to his guilt. When the court evaluates the evidence, if the defendant cannot prove that he was not at the place where the offence was committed on the material date and at the material time and, according to the evidence in the case file, the offence could not have been committed by anyone else, the court may [find] the defendant guilty.”

As to judicial practice in respect of the application of minimum sentences, the Government were unable to present examples, as requested by the Court, of judgments explaining why the criminal-court judge had imposed a sentence heavier than the minimum prescribed by law. They simply explained that the courts had a certain discretion when it came to passing sentence between the upper and lower limits, the aim being to prevent repeat offences.


András Sajó;Guido Raimondi;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicants in application no. 28883/05, Mrs Zeynep Çiçek, Mr Hayri Çiçek, Mr İbrahim Çiçek, Mr Cemal Çiçek, Mr Veysel Çiçek, Mr Rıza Çiçek, Mrs Nurcan Güngör, Mrs Hanım Yıldırım, Mrs Gülcan Çiçek and Mr Nurettin Çiçek, are Turkish nationals who were born in 1948, 1989, 1966, 1963, 1972, 1976, 1971, 1965, 1974 and 1981 respectively and live in the town of Hozat, near Tunceli. They were represented before the Court by Mr Hüseyin Aygün, a lawyer practising in Tunceli.

The applicants in application no. 32220/05, Mrs Garip Gülmez, Ms Fatma Karaduman, Ms Serayi Çetin, Mr Süleyman Gülmez, Ms Meneş Gülmez, Ms Yeter Kalkan, Ms Zeynep Gündoğdu, Ms Songül Gülmez and Ms Hatice Gülmez, are Turkish nationals who were born in 1931, 1955, 1957, 1961, 1966, 1967, 1969, 1973 and 1976 respectively and live in the town of Hozat, near Tunceli. They were represented before the Court by Mr Hüseyin Aygün, a lawyer practising in Tunceli.

The applicants in application no. 32096/09, Ms Rukiye Aksoy and Ms Ayşe Cingöz, are Turkish nationals who were born in 1972 and 1948 respectively and live in Diyarbakır. They were represented before the Court by Mrs Reyhan Yalçındağ Baydemir, Mr Muharrem Erbey and Mr Serdar Çelebi, lawyers practising in Diyarbakır.

The applicant in application no. 14018/10, Mrs Duri Yaman, is a Turkish national who was born in 1948 and lives in Şırnak. She was represented before the Court by Mr Mehmet Recai Bağcı and Ms Hülya Sarsam, lawyers practising in Ankara.

The Turkish Government (“the Government”) were represented by their Agent.

The facts of the cases, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

The first applicant’s husband and the remaining applicants’ father, Hasan Çiçek, lived in the village of Boydaş, which is located within the administrative jurisdiction of Tunceli, in south-east Turkey.

According to the applicants, on 5 October 1994 a number of soldiers took Hasan Çiçek from his home in order to use him as a guide during a military operation conducted in the area. The applicants’ neighbours witnessed the incident. Nothing has been heard from Hasan Çiçek since that date.

On 18 November 1994 an article was published in a daily newspaper stating that Hasan Çiçek’s corpse had been found. The applicants were not informed of this event by the authorities.

On an unspecified date the first applicant filed a petition with the Hozat public prosecutor’s office and requested that an investigation be initiated into her husband’s disappearance. On 1 August 1996 the Hozat public prosecutor issued a decision based on a lack of jurisdiction (görevsizlik kararı) and passed the investigation to the Elazığ military prosecutor’s office.

On 30 November 2004 the first applicant filed a petition with the Hozat public prosecutor’s office. In her petition, she stated that forty days after the disappearance of her husband, she had found a body in the vicinity of their village. She had thought that it was her husband, as she had recognised the buttons of the shirt on the body. Noting that there had been no investigation into Hasan Çiçek’s disappearance, she requested that an investigation be conducted.

On 11 January 2005 the Hozat public prosecutor heard the first applicant, who reiterated her request.

On 2 February 2005 the Hozat public prosecutor issued a decision not to prosecute in respect of the first applicant’s allegations. In his decision, the public prosecutor noted that the first applicant had filed a petition with the public prosecutor’s office in 1994, at which time she had also handed over a raincoat and empty cartridges which she had found in the vicinity of their village to the public prosecutor, and that there had been a previous decision not to prosecute issued on 1 August 1996 which had been based on a lack of jurisdiction. He further noted that the first applicant had not submitted any new evidence and that her previous allegations had already been dealt with by the public prosecutor’s office. The public prosecutor concluded that there was no reason to initiate an investigation into the first applicant’s complaints.

On 10 February 2005 Zeynep Çiçek objected to the decision of 2 February 2005. The objection was rejected by the Erzincan Assize Court on 21 November 2005.

In the meantime, on 22 February 2005 the Malatya public prosecutor issued a decision based on a lack of jurisdiction in relation to six cases of disappearance, including that of Hasan Çiçek. In his decision, the public prosecutor noted that it had been alleged that Hasan Çiçek’s body had been found. The public prosecutor referred the cases to the Hozat public prosecutor’s office.

On 14 April 2005 the Elazığ military public prosecutor’s office issued a decision based on a lack of jurisdiction in relation to the aforementioned six cases of disappearance, including that of Hasan Çiçek, holding that the military public prosecutor’s office at the General Gendarmerie Command had jurisdiction.

The first applicant’s husband and the remaining applicants’ father, Nazım Gülmez, lived in the village of Taşıtlı, which is located within the administrative jurisdiction of Tunceli, in south-east Turkey.

According to the applicants, in October 1994 Nazım Gülmez was taken from his house by a group of soldiers so that he could help them by using his familiarity with the area to act as a guide. Nine neighbours witnessed the incident. Nothing has been heard from him since that date.

The mayor of the town of Hozat and mayors of the nearby towns sent a joint letter to the office of the Prime Minister. In their letter the mayors stated that large scale military operations had been conducted in their areas in October 1994. During the operations a large number of houses had been burnt down and a number of villagers – including Mr Gülmez – had been taken away by the soldiers. The bodies of two of the villagers had subsequently been found but nothing had been heard from the remaining villagers. No response was given to this letter by the Prime Minister’s office.

In 2002 the applicant Meneş Gülmez made an official complaint to the Hozat prosecutor. However, on 13 December 2002 the prosecutor decided that military prosecutors had jurisdiction to investigate the disappearance. In January 2003 the applicants made an application to the Elazığ military prosecutor and asked for those responsible for the disappearance to be prosecuted.

As no response was received from the military prosecutor, the family submitted another petition on 12 January 2004. They also stated in their petition that the military prosecutors were not allowing them to consult the investigation file.

On 25 January 2005 the Elazığ military prosecutor’s office informed the applicants that the investigation file had been forwarded to the Malatya State Security Court’s prosecutor.

On 22 February 2005 the Malatya prosecutor decided that his office lacked jurisdiction to investigate the killings and disappearances of six people, including the disappearance of Mr Nazım Gülmez. The investigation files were forwarded to the prosecutor’s office in the town of Hozat. According to this decision, the first applicant, Garip Gülmez, had been questioned by the prosecutor and had stated that her husband had been taken away from their home by soldiers.

On 14 April 2005 the Elazığ military prosecutor decided that his office also lacked jurisdiction to investigate the disappearances and killings and sent the investigation files to the military prosecutor’s office in Ankara. It appears from this decision that the Hozat prosecutor had decided on 25 March 2005 that his office did not have jurisdiction either. It also appears from the decision that, according to the Hozat prosecutor’s decision, there was evidence showing that a number of villagers had been taken away from their villages by soldiers and that nothing had been heard from those villagers since.

According to the applicants, on 7 June 1995 the first applicant’s husband, Edip Aksoy, and the second applicant’s son, Orhan Cingöz, were bundled into an unmarked car in Diyarbakır by three plain-clothed members of the security forces and taken away to an unknown location. Two of their friends witnessed the incident.

In the course of the following days and years, the applicants and their families made a number of applications to various domestic authorities, including the local prosecutors, the State Security Court, local governors, the Ministry of Justice and the Ministry of the Interior. Most of their requests for information received no response. On some occasions they were told that the two men were not in custody. The disappearance of the two men was reported in the national media.

On 9 August 2001 the first applicant, Ms Aksoy, submitted a written petition to the Diyarbakır prosecutor. She alleged that her husband had been arrested and detained on a number of occasions prior to his disappearance on 7 June 1995. She asked the prosecutor to inform her as to whether there had been any developments in the investigation into the disappearance of the two men.

On 4 September 2001 the second applicant, Ms Cingöz, also submitted a written petition to the Diyarbakır prosecutor and asked for information about the investigation into the disappearance of her son.

On the same date the prosecutor questioned the second applicant and recorded her statement. She gave the prosecutor the names of the eyewitnesses to the incident.

On 6 July 2005 the applicants were questioned by a prosecutor in the town of Silopi in the presence of their two lawyers. The first applicant gave the prosecutor a copy of a national newspaper article published in 2004, in which it was reported that the two men had been killed by members of the security forces and then buried in a river bed next to Cudi Mountain. The newspaper article was based on information given by Mr Abdülkadir Aygan, a former agent of the JİTEM (Jandarma İstihbarat Terörle Mücadele – the anti-terror intelligence branch of the gendarmerie). A number of investigations had already been instigated into Mr Aygan’s allegations and the bodies of a number of individuals had been found in the locations described by him.

When the applicants were shown photographs of the bodies of people killed in the area, they told the prosecutor that two of the dead men looked like their disappeared relatives. They asked the prosecutor to identify the bodies and, if it was established that the bodies were indeed those of their relatives, they asked for the bodies to be returned to them.

The prosecutor ordered the exhumation of the remains of two people who had been killed in 1995 and whose bodies had been buried by the local authorities that year because no relative had claimed them. A DNA analysis conducted in 2006 showed that the two men were not the applicants’ disappeared relatives.

On 6 August 2008 the Diyarbakır prosecutor decided to close the investigation because the statute of limitations had expired. In the prosecutor’s decision, the offence was qualified as “deprivation of liberty”, for which the prescription period was ten years. The prosecutor considered that nothing had happened in the course of the ten years to stop the running of the time-limit. According to the documents submitted by the applicants, the prosecutor’s decision was only communicated to the first applicant, Ms Aksoy.

On 19 September 2008 the first applicant, with the assistance of her lawyer, lodged an objection with the Siverek Assize Court against the prosecutor’s decision. She stated that a number of newspaper articles had detailed how her husband and Mr Cingöz had been killed and where they were buried.

The objection was dismissed by the Siverek Assize Court on 25 November 2008. The Siverek Court did not respond to the first applicant’s arguments concerning the newspaper articles. The decision was communicated to the applicants’ lawyer on 3 January 2009.

In July 1995 the applicant’s 30-year-old son, Ahmet Yaman, was summoned to the Uludere District Gendarmerie Station. When he failed to return, the applicant went to the gendarmerie station to look for him. She was told that her son had been handed over to the military in Şırnak.

After receiving no news from her son for about a week, the applicant made an official complaint at the Uludere prosecutor’s office on 11 July 1995, and asked for her son to be found.

In October 1995 the Uludere prosecutor decided that he lacked jurisdiction to investigate the disappearance because, according to two eyewitnesses heard by him, the applicant’s son had disappeared in Şırnak, which was outside his jurisdiction. The prosecutor therefore forwarded the file to his opposite number in Şırnak. It also appears from the prosecutor’s decision that, in a letter sent to him on 18 July 1995, the Uludere Gendarmerie Station officials denied having summoned the applicant’s son to their station.

The applicant claimed that for a period of almost fourteen years she had visited various prosecutors’ offices on hundreds of occasions and had asked unsuccessfully for information about her son.

On 1 June 2009 the applicant, with the assistance of two legal representatives, sent a letter to the Şırnak prosecutor’s office and asked for information about the investigation into the disappearance. She claimed that the failure to find and prosecute those responsible for her son’s disappearance was in breach of Articles 2, 6 and 13 of the Convention and of applicable domestic law.

On 4 June 2009 the Şırnak prosecutor informed the applicant that the investigation into the disappearance of her son had been closed on 18 March 1996 by a decision of his office not to prosecute on account of a lack of evidence.

According to the decision of 18 March 1996, the Şırnak prosecutor’s office had been informed by the Şırnak Provincial Gendarmerie Command on 7 November 1995 that Ahmet Yaman had not been detained by them. The Şırnak prosecutor had also enquired as to the accuracy of two eyewitness statements to the effect that Ahmet Yaman had been put in a helicopter in Uludere and flown to Şırnak. In their reply of 1 December 1995 the Şırnak Gendarmerie had informed the Şırnak prosecutor that, although there were no regular helicopter flights between Uludere and Şırnak, the military did use helicopters between the two locations when the need arose. Thus, it was impossible to establish whether a helicopter flight had been made to Uludere on the day in question.

It also appears from the prosecutor’s decision that the applicant had informed the investigating authorities that the Şırnak Regiment’s Commander had visited a café in Uludere and told those present in the café, which had included civilians and village guards, that Ahmet Yaman was in Şırnak and would soon be released. When questioned by the Şırnak prosecutor, however, the village guards present during the commander’s visit had stated that the commander had not said anything about Ahmet Yaman.

Upon receiving the Şırnak prosecutor’s decision of 18 March 1996 on 4 June 2009, the applicant’s legal representatives filed an objection against it. They argued that the investigation by the Şırnak prosecutor had been inadequate. They submitted that important leads had not been followed up, not all eyewitnesses had been heard, and the prosecutor had been content to accept the written replies received from the military, rather than questioning them in person.

The objection was rejected by the Siirt Assize Court on 13 August 2009 on the grounds that the two legal representatives “had not been representing the applicant at the time of the adoption of the prosecutor’s decision of 18 March 1996 and the objection was thus filed outside the statutory timelimit”.

The Assize Court’s decision was communicated to the applicant’s lawyers on 25 August 2009.

Unbeknown to the applicant, on 30 September 2009 the Minister of Justice asked the Court of Cassation to set aside the Siirt Assize Court’s judgment because, the Minister argued, the applicant had lodged the objection within the time-limit foreseen in the applicable statute.

The Court of Cassation accepted the Ministry’s request on 13 January 2010 and quashed the Siirt Assize Court’s decision of 13 August 2009. Subsequently, the Siirt Assize Court examined the applicant’s objection against the Şırnak prosecutor’s decision and accepted it. The Assize Court ordered the prosecutor to carry out a new investigation into the disappearance of the applicant’s son.

The new investigation started by the Şırnak prosecutor is still pending.


The applicant, Ms Jozefína Beňačková, is a Slovakian national, who was born in 1912 and lives in Bánovce nad Bebravou.

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

On 28 November 1997 the applicant filed a claim for damages with the Topoľčany District Court. She claimed compensation under the State Liability Act of 1969 on the ground that the sum of 3,091 Slovakian korunas (SKK) had been unlawfully withheld from her old-age pension between 20 February 1996 and 1 July 1997. The applicant relied on a decision of 30 April 1997, delivered by the Nitra Regional Court, according to which the decision to withhold a part of the applicant’s pension with a view to recovering a sum of money due by her had been erroneous. The applicant appointed her daughter to represent her in the proceedings.

On 25 February 1998 the Ministry of Justice proposed in writing that the court take relevant evidence and decide on its basis. On 11 March 1998 the applicant submitted further arguments to the District Court.

On 9 October 1998 the Topoľčany District Court adjourned the case with a view to hearing a representative of the defendant and studying the case-file concerning the withholding of the sum in question.

On 22 December 1998 and on 16 April 1999 the president of the Topoľčany District Court dismissed the applicant’s complaints about the length of the proceedings. The applicant was informed that the case could not be proceeded with as the relevant case-file was being examined by the Trenčín Regional Court in the context of a different set of proceedings. The applicant objected that her case could be proceeded with as she had submitted all relevant information and evidence.

On 13 October 1999 the president of the Topoľčany District Court informed the applicant that the examination of the case-file concerning the enforcement in question was necessary before proceeding with the applicant’s action, and that that case file was still with the Trenčín Regional Court.

On 25 February 2000 the Bratislava II District Court heard the representative of the defendant Ministry at the request of the Topoľčany District Court. The representative of the defendant stated that the Ministry had no objection to the applicant’s claim being granted in accordance with the relevant provisions of the State Liability Act of 1969.

On 21 March 2000 the Topoľčany District Court ordered the defendant to pay SKK 1,377 to the applicant in compensation for damage which she had suffered as a result of the above erroneous enforcement. The damages granted comprised the statutory default interest in respect of the sum which had been withheld between 20 February 1996 and 1 July 1997 and the expenses incurred by the applicant in the context of the enforcement. The court noted that the sum erroneously withheld had already been returned to the applicant.

The Topoľčany District Court further granted SKK 381 to the applicant in compensation for her representative’s travelling costs and other expenses incurred in the context of the proceedings concerning her claim for damages. The District Court dismissed the applicant’s claim for compensation for the time which her representative had spent travelling to the court hearings. The decision stated, with reference to Regulation No. 240/1990, that such compensation was only payable to advocates. The judgment became final on 19 April 2000.

Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.

In accordance with the courts’ practice, the State Liability Act does not permit granting compensation for damage of non-pecuniary nature with the exception of compensation for damage caused to a person’s health which is governed by Regulation No. 32/1965.

Regulation No. 240/1990 governs the payment of advocates’ fees and expenses.

Section 20 provides that advocates are entitled to compensation for travel time outside the place of their residence in the context of representing their clients.


The applicant, Mr Hasan Babayev, is an Azerbaijani national, who was born in 1944 and lives in Baku. He was represented before the Court by Mrs L. Madatova, a lawyer practising in Baku.

The applicant's father, before his death, owned a part of a non-residential building used as a garage. At the material time, according to the applicant, the garage was used by T.B. under a lease agreement.

In 1995, the applicant's father died and the applicant formally registered his ownership rights to the part of the garage he inherited from his father. According to the applicant, the remaining parts of the property were open for inheritance by his relatives, but none of them formalized their rights.

In 2002 T.B. filed a lawsuit before the Nasimi District Court, claiming ownership rights to the garage based on a de facto sale and purchase agreement allegedly concluded in 1969 with some of the applicant's relatives, who had then been the owners of the garage.

The applicant counterclaimed, asking the court to order T.B.'s eviction from the garage. He denied T.B.'s allegations that the garage had been de facto sold in 1969, arguing that there were no proper documents verifying that such a sale had ever taken place. He claimed that the garage had remained in the ownership of his family until his father's death and that, thereafter, he had rightfully inherited his father's share of the property and properly formalized his ownership rights.

On 4 June 2002 the Nasimi District Court upheld T.B.'s claim in full and rejected the applicant's counterclaim.

The applicant appealed, alleging that the district court had wrongfully assessed the facts. On 13 August 2002 the Court of Appeal set aside the district court's judgment and ruled in the applicant's favour.

Following T.B.'s cassation appeal, on 4 December 2002 the Supreme Court held that the Court of Appeal improperly applied the relevant provisions of the domestic law to the facts of the case. The Supreme Court modified the Court of Appeal's decision and declared that the disputed property was in T.B.'s ownership. The Supreme Court's decision became final and enforceable upon its delivery.

On 27 January 2003 the applicant filed an “additional cassation” appeal with the President of the Supreme Court, asking for the reopening of the proceedings and quashing the Supreme Court's decision of 4 December 2002 by the Plenum of the Supreme Court (Azərbaycan Respublikası Ali Məhkəməsinin Plenumu).

By a letter of 23 April 2003, the President of the Supreme Court rejected the applicant's request, finding no grounds for the reopening of the proceedings.

Law On Courts and Judges of 1997

“[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialized courts.

The Supreme Court [is] a court of cassation instance ...”

“The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ...

The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation, on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or an appeal by the defendant ...”

“The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation instance decisions for the review of the Plenum of the Supreme Court ...”

Code of Civil Procedure of the Republic of Azerbaijan of 2000

“The decision [of the cassation instance court] shall enter into legal force from the moment of its delivery.”

“Submissions, appeals or protests concerning decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation.”

“A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests were affected by the judicial acts. An appeal may be filed by a party to the case who has been represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]”

“The Plenum shall consider cases exclusively on the points of law.”

Article 424 § 2 lists the grounds which merit the reconsideration of the Supreme Court's cassation instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia, the Supreme Court's decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court's ruling infringed the rights and obligations of persons who were not a party to the case.

“If appropriate grounds exist, the President [of the Supreme Court] shall transmit the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court.”

Relevant domestic practice

Any additional cassation proceedings in the Plenum of the Supreme Court can be reopened only at the discretion of the President of the Supreme Court, following a motion by the relevant party (e.g., an additional cassation appeal or Chief Prosecutor's protest). The Plenum itself does not take a decision on the reopening of the proceedings or on the admissibility of additional cassation appeals.

An additional cassation appeal is first submitted to the President of the Supreme Court. The President, in his or her sole discretion and without holding any formal judicial hearing, decides if there are any grounds to reopen the case and transmit the appeal to the Plenum. If the President decides that the proceedings should be reopened, he or she then transmits the additional cassation appeal, together with the case file, for the in-substance review of the Plenum at its next sitting. Meanwhile, if necessary, the President may issue an order suspending the execution of the final judgment pending the review of the case by the Plenum.

However, if the President deems that there are no grounds for additional cassation review, he or she simply sends a rejection letter to the applicant, briefly describing the reasons for the refusal to reopen the proceedings and transmit the appeal to the Plenum. The recent practice shows that the President of the Supreme Court routinely denies additional cassation review in the majority of domestic cases, due to the absence of the relevant grounds.


The applicant, Mr Kossi Archil Amegnigan, is a Togolese national, who was born in 1980 and lives in Klazienaveen. He is represented before the Court by Mr R. Bosma, a lawyer practising in Assen.

On 18 September 2000, the applicant applied for asylum in the Netherlands under a false identity. This asylum request was rejected by decision of 19 December 2001. The applicant's subsequent appeal was dismissed on 17 June 2003 by the Regional Court (arrondissementsrechtbank) of The Hague.

On 14 March 2001, the applicant filed a second request for asylum in the Netherlands, this time under this true identity. He stated that he was single, that he had no relatives living in the Netherlands and that his father had died. His family in Togo consisted of his maternal grandfather, his mother and one brother who was born in 1985. He had no other relatives. He claimed that he had been arrested in Togo on 5 November 2000 after a passenger in his taxi had been found to carry weapon parts, that he had been taken into detention, had been ill-treated during his detention and had managed to escape with the aid of a guard. He further claimed that had left Togo by boat on 22 February 2001 and that he had arrived in the Netherlands on 11 March 2001.

On an unspecified date, a medical examination of the applicant disclosed that he might be infected with HIV and he was referred to the Groningen Academic Hospital in May 2001 for further medical examinations. In a letter of 4 July 2001, a specialist in internal diseases of this hospital confirmed this diagnosis and stated that the applicant found himself in the A3 clinical category of the disease, i.e. the asymptomatic stage of the disease with a CD4+ count of less than 200 cells/µL. The specialist concluded that, given the low CD4+ count, antiretroviral treatment was indicated. The applicant was in fact provided with such treatment.

On 19 December 2001, the Deputy Minister of Justice (Staatsecretairs van Justitie) rejected the applicant's asylum request, finding that the applicant's asylum account lacked credibility. In so far as the applicant relied on his health problems, the Deputy Minister considered that the applicant could apply for a residence permit on medical grounds. On 14 January 2002, the applicant filed an appeal with the Regional Court of The Hague.

In a letter of 24 March 2003, a specialist in internal diseases of the Groningen Academic Hospital informed the applicant's lawyer that, if the applicant were to cease taking anti-HIV medication, his prospects would become very unfavourable within a short delay. The specialist further wrote that it was not to be expected that, in Togo, medication was obtainable that the applicant needed to suppress the HIV-infection and to improve his immune system.

On 17 June 2003, following a hearing held on 25 March 2003, the Regional Court of The Hague rejected the applicant's appeal of 14 January 2002. It accepted the finding of the Deputy Minister that no credence could be attached to the applicant's asylum account. In so far as the applicant relied on his health problems, the Regional Court decided not to take into account the information set out in the letter of 24 March 2003 as this information had only been submitted one day before the hearing held on 25 March 2003. It found that taking this information into consideration would be contrary to the principles of due process. It further held that it had not been established that there was a causal link between the applicant's illness and his departure from Togo and that it had not appeared that there were such compelling reasons of a humanitarian nature being connected to the applicant's reasons for leaving Togo that it should be held that, in all reasonability, it could not be expected from the applicant to return to his country of origin. No further appeal lay against this decision.

On 16 October 2003, the applicant filed a third request for asylum on the basis of newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden). When, on the same date, he was interviewed by the immigration authorities on this request, the applicant stated inter alia that he was cohabiting with another asylum seeker from Togo since 2002 and that two children had been born out of this relationship in March 2002 and July 2003, respectively. He further stated that his family in Togo consisted of his mother and a younger brother.

This third request was rejected on 19 October 2003 by the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), who had succeeded the Deputy Minister of Justice under the Aliens Act 2000 (Vreemdelingenwet) which, on 1 April 2001, had replaced the Aliens Act 1965. As to the applicant's argument that, given his HIVinfection, his expulsion to Togo would be in violation of his rights under Article 3 of the Convention; the Minister recalled that, according to the constant case-law, such a situation would only arise if the alien concerned found himself in an advanced and directly life-threatening stage of an incurable disease. The Minister found that there were insufficient indications in the applicant's submissions for holding that there was such a situation in his case and, on this basis, concluded that – irrespective of the possibilities of treatment in Togo and the presence a social support network there – the applicant's case did not raise an issue under Article 3 of the Convention. Moreover, as already indicated in the decision of 19 December 2001, the applicant could apply for a temporary residence permit on medical grounds. The Minister further found no indication in the applicant's case for concluding that, owing to traumatic experiences linked to the reasons for leaving the country of origin, it could not in all reasonability be expected from the applicant to return to Togo thus rendering him eligible for a residence permit on grounds of compelling reasons of a humanitarian nature. On this point, the Minister considered that the health problems relied on by the applicant were not linked to his reasons for leaving Togo. The applicant was ordered to leave the Netherlands within 24 hours.

On 25 October 2003, the Minister informed the Central Agency for the Reception of Asylum Seekers (Central Orgaan opvang Asielzoekers; “COA”), since the applicant's asylum request had been rejected on 19 October 2003, the applicant's entitlement to State-sponsored reception and care facilities for asylum seekers (“opvang”) had ceased. However, the Minister was of the opinion that the applicant's expulsion should be stayed under Article 64 of the Aliens Act 2000 as, according to medical advice obtained, the applicant was unfit to travel. The Minister therefore advised the COA to prolong the provision of reception and care facilities to the applicant until 8 January 2004. On the same day, the Minister informed the applicant that the COA had been advised to prolong until 8 January 2004 the provision of facilities. The Minister further indicated that an advice of the Medical Advice Bureau (Bureau Medische Advisering) would be sought on a possible prolongation of this period.

On 3 November 2003, the applicant's treating specialist doctor of the Groningen Academic Hospital informed the applicant's lawyer that, two years after having started treatment in August 2001, the applicant's condition was stable but that his immune system had apparently been so weakened when he had started treatment that it had still not been properly restored. The doctor further stated that by the suppression of the AIDS virus there was no direct danger, but that as soon as the anti-HIV therapy would be stopped, the applicant would fall back to the advanced stage of the disease which, given its incurable nature, would entail a direct threat for life.

The applicant's appeal against this Minister's decision of 19 October 2003 was dismissed by the Regional Court of The Hague on 13 November 2003.

By letter of 4 March 2004, the Minister for Immigration and Integration informed the applicant's lawyer that, before a decision could be taken on the question whether the applicant's expulsion should be stayed further on medical grounds, it was necessary to obtain medical information from the doctors treating the applicant for which the latter's written consent was required. The applicant's lawyer was requested to return the appended consent form within two weeks.

On 25 March 2004, the Minister informed the applicant that, pending the issuance of an advisory opinion of the Medical Advice Bureau about his situation and on the basis of Article 64 of the Aliens Act 2000, his expulsion would be stayed until 8 July 2004.

The applicant's appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State against the ruling given on 13 November 2003 by the Regional Court of The Hague was rejected on 5 April 2004. Although the Administrative Jurisdiction Division accepted that the letter of 24 March 2003 of the Groningen Academic Hospital constituted a relevant new fact, it found that this could not lead to quashing the impugned decision taken by the Minister on 19 October 2003. It considered that it could not be concluded from the contents of this letter that the applicant's illness had attained such an advanced and direct lifethreatening stage that it should be held that the expulsion of the applicant to Togo or any other country would be in violation of Article 3 of the Convention. It further took into consideration that – according to an additional medical statement of 3 November 2003 that had been submitted to the Regional Court – the HIV-virus would be suppressed as long the applicant would continue taking medication, so that there was no direct threat for life. It therefore accepted that there were no grounds on the basis of which the Minister should reconsider the decision of 19 December 2001.

Under Article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet, hereinafter “the Act”), which was in force until 1 April 2001, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Geneva Convention (decision of the Judicial Division (Afdeling Rechtspraak) of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1).

On 1 April 2001, the Aliens Act 2000 entered into force. On the basis of Article 29 of the new Aliens Act, an alien may be eligible for a residence permit for the purposes of asylum if, inter alia,

– he or she is a refugee within the meaning of the Geneva Convention, or

– he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the res iudicata principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible.

The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugeelaw] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention.

During the initial asylum procedure, an alien is in principle entitled to reception and other facilities including health care, provided by the State. Pursuant to Article 10 of the Aliens Act 2000, an alien whose stay in the Netherlands is not lawful is not entitled to such facilities. This provision applies to asylum seekers whose applications have been unsuccessful. Also, a second or further application for asylum does not confer a new entitlement to facilities. An exception to that basic principle can nevertheless be made if, inter alia, the asylum seeker finds him or herself in extremely compelling humanitarian circumstances (zeer schrijnende humanitaire omstandigheden, Chapter C5/20.4 of the Aliens Circular 2000).

The COA decides whether or not facilities will be provided. Appeal lies against a decision to refuse facilities, but also against a failure to decide (or to decide within a reasonable time) on a request for facilities. The lodging of an appeal does not suspend the denial of facilities, but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings.

According to Article 63 of the Aliens Act 2000, the Minister can order the expulsion of an alien illegally staying in the Netherlands and who has not voluntarily left the Netherlands within the time-limit fixed for this purpose. However, pursuant to Article 64 of the Aliens Act 2000, no expulsion will take place when, in view of the health condition of the alien, travelling is contra-indicated.

In a report dated September 2000 of the German Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) on HIV and AIDS in Togo, it is stated that – according to information set out in the UNAIDS/WHO Epidemiological Fact Sheet 2000 on TOGO – it was assumed that 5.98% of the adult population in Togo was HIV-positive whereas less than 5% of the total population in Togo is insured against sickness. As regards the local possibilities of treatment, the report states that – although treatment is possible in various hospitals in the capital of Togo as well as in all regional hospitals – many patients cannot afford treatment.

According to a report issued on 20 August 2002 by the Swiss Federal Office for Refugees (Office federal des réfugiés), treatment is available in Togo, both in various hospitals in its capital Lomé and in four regional hospitals. It further states that, as less than 5% of the total population in Togo has a health insurance, the costs of treatment are generally borne privately and that, as the average monthly income in Togo lies between 38 and 76 euros, a person infected with HIV or suffering from AIDS who does not have health insurance will hardly be able to afford treatment if relatives are unable to provide financial support, despite the fact that negotiations between the Togolese authorities and the pharmaceutical industry have resulted in a considerable reduction of the prices of certain medications for the treatment of HIV/AIDS.


Remainder inadmissible;Violation of Art. 10

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1948 and lives in the town of Karachev in the Bryansk Region.

In January 1999 the applicant, a former military officer, sent a letter to the commander of military unit no. 64176, who supervised the command of unit no. 92919. The letter read as follows:

“On 24 December 1998 the command of military unit no. 92919 held a meeting of war veterans ... who live in the military compound. The meeting adopted an open letter to the Ministry of Defence of the Russian Federation with a request to return the town baths to the compound residents and to stop discrimination against the residents on account of their social or official status ...

Commanders of the military unit conduct themselves as ‘usurpers, invaders and occupants’. In a short period of time the new commander of military unit no. 92919, Colonel Shatov, destroyed the town dance hall and the warehouse for vegetables, locked up the leisure centre of the unit, performed an unauthorised dismantling of the bus park and threw everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle of chosen ones.”

Mr Shatov lodged a defamation action against the applicant, claiming that the letter of January 1999 had impaired his honour and dignity. He sought compensation in respect of non-pecuniary damage and a written apology, enclosing its proposed text.

By judgment of 13 July 2000, the Karachevskiy District Court of the Bryansk Region found for the plaintiff. It established that the dance hall and the warehouse had been indeed dismantled, but the materials had been used for the needs of the military unit, that the leisure centre was open, and that the soldiers and officers and their family members could still use the baths. The court noted that the document the applicant produced to prove the dismantling of the bus park could not be used in evidence as it bore no stamp.

The District Court found that the information stated in the letter of January 1999 had been untrue and damaging to Mr Shatov’s honour and dignity, and ordered as follows:

“Pursuant to Articles 152 § 5 and 151 of the Civil Code, the court orders [the applicant] to pay Mr Shatov 500 Russian roubles in respect of non-pecuniary damage because the allegations about Mr Shatov’s ‘discrimination against citizens, [his acting as an] usurper, invader, occupant, destruction of the dance hall and the warehouse, unauthorised dismantling of the bus park and throwing everyone out of the bathhouse which he converted into a ‘brothel’ for a narrow circle’ have impaired Mr Shatov’s honour and dignity...

...to order that [the applicant] make a written apology to Mr Shatov within one month, worded as follows: “In January 1999 I, [the applicant], sent to the commander of military unit no. 64176 a letter containing information on your professional activities, which was untrue and damaging to your honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise to you for having disseminated such information, for undermining your authority in the eyes of your subordinates and superiors, compound residents and the Karachev town residents, and for causing you personal suffering”;

...and to make an apology to the commander of military unit no. 64176 of Moscow worded as follows “In January 1999 I, [the applicant], sent you a letter containing information on the professional activities of the commander of military unit no. 92919, Mr Shatov, which was untrue and impaired Mr Shatov’s honour and dignity. This fact was established by the Karachevskiy District Court on 13 July 2000. I apologise for misleading the command of military unit no. 64176 by giving untrue information.”

The applicant appealed against the judgment of 13 July 2000. He claimed that the letter of January 1999 contained his own value judgments, which were not amenable to proof. On 15 February 2001 the Bryansk Regional Court upheld the judgment, endorsing the reasons of the first-instance court.

Article 29 of the Russian Constitution guarantees the freedom of expression. Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies.

Article 12 of the Civil Code is a general provision containing a list of the forms of redress which can be obtained in respect of civil rights. It includes recognition of a right, restitutio in integrum, compensation in respect of pecuniary or non-pecuniary damage and other forms of redress prescribed by law. Article 152 of the Code reads in its relevant parts as follows:

“1. A citizen shall have the right to claim through the court that the information discrediting his honour, dignity or business reputation be refuted, unless the person who has disseminated such information proves its truthfulness ...

If the information discrediting the honour, dignity or business reputation of the citizen has been disseminated by the mass media, it shall be refuted by the same media ...

The citizen with respect to whom the media have published the information infringing upon his rights or protected interests shall have the right to publish his reply in the same media ...

The citizen with respect to whom the information discrediting his honour, dignity or business reputation has been disseminated shall also have the right, in addition to the refutation of the given information, to claim compensation in respect of pecuniary and non-pecuniary damage caused by the dissemination.

If the person who has disseminated the information ... cannot be identified, the citizen shall have the right to turn to the court with a demand that it recognise the disseminated information as untruthful ...”

Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”.

In their Resolution of 24 February 2005, the Plenary Supreme Court recalled that under Article 29 § 3 of the Constitution no one can be compelled to express his opinions or beliefs or compelled to refrain from expressing them. It thus instructed the courts below that an apology, whatever its form, was not prescribed under Russian law, including Article 152 of the Civil Code, as redress (point 18). The above does not exclude the possibility for a judge to approve a friendly-settlement agreement the terms of which require such an apology. The Supreme Court also instructed the other courts that when a citizen lodges a complaint with a public authority alleging, for instance, that a criminal offence has been committed and when such an allegation proves to be unfounded, the latter fact cannot serve as a basis for an action under Article 152 of the Civil Code. The Supreme Court explained that civil liability could not arise in such a situation in view of the applicant’s exercise of his right of petition to a public authority, which was to carry out an inquiry, and that such a situation did not equate to dissemination of false defamatory information (point 10). A defamation action may only succeed if a court has established that the petition to the public authority lacked any foundation and was intended to cause damage to another person, thus amounting to an abuse of the right (ibid).

Until 2006 the general administrative complaints procedure was prescribed by Decree no. 2534-VII issued by the Presidium of the USSR Supreme Council on 12 April 1968, as subsequently amended in 1980 and 1988, in so far as it was compatible with the 1993 Constitution and the 1993 Judicial Review Act. A number of public authorities had individual regulations on the matter.

According to the 1968 decree, a written petition or complaint should be signed by the complainant and should indicate his or her full name and place of residence (point 1). A petition or complaint should be submitted to the official or authority who is the immediate superior of the official or authority against whom the complaint is directed (point 3). The filing of defamatory petitions or complaints should be punishable by the law (point 15).

The Petition Procedure Act of 2 May 2006 (Federal Law no. 59-ФЗ) sets up a new framework for administrative complaints and petitions. According to its section 11 § 3, a petition containing obscene or insulting phrases, threats to life or limb of an official or his or her family members, may be left without examination on the merits; in such cases the complainant should be warned against the abuse of the right.