The applicant, Nils-Inge Rosenquist, is a Swedish national, who was born in 1955 and lives in Spain. He is represented before the Court by Mr Bengt-Inge Björkhem, a lawyer practising in Kristianstad. The respondent Government are represented by their Agent, Mrs Inger Kalmerborn of the Ministry of Foreign Affairs.

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

I.

In the beginning of the 1990s the applicant was carrying out his business through some private limited companies in Sweden. He emigrated from Sweden to Spain on 6 November 1995.

As to the income year 1991, the applicant failed to fulfil his obligation to file his tax return. Thus, in 1992 the Tax Authority in Kristianstad made a discretionary assessment, that the applicant for the said year had had 55,124 Swedish kronor (SEK) as income from employment, SEK 295,401 as income from capital, and that his taxable property amounted to SEK 1,032,755. At the same time, pursuant to the Taxation Act (Taxeringslagen 1990:324) a tax surcharge of SEK 43,801 was imposed on the applicant, which he did not appeal against.

In 1995, a search was carried out at the premises of the applicant’s auditor. In this connection information was found, which indicated that the applicant’s taxable income for 1991 had been considerably larger than the Tax Authority has assessed in 1992. Accordingly, the Tax Authority carried out an additional assessment. By decision of 30 October 1995 the applicant’s income from employment, capital, and taxable property was increased by respectively SEK 702,800, SEK 6,442,283, and SEK 3,087,721, resulting in an additional tax calculated at SEK 2,336,723. By decision of 15 November 1995 an additional tax surcharge was imposed pursuant to chapter 5, section 2 of the Taxation Act, amounting to SEK 934,683 equal to 40 per cent of the additional income tax levied.

The applicant appealed against the Tax Authority’s decision of 30 October 1995 to the County Administrative Court in Skåne (Länsrätten i Skåne Län), which rejected his appeal by judgment of 28 October 1999. On 13 December 2002, the Administrative Court of Appeal in Gothenburg (Kammarrätten i Göteborg), confirmed this decision. Leave to appeal was refused by the Supreme Administrative Court on 8 March 2004.

II.

In the meantime, by indictment of 11 January 1999 the applicant was charged inter alia pursuant to sections 2 and 4 of the Tax Offences Act (Skattebrottslagen, 1971:69) with aggravated tax fraud in that he had failed to file his tax return for the fiscal year 1991 allegedly with the intent of evading tax.

On 4 April 2000 before the District Court in Kristianstad (Kristianstad Tingsrätt) the prosecution applied for the detention of the applicant on remand in absentia. The applicant, being absent but represented by counsel, applied for the criminal trial against him to be dismissed by invoking Article 4 of Protocol no. 7 to the Convention. By decision of the same day the court found against the applicant.

On 27 April 2000, on appeal, the Court of Appeal (Hovrätten över Skåne ock Blekinge) upheld the decision and the Supreme Court (Högsta Domstolen) refused the applicant’s request for leave to appeal on 8 May 2000.

The applicant reported himself voluntarily to the police in Kristianstad in August 2001, whereupon the criminal trial against him commenced before the District Court in Kristianstad.

Having heard inter alia the applicant’s auditor as a witness, by a judgment of 24 October 2001 the District Court in Kristianstad convicted the applicant of aggravated tax fraud as it found it established that he had failed to file his tax return for the income year 1991 with the intent of evading part of the tax due, amounting in total to SEK 2,336,723. The applicant was sentenced to one year’s imprisonment.

On appeal, by judgment of 24 April 2003 the Court of Appeal upheld the conviction but increased the sentence to two years’ imprisonment.

Leave to appeal against the judgment to the Supreme Court was refused on 22 October 2003.

Taxes and tax surcharges

Income tax and property tax are determined by the county tax authorities, to which taxpayers are obliged to submit information relevant to the assessment of taxes. For the purpose of securing timely, sufficient and correct information, there are provisions stipulating that, under certain circumstances, the tax authorities may impose administrative sanctions in the form of special charges - tax surcharges and delay charges – on the taxpayer. The said charges were introduced into Swedish tax legislation in 1971 (up till then a taxpayer’s submission of incorrect information could only be sanctioned within the penal system). According to the preparatory notes (Government Bill 1971:10) the main purpose of the reform was to create a more effective and fairer system of penalties than the old one, which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution. Unlike sanctions for tax offences, the administrative charges are determined solely on objective grounds, without regard to any form of intent or negligence on the part of the taxpayer.

A tax surcharge is imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (chapter 5, section 1 of the Taxation Act) or if, following a discretionary assessment, the tax authority decides not to rely on the tax return (chapter 5, section 2). It is not only statements expressly submitted that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. However, incorrect claims are not penalised; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof, no surcharge is imposed. The burden of proving that the information is incorrect lies with the tax authority. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority cannot base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so (chapter 4, section 3). In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time-limit. The surcharge amounts to 40 per cent of either the income tax which the Tax Authority would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment (the corresponding provisions on value-added tax and employer’s contributions stipulate that the surcharge equals 20 per cent of the supplementary tax levied on the taxpayer. In certain circumstances, the rates applied are 20 per cent or 10 per cent respectively, for the various types of tax).

Notwithstanding the fact that the taxpayer has furnished incorrect information, no tax surcharge will be imposed in certain situations, for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer, when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities, such as a certificate of income from the employer, or when the taxpayer has corrected the information voluntarily (chapter 5, section 4).

Moreover, in certain circumstances, a tax surcharge will be remitted. Thus, taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age, illness, lack of experience or comparable circumstances. The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances, or when it would be manifestly unreasonable to impose a surcharge (chapter 5, section 6). The phrase “the nature of the information” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question. According to the preparatory documents (Government Bill 1991/92:43, p. 88), the expression “manifestly unreasonable” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons. If the facts of the case so require, the tax authorities must have regard to the provisions on remission, even in the absence of a specific claim to that effect by the taxpayer (chapter 5, section 7). In principle, however, it is up to the taxpayer to show due cause for the remission of a surcharge.

If dissatisfied with a decision concerning taxes and tax surcharges, the taxpayer may, before the end of the fifth year after the assessment year, request the tax authority to reconsider its decision (chapter 4, sections 7 and 9). A decision concerning surcharges may also be reviewed at the taxpayer’s request after the expiry of this time-limit, if the decision on the underlying tax issue has not yet become final (chapter 4, section 11). The tax authority may also, on its own motion, decide to review its own earlier decision. A review to the taxpayer’s disadvantage must be made before the end of the year following the assessment year unless the taxpayer, inter alia, has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information, in which case the time-limit normally expires at the end of the fifth year after the assessment year (chapter 4, sections 7 and 14-19).

The tax authority’s decision may also be appealed against to a county administrative court. As with requests for reconsideration, an appeal has to be lodged before the end of the fifth year after the assessment year (chapter 6, sections 1 and 3), unless it concerns a tax surcharge based on a tax decision that has not yet become final (chapter 6, section 4). Following the appeal, the tax authority must reconsider its decision as soon as possible and, if it decides to vary the decision in accordance with the taxpayer’s request, the appeal will become void (chapter 6, section 6). If the decision is not thus amended, the appeal is referred to the county administrative court. If special reasons exist, an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment (chapter 6, section 7). Further appeals lie to an administrative court of appeal and, subject to compliance with the conditions for obtaining leave to appeal, the Supreme Administrative Court.

A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge, which is reduced correspondingly (chapter 5, section 11). The tax surcharge may, however, be challenged separately, if grounds for reduction or remission exist (see above).

Decision concerning taxation can also be reconsidered on the tax authorities’ own initiative. A review to the taxpayer’s disadvantage must be made before the end of the year following the assessment year. However, in some situation such a review may be made until the end of the fifth year following the assessment year, so-called additional assessment (eftertaxering). This is the case, inter alia, if the taxpayer has provided incorrect information during the course of the tax proceedings or has failed to file a tax return despite the obligation to do so (chapter 4, sections 14-16 of the Taxation Act). An additional assessment shall only be made if an amount of some importance is at stake. When undertaking an additional assessment the tax authority has to decide about additional tax, i.e. tax that is imposed after the imposition of final tax has been concluded. It may also decide to impose a tax surcharge according to the principles above.

Criminal law provision

A taxpayer who has not fulfilled his obligation to submit correct and relevant information to the tax authorities or who, with the object of evading tax, has failed to file a tax return or a similar document may be subjected to a criminal charge according to provisions laid down in the Tax Offences Act. For the taxpayer to be convicted on such a charge it has to be established that the failure to submit correct information or to file a tax return is the result of criminal intent or gross negligence on his part. A charge under the provisions of the Tax Offences Act is brought in accordance with the rules governing criminal proceedings in general, which means among others things that a taxpayer can only be convicted upon prosecution and trial by the general courts and that the burden of proof is on the prosecutor. It follows from sections 2-4 of the Tax Offences Act that a taxpayer who intentionally submits incorrect information in writing to the tax authorities or who fails to file a tax return, thereby causing risk of an erroneous taxation to his advantage, shall be sentenced to a penalty ranging from a fine for petty offences to imprisonment for a maximum of six years for cases of aggravated tax crime (grovtt skattebrott).

The fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings. Moreover, a decision to impose a tax surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge. When considering the penal sanction, however, the general courts are supposed to pay attention to the fact that a surcharge has been imposed (cf. Government Bill 1971:10, pp 351 and 364). A criminal charge should be brought against a taxpayer only if the evaded tax is of some significance. According to an agreement between the Prosecutor General (Riksåklagaren) and the National Tax Board (Riksskatteverket) the tax authorities shall not normally inform the prosecutor unless the evaded tax amounts to at least 75 per cent of the basic amount for national security purposes (which in 1992 amounted to SEK 33,700). In addition, section 13 provides that an indictment shall not be brought for a petty tax offence, unless there are special reasons therefore.

Tax surcharges and the Convention in Swedish case law

In a judgment delivered on 29 November 2000 the Swedish Supreme Court considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (case no. B 868-99, published in Nytt juridiskt arkiv (NJA) 2000, p. 622). Having noted that, under Swedish law, a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the European Court’s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol no. 7 to the Convention, did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied as it was a matter of two different offences. It underlined in this connection that the imposition of tax surcharges requires neither intent nor negligence, while in order to be convicted of tax fraud it must be established that the accused had a criminal intent.

In a judgment delivered on 13 September 2002 the Supreme Administrative Court considered whether the imposition of a tax surcharge in tax proceedings could be upheld following a person’s conviction of a tax offence in criminal proceedings (case no. 624-1999, published in Regeringsrättens Årsbok (RÅ) 2002, ref 79). The Supreme Administrative Court recalled inter alia:

“that taxation in Sweden is largely based on information given by the individual and certification by him or her of information received from other sources. The purpose of the tax surcharge is to emphasise, inter alia, that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information. In principle, carelessness is not acceptable. Furthermore, the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed. In other words, the taxpayer is required to have a certain knowledge of the tax rules”.

The Supreme Administrative Court concluded that the applicant had not been punished twice for the same offence as prohibited by Article 4 of Protocol no. 7 to the Convention, notably in that:

“a tax surcharge is a general and standardised sanction the purpose of which is, inter alia, to prevent inaccuracy when complying with the legal obligation to complete a tax return. Provided there is no ground for remission it is always set at one of two fixed percentages. It is imposed regardless of intent or negligence. If a person intentionally submits incorrect information or fails to file a tax return, an additional sanction may be imposed for tax fraud. The intent, which the prosecutor must prove, is one of the essential elements of this offence. The offence leads either to imprisonment or, having regard to the personal circumstances of the accused, some of the other possible punishments. Thus, in comparison with the grounds required for imposing a tax surcharge, in order to convict an accused of tax fraud, another essential requirement must be fulfilled. Accordingly, in the sense of the European Convention, it is a question of two different offences.”

Recently, the Council on Legislation (Lagrådet), which is composed of three judges from the two highest courts in Sweden, scrutinised a Government Bill proposing amendments to the Taxation Act and commented in this connection on the principle of ne bis in idem. The Council considered, inter alia, in the light of the decision Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, decision of 14 September 1999, ECHR 1999-VI, that is was reasonable to assume that the fundamental conditions for tax surcharges and intentional tax offences differed in such a way that no conflict with Article 4 of Protocol no. 7 to the Convention would arise (opinion of 23 January 2003 of the Council of Legislation).


The applicant was born in 1971 and lived in Przemyśl, Poland.

On 14 August 1997 the applicant was arrested by the police. On 15 August 1997 the Przemyśl District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide.

Subsequently, the applicant's pre-trial detention was prolonged on several occasions, in particular at the hearing held on 5 November 1998.

On 21 December 1998 the Przemyśl Regional Court (Sąd Wojewódzki) convicted the applicant of homicide and sentenced him to 25 years' imprisonment.

On 29 April 1999 the Court of Appeal quashed the impugned judgment and remitted the case.

On 2 June 1999 the Przemyśl Regional Court (Sąd Okręgowy) decided to prolong the applicant's pre-trial detention. The court gave the following reasons:

“Prolongation of the applicant's detention on remand is justified by the fact that the applicant has been accused of homicide.”

On 24 February 2000 the Przemyśl Regional Court dismissed the applicant's request for release. The reasons of the decision are as follows:

“[The applicant] has been accused of having committed [a homicide] and the original reasons for keeping him in detention are still valid.”

On 3 March 2000 the Przemyśl Regional Court further prolonged the applicant's pre-trial detention. The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence.

On 12 April 2000 the trial court held the first hearing. Subsequently, ten hearings were held.

On 2 June and 29 August 2000 the applicant's pre-trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him in custody.

On 14 September 2000 the Rzeszów Court of Appeal dismissed the applicant's appeal against the decision of 29 August 2000.

The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions.

On 28 December 2000 the Rzeszów Regional Court gave judgment. The court convicted the applicant and sentenced him to 25 years' imprisonment. The applicant appealed.

On 17 May 2001 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the impugned judgment. The court sentenced the applicant to 15 years' imprisonment. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).

On 28 February 2002 the Supreme Court dismissed his cassation appeal as being manifestly ill-founded.

On 28 February 2001 the Court's Registry sent to the applicant, who at that time had been detained on remand in the Przemyśl Detention Centre, an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with the Court. The Court's envelope delivered to the applicant bears the stamp: Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie) and a handwritten note: censo., 21.03.2001 (cenzu. 21.03.01).

The envelope from the Chancellery of the Senate of the Republic of Poland of 30 January 2001 bears the same stamp as above and a handwritten note: censored, 1 [February 20]01 (cenzurowano, 7.02.01) and an illegible signature.

The applicant also submitted that his correspondence with his courtappointed lawyer had been censored by the authorities of the Przemyśl Detention Centre. He provided an envelope addressed to his lawyer which bears the following stamps: the Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie), a hand-written note: censored, 19 [July 20]00 (cenzurowano, 19.07.2000) and an illegible signature. The envelope was posted on 19 July 2000. The second envelope, also addressed to his lawyer, bears the same stamp of the Regional Court, a date: 1.02.2001 and an illegible signature.

The third envelope was addressed to the applicant by his lawyer. The envelope, posted on 26 January 2001, bears the following stamps: the Przemyśl Prison 29.01.2001 (Zakład Karny w Przemyślu), the Rzeszów Regional Court, 1.02.2001, and an illegible signature.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand.

A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgments in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000XI, and Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. Article 102 (11) of the 1997 Code provides that convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. The relevant part of Article 103 § 1 of the Code provides as follows:

“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”

Pursuant to Article 214 § 1,

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison....”

Article 73 of the Code of Criminal Procedure provides that a person detained on remand has a right to communicate freely with his lawyer. A prosecutor may order the control of the detainee's correspondence with his lawyer; however, such measure cannot be maintained longer than 14 days after the detention order has been imposed.

For a more detailed rendition of the relevant domestic law provisions, see the Court's judgments in Michta v. Poland, no. 13425/02, § 33, 4 May 2006 and Kwiek v. Poland, no. 51895/99, § 23, 30 May 2006.


Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to the right of access to a court;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1947 and lives in the city of Toronto, Canada.

As of 1988 the applicant ran a business in the city of Yalta, Ukraine, keeping a part of his profit in cash.

By the Presidential Decree of 22 January 1991, the bank-notes of 50 and 100 Soviet roubles issued in 1961 ceased to circulate and had to be exchanged for the notes of the same nomination issued in 1991. The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange, providing, inter alia, that a special sub-commission (hereinafter the exchange commission) should be created within the executive committees of the City or District Councils to decide on the exchange of bank-notes. The exchange commissions were empowered to allow or refuse exchanges fully or in part, depending on the legality of the source of income being proved.

In January 1991 the applicant put the amount of 230,000 Soviet roubles in 50 and 100 notes into an account at the Yalta Branch of the USSR State Bank. At the same time the applicant applied to the Yalta exchange commission for an exchange of that sum. On 25 March 1991 the commission (Решение комиссии Ялтинского Городского Совета народных депутатов по обмену денежных знаков) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income, and limited the exchange to 2,462 roubles. The remaining sum of 227,538 roubles was not compensated.

The applicant challenged that decision before the higher exchange commission of the Republic of Crimea. On 6 May 1991 the latter upheld the decision of the Yalta exchange commission.

The Government submit that, in accordance with the resolution of the Cabinet of Ministers of the USSR no. 2 of 22 January 1991, which regulated the procedure for the exchange of bank-notes, this decision of 6 May 1991 was final.

At the same time the State Security Service checked the legality of the applicant's business and found no irregularities.

On 19 July 1991 the applicant instituted proceedings in the Yalta City Court against the exchange commission for its refusal to exchange the full sum of 230,000 roubles.

On 22 July 1991 the Yalta City Court (Определение Ялтинского городского народного суда) rejected the claim for lack of jurisdiction.

The applicant appealed to the Crimean Regional Court against the judgment of the Yalta City Court. On 26 August 1991 the former quashed the judgment of the latter and remitted the case for further consideration.

On 16 October 1991 the Yalta City Court (Решение Ялтинского городского народного суда) found for the applicant and ordered the executive committee of the Yalta City Council to exchange all the money deposited by the applicant (230,000 roubles).

On 8 April 1992 the Crimean Regional Court (Определение Крымского областного суда) upheld this judgment.

On 17 April 1992 the judgments of 16 October 1991 and 8 April 1992 were quashed by the Presidium of the Crimean Regional Court (Постановление Президиума Крымского областного суда).

On 14 April 1993 the Civil Chamber of the Supreme Court of Ukraine (Ухвала Верховного Суду України) quashed the latter judgment and upheld the judgments of 16 October 1991 and 8 April 1992 in the applicant's favour. This judgment was final.

The judgment was not fully enforced for several years. On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate. On 23 May 1996, 10 December 1996, 27 May 1997 and 23 June 1998, the Yalta City Court granted the claims due to the longstanding non-enforcement of the judgment in the applicant's favour. The latter court decision increased the amount to UAH 349,387.82.

By letter of 26 June 1998, the Yalta City Mayor requested the Deputy Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the judgment of the Supreme Court of Ukraine given in favour of the applicant.

On 30 June 1998 the Chairman of the Court ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered.

On 9 September 1998 the Deputy Chairman of the Supreme Court of Ukraine lodged a supervisory review appeal with the Plenary of the Supreme Court (Постанова Пленуму Верховного Суду України) against the judgments in the applicant's favour.

On 25 September 1998 the Plenary allowed the appeal and quashed the said judgments, upholding the initial judgment of the Yalta City Court of 22 July 1991 to reject the applicant's claim for lack of jurisdiction. The Plenary decided that, since the exchange of banknotes was regulated by the Government Decree of 1991 (paragraph 9) which provided for the non-judicial review of the decisions of exchange commissions, the dispute was outside the courts' jurisdiction under the legislation in force in 1991.

The Yalta Mayor then requested the Yalta City Court to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him (15% of the sum originally awarded). According to the Government, the court did not examine that request because, under an agreement between the parties, the applicant returned the money which had been paid to him.

By a letter of 25 November 1998, the Constitutional Court of Ukraine informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts.

By a resolution of 9 December 1998, the proceedings on the applicant's case were closed due to the quashing of the judgment of 16 October 1991 by the Plenary of the Supreme Court.

At the material time, Chapter 42 of the Code of Civil Procedure subjected final and binding judgments to a possible supervisory review. When a final judgment was given by the Supreme Court of Ukraine, it could be appealed under the supervisory review procedure by the Chairman of the Supreme Court of Ukraine, the Prosecutor General of Ukraine and his or her Deputies (Article 328), and had to be considered by the Plenary of the Supreme Court (Article 329). The judgments of the Plenary were not subject to any further review.

The supervisory review procedure was repealed in June 2001.


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicants, Ms R.W. and her twin daughters, are Kenyan nationals who were born in 1986 and 2009. They were represented before the Court by Mr J. Nyström, a lawyer practising in Skellefteå.

The first applicant arrived in Sweden from Nairobi, Kenya on 9 July 2008 and applied for asylum on the same day. She submitted before the Migration Board (Migrationsverket) that she had been subjected to an attempted female genital mutilation (FGM) or possibly to an initiation to the Mungiki sect by friends of her former boyfriend.

In January 2008 the applicant had allegedly run away from home to marry her boyfriend, with whom she had been in a relationship for approximately one year. The boyfriend, who belonged to the Mungiki sect, had taken her to see an old man who had performed some sort of ritual. She did not know if the ritual had been performed in order for them to get married or if it had been an initiation to the Mungiki group. After the ritual her boyfriend had taken her to a friend’s home and subsequently left the house. His friends had told her that they were going to perform FGM on her. When she refused to cooperate, they had beaten and raped her. They had been interrupted by neighbours who had heard her scream, but the perpetrators had told her that she would not get away. After the incident she had returned to her family home and told her mother about the incident. Her mother had urged her to report the perpetrators, but she had been afraid to do so as the boyfriend’s clan had great influence on the police and authorities. Instead she had moved to a friend’s home in Kakamega shortly after the incident and had subsequently left the country, due to her fear of being found by her boyfriend. She feared that she would be killed or persecuted by her boyfriend or other members of the Mungiki group as she had refused FGM and had run away.

Shortly after her arrival in Sweden, the applicant met a man and became pregnant. The man, who was later deported from Sweden, did not want to take any responsibility for the applicant or his children.

On 9 September 2009 the Migration Board questioned the applicant’s credibility and rejected the request for asylum. The Board noted that FGM was prohibited by law in Kenya, but was still practised, inter alia, by the Mungiki sect. It further noted that women at risk of being subjected to FGM often did not receive sufficient protection. However, the applicant had stated that her mother opposed female genital mutilation, and that she had urged the applicant to report the perpetrators to the police. Furthermore, the applicant had not known the purpose of the ritual to which she had been subjected and it was therefore found unlikely to have been an initiation to the Mungiki sect. It was noted that the applicant’s boyfriend had not searched for her, despite her claim that he knew where she was. The Board found that the applicant would be able to seek protection from the Kenyan authorities and her own family. According to her own information, FGM was no longer practised by her people, the Kikuyu.

On 14 September 2009 the second and third applicants were born.

The applicant appealed against the Board’s decision to the Migration Court (Migrationsdomstolen) and added that she had given birth to two children out of wedlock and would be regarded as a prostitute in Kenya. She submitted that she was no longer in contact with her mother, and did not know how her mother would react to the applicant having children. She had travelled to Sweden by plane via another European country, but did not know which. She had not carried a passport.

On 25 March 2010 the Migration Court rejected the applicant’s appeal and upheld the Board’s decision. The court found reason to question the applicant’s story, in particular with regard to her identity and her travel route to Sweden. This affected her overall credibility. Her account of the alleged incident was considered vague. She had not known whether the alleged ritual was an initiation or a wedding ceremony, and her description of the ritual contradicted country information. The court considered that it was not likely that the applicant had been married or initiated through the alleged ritual. She was considered to have been subjected to a criminal offence performed by private actors and such criminal activity was predominantly an issue for the Kenyan authorities. Referring to relevant country information, the court found that the police were taking measures to control the Mungiki sect. The applicant had failed to demonstrate that the domestic authorities were not willing or able to protect her. It was furthermore noted that FGM was not performed by her people, and that her family opposed the tradition.

On 6 May 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.

An application for asylum was also submitted on behalf of the second and third applicants. It referred to their mother’s involvement with the Mungiki sect and stated that they were at risk of FGM if deported to Kenya. It was also submitted that they would be at risk of ill-treatment as they had been born out of wedlock.

On 15 July 2010 the Migration Board rejected the second and third applicants’ request for asylum. The Board referred to its decision regarding the first applicant and found that it was not plausible that they would be at risk of FGM and ill-treatment on return to Kenya.

On 29 October 2010 the Migration Court rejected the second and third applicants’ appeal and upheld the Board’s decision.

On 23 March 2011 the Migration Court of Appeal refused leave to appeal.

The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716).

Chapter 5, section 1 of the Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.

According to Chapter 4, section 1 the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).

Norwegian country information (Norwegian Landinfo, Report Kenya: Mungiki – Abusers or abused?, 29 January 2010) describes the Mungiki group as follows.

“[T]he Mungiki movement [is] the largest and best known of the organised armed criminal, political and religious groups in Kenya, with a large following among the Kikuyus. Mungiki operates primarily in the Nairobi slums, in the Central Province and in the Rift Valley. Although Mungiki offers poor residents in slum areas protection and social services, extortion and violence tend to constitute their mode of operation. Gross human rights violations perpetrated against civilians, adversaries and defecting members are attributed to them. The Kenyan authorities have not succeeded in their attempts to limit Mungiki’s influence or abuses, despite recent crack downs...”

The Mungiki movement is also reportedly “encouraging, demanding and enforcing female genital mutilation practices upon girls and women in its communities”, including partners and family members of those who have joined the movement. Members who defect are at serious risk of being killed or harassed.

In a report on female genital mutilation, UNICEF states that the prevalence of the practice in Kenya has decreased in recent years. Throughout Kenya, 27% of all women have been mutilated. Among Kikuyus, 21% of all women aged 15-49 are said to have been mutilated (United Nations Children’s Fund, The Dynamics of Social Change. Towards the Abandonment of Female Genital Mutilation/Cutting in Five African Countries, October 2010).

More recently, the U.K. Home Office (Operational Guidance Note – Kenya, 2 February 2012) stated the following:

“3.6.5 The Government of Kenya has taken a clear position on the abandonment of FGM and other harmful tribal practices. It is illegal to carry out FGM on females aged 18 or younger, although no similar protection currently exists for women over the age of 18...

3.6.7 The available evidence suggests that the ability and willingness of the authorities to protect women from the imposition of FGM is slowly increasing. The number of churches, NGOs and other organisations actively working to protect women and girls from FGM and to end the practice is also steadily increasing. However, the accessibility of such protection is variable, geographically and in terms of the circumstances of individual women. It is easier for women to access protection in areas where FGM is less culturally prevalent...

3.6.9. There are particular concerns for applicants whose FGM claim includes fear of the Mungiki. The Mungiki have been criticised for encouraging, demanding and enforcing FGM practices upon girls and women in its communities, on the grounds that it is a traditional African practice. The Mungiki are known to force their female family members to undergo FGM. There is no evidence to suggest either that the condition of being married is any protection to women, or that single women are at greater risk. FGM may also be forced upon the wives of Mungiki defectors. Anti-FGM legislation provides protection to children and girls below the age of 18; it does not address the protection needs of adult women. However, there are community centres, particularly in the southern areas of the Rift Valley, that now provide sanctuary to young women and girls who have escaped forced FGM...

3.6.10...The authorities actively take measures to prevent FGM, although there have been relatively few prosecutions. Accordingly, those in fear of being forced to seek FGM for their child should be able to seek the protection of the state. Those in fear of undergoing FGM may, in general, seek the protection of the authorities.

3.6.11 Caseowners should consider cases in which there is no Mungiki element within the context of the AIT guidance on internal relocation...In general internal relocation is likely to be a viable option in such cases.

3.6.12 For cases where there is a Mungiki element, caseowners should consider cases on their individual merits...Given the increasing efforts of the Kenyan authorities to crack down on suspected Mungiki members, and also that Kenya has an area of 224,081 square miles, with a population of approximately 40,000,000 people, internal relocation may be feasible in individual cases.”


Violation of Art. 14 and P1-1;No violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in 1966 and lives in the Paris area.

The applicant has been physically disabled since the age of seven. He was adopted by Mr Bernard Poirrez, a French national, under the terms of a judgment of 28 July 1987 of the Bouaké Court of First Instance. On 11 December 1987 the Bobigny tribunal de grande instance granted authority for the judgment to be executed.

In December 1987 the applicant applied for a declaration of French nationality. His application was found inadmissible on the ground that he was over 18 years old when it was submitted. He appealed to the Bobigny tribunal de grande instance, which gave judgment on 15 January 1988 declaring the application inadmissible. That judgment was upheld by the Paris Court of Appeal on 24 June 1993.

In the meantime, the Seine-Saint-Denis Occupational Counselling and Rehabilitation Board (commission technique d'orientation et de reclassement professionnel – “COTOREP”) registered the applicant as 80% disabled and issued him with an invalids' card. In May 1990 he applied to the Family Allowances Office (caisse d'allocations familiales – “CAF”) for the Paris area for an “allowance for disabled adults” (allocation aux adultes handicapés – “AAH”). In support of his application, he stated that he was a French resident of Ivory Coast nationality and the adopted son of a French national residing and working in France. His application was rejected on the ground that, as he was neither a French national nor a national of a country which had entered into a reciprocity agreement with France in respect of the AAH, he did not satisfy the relevant conditions laid down in Article L. 821-1 of the Social Security Code (see paragraph 24 below).

On 13 June 1990 the applicant brought his case before the Friendly Settlements Board of the Family Allowances Office.

In a decision of 6 September 1990, the Board confirmed the CAF's decision on the ground that the applicant did not satisfy the conditions laid down in Article L. 821-1 of the Social Security Code. The authorities noted that the Ivory Coast, of which the applicant was a national, had not signed a reciprocity agreement with France in respect of the AAH.

On 26 February 1991 the applicant lodged an application with the Bobigny Social Security Tribunal for judicial review of the decision rejecting his claim. The applicant and the CAF lodged their pleadings on 26 February and 25 April 1991 respectively.

In a judgment of 12 June 1991, the court decided to stay the proceedings pending the referral of a question to the European Court of Justice (ECJ) for a preliminary ruling. The question was whether the decision not to award the allowance for disabled adults to the applicant, a member of the family (adopted son) of a European Community national resident in the country of which the head of household (the adoptive parent) had the nationality (in accordance with French legislation) was compatible with the European provisions contained in the Treaty establishing the European Economic Community (“the EEC Treaty”). In a judgment of 16 December 1992 the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of the EEC Treaty. It pointed out that the applicant's adoptive father could not claim to be a “migrant worker”, which was the category to which the European provisions in question applied. It based that finding on the fact that the applicant's adoptive father, being French, had always lived and worked in France. The ECJ accordingly concluded that the applicant could not “rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family”. In doing so, it did not examine the question whether the refusal to award the applicant the allowance was, in general, compatible with Community law or not.

The applicant started receiving the minimum welfare benefit (revenu minimum d'insertion – “RMI”) on 17 December 1991.

On 31 March 1993, on the strength of the reply from the ECJ, the Bobigny Social Security Tribunal rejected the application as ill-founded. The applicant appealed against that decision on 27 July 1993. He applied for legal aid on 23 November 1993.

On 14 January 1994 the Legal Aid Office at the Paris tribunal de grande instance rejected the application for legal aid to fund the applicant's appeal on the ground that the request was manifestly ill-founded. On 21 February 1994 the applicant appealed against that decision. In a decision of 5 May 1994 the President of the Legal Aid Office allowed the appeal.

In a judgment of 19 June 1995, the Paris Court of Appeal upheld the decision of 31 March 1993. It referred to the provisions of Article L. 821-1 of the Social Security Code in the wording then applicable and to the lack of a reciprocity agreement between France and the country of the applicant's nationality in respect of the allowance.

On 2 May 1996 the applicant appealed to the Court of Cassation on points of law. The applicant and the CAF lodged their pleadings on 1 August and 21 October 1996 respectively. On 2 June 1997 a reporting judge was appointed. He filed his report on 10 October 1997. A hearing before the Court of Cassation took place on 27 November 1997. In a judgment of 22 January 1998, the Court of Cassation dismissed the appeal lodged by the applicant and worded as follows:

“With regard to the applicant's ground of appeal that '... Article 26 of the Covenant of New York prohibits any discrimination, including on grounds of national origin; that, in refusing to award Mr Koua Poirrez an allowance for disabled adults on grounds of his nationality, the Court of Appeal disregarded the binding nature of that provision, which it subsequently breached by refusing to apply ...' ”

The Court of Cassation ruled as follows:

“Article 26 of the International Covenant of New York of 19 December 1966, which prohibits any discrimination on grounds of national origin, cannot be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional.

After reiterating the terms of Article L. 821-1 of the Social Security Code, which restricts the right to an award of the allowance for disabled adults to French nationals and nationals of a country that has signed a reciprocity agreement, the Court of Appeal properly decided that Mr Koua Poirrez, an Ivory Coast national, could not claim that allowance in the absence of a reciprocity agreement between France and the Ivory Coast. ...”

Following the enactment of the Act of 11 May 1998, which lifted the nationality condition for awards of non-contributory allowances, the applicant reapplied for an allowance for disabled adults from 1 June 1998. His application was rejected by the CAF, whereupon he applied to the Social Security Tribunal again. In a judgment of 11 June 1999 that court declared his application ill-founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the CAF all the documentary evidence of his financial situation. The applicant appealed. According to information provided by the Government and undisputed by the applicant, the COTOREP re-examined the applicant's claim, at the request of the CAF, and awarded him the allowance for the period from June 1998 to November 2000. It is not apparent from the file whether the applicant continued to receive the benefit after that date. In any event, the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn.

The Disabled Persons Act of 30 June 1975 (Law no. 75-534) provides for the benefit of an allowance for disabled adults. Article L. 821-1 of the Social Security Code, as worded prior to the entry into force of the Act of 11 May 1998, provided for the award of this minimum income to any disabled person, subject to the fulfilment of certain conditions:

“Any French national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan France ... who is over the age of entitlement to the special education allowance provided for in Article L. 541-1 and whose permanent disability is at least equal to the percentage determined by decree, shall receive an allowance for disabled adults if they are not eligible for an old-age or invalidity or employment-injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance.”

The Aliens (Conditions of Entry, Residence and Asylum) Act of 11 May 1998 (Law no. 98-349) abolished the nationality condition. Since that Act was passed, any foreign national lawfully resident in France may claim the allowance.

With regard to another benefit, namely the supplementary allowance paid by the National Solidarity Fund, the Court of Cassation has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 (Social Division, judgment of 14 January 1999, published in the Bulletin).

Recommendation No. R (92) 6 on a coherent policy for people with disabilities, adopted by the Committee of Ministers of the Council of Europe on 9 April 1992, cross-refers to its Appendix, which provides, inter alia, as follows:

Aims

All people who are disabled or are in danger of becoming so, regardless of their age and race, and of the nature, origin, degree or severity of their disablement, should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential. Through a coordinated set of measures they should be enabled to:

– have a minimum livelihood, if appropriate by means of social benefits;

General directives

To implement this policy States should take the following steps:

– ensure that people with disabilities enjoy a respectable standard of life, if necessary by means of economic benefits and social services;

Social provisions remain, however, in many spheres an essential means of either activating and supporting self-help or initiating and promoting rehabilitation and integration processes. ...

IX. Social, economic and legal protection

Scope and principles

1.1. In order to avoid or at least to alleviate difficult situations, sidelining and discrimination, to guarantee equal opportunity for people with disabilities, and to develop personal autonomy, economic independence and social integration, they should have the right to economic and social security and to a decent living standard by:

– a minimum livelihood;

– specific allowances; and

– a system of social protection.

1.2. If there is a global system of economic and social protection for the population as a whole, people with disabilities should be able to benefit fully from it, and their specific needs must be taken into consideration. In so far as this does not exist, a specific system must be established for continuous provision for people with disabilities.

1.3. Socio-economic protection must be ensured by financial benefits and social services. This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection.

1.4. Economic protection measures must be considered as one of the elements of the integration process for people with disabilities.

Economic and social security

2.1. In addition to social benefits granted to people with disabilities as well as to other people (for example unemployment benefits), the economic and social security system should grant:

– special benefits in cash or in kind, for people with disabilities, covering rehabilitation and other special needs, such as medical treatment, vocational training, technical aids, access to and adaptation of housing, transport and communication facilities;

– special financial support for families who have a child with a disability;

– adequate assistance, for example installation allowances or investment loans for people with disabilities wishing to become self-employed;

– a minimum livelihood covering their and their families' basic needs and requirements for people with a degree of disablement which prevents them from working;

– benefits for people who need the continuous assistance of another person because of their disablement;

– benefits to people who are unable to seek employment because of care provided to a person with a disability;

– where financial assistance is given up in order to take up employment, this financial assistance should be protected and guaranteed if employment proves unfeasible;

This recommendation also states that “the exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination”.

The European Committee of Social Rights, in Conclusions concerning Article 12 of the Charter in respect of France (15th report, reference period 1997-1998; Conclusions XV-1, vol. 1, p. 262, Council of Europe Publishing, 2000), states as follows:

“The Committee notes that Act no. 98-349 on entry of foreign nationals into France, their residence in the country and the right of asylum brings the French Social Security Code into line with the Social Charter. The reciprocity requirement for awarding the AAH and the FSV supplementary allowances to foreigners had been found in breach of the Charter by the Committee since supervision cycle VI for the former and XIII-2 for the latter. Since this requirement has been lifted – the only condition now applied is that the beneficiary be lawfully resident in France (new Article L 816-1 of the Social Security Code) – nationals of all Contracting Parties are now on an equal footing with French nationals. The Committee considers that the situation is now in conformity with Article 12 para. 4 of the Charter.”


Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses partial award

Mr Öztürk, the applicant, was born in 1957. He is one of the owners of the Yurt Kitap-Yayın publishing house and lives in Ankara.

In October 1988 he published a book by N. Behram entitled A testimony to life – Diary of a death under torture (Hayatın Tanıklığında – İşkencede Ölümün Güncesi). The book gave an account of the life of İbrahim Kaypakkaya, who in 1973 had been one of the founder members of the Communist Party of Turkey – Marxist-Leninist (Türkiye Komünist Partisi – Marksist-Leninist – “the TKP-ML”), an illegal Maoist organisation.

The 111-page book, illustrated by photographs, has 24 chapters, each of which is prefaced by a poem. These poems were written by four Turkish poets, namely the author himself, A. Arif, M. Derviş and A. Kadir, by the Chilean writer P. Neruda and by İbrahim Kaypakkaya.

As the first edition had sold out as soon as it was placed on sale, the book was republished in November 1988.

On 21 December 1988 the public prosecutor at the Ankara National Security Court (“the National Security Court”) instituted criminal proceedings against Mr Behram, the author of the book, and the applicant, its publisher. However, he dealt with the case against Mr Behram separately, having noted that he had not been in Turkey at the material time.

On 23 December 1988, at the request of the public prosecutor, a single judge of the National Security Court made an interim order for the seizure of the copies of the second edition. According to the file, 3,195 copies were seized as a result, including 3,133 at the applicant’s publishing house.

On 5 January 1989 the applicant asked the judge to reconsider the above order; this appeal was dismissed.

On 14 February 1989 the public prosecutor charged the applicant with disseminating communist propaganda in breach of former Article 142 §§ 4 and 6 of the Criminal Code (see paragraph 29 below) and of inciting the people to hatred and hostility on the basis of a distinction between social classes, an offence under Article 312 §§ 2 and 3 of the same Code (see paragraph 30 below).

Referring to İ. Kaypakkaya’s antecedents, the public prosecutor emphasised that at the head of the TKP-ML, a terrorist organisation, he had carried out armed raids with a view to overthrowing the constitutional order of the State in order to set up a communist regime.

In support of his submissions the public prosecutor first drew attention to the description of İ. Kaypakkaya’s father given on the second page of the book: “He was a worker who could not accept that life should flow by in that way, and that sweat, energy and labour should be exploited like that. He was dissatisfied with this state of affairs and wanted that forlorn world to change”. The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism.

The public prosecutor went on to cite the following poems.

“... Ambushes guide me towards my people, vital force of the guerilla war; resistance is a terrible and noble passion, but that is not all; like a mistress, it is in addition hesitant, docile, delicate, deft; we who are masters of patriotism, hope is hidden within us, the immortal standard is red and streams out in the wind ...”

((p. 15) A. Arif, published in January 1974 in the weekly publication Yeni A)

According to the public prosecutor, this poem was to be interpreted in the light of the actions of İ. Kaypakkaya. Seen from that point of view, it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime. In his submission, that amounted to illegal communist propaganda.

“To our dead comrades You, who gave your lives for our people; You, who gave everything in this fight; You, who gave the colour red To the battle standard Which flies proudly in our hearts; You, who died for our immortal people; You, the sublime sons of our people, Rest now with pride and patience, Your comrades are carrying on the fight ...”

((p. 27) İ. Kaypakkaya)

The public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the State’s constitutional regime by force of arms and was intended, particularly in its last phrase, to stir up hatred and hostility.

“... The only light That awoke us Was the light of the world! I went into their houses Where they sat round the table After returning from their work; They laughed or wept And each resembled the others; They turned their faces towards the light, Seeking their way ...”

((p. 30) P. Neruda)

The public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians.

“... They carried out the death sentence; They spattered with blood The blue mist of the mountains and The newly woken morning breeze; Then they came [and put down their] weapons. Carefully feeling our chests, They examined us, Searching everywhere ...”

((p. 35) A. Arif, “Your absence made me wear out chains”, 1968)

The public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them.

Lastly, he noted that the expression “May their virtue be our guide and their memory a light on our way”, which appeared on the very last page of the book, referred to İ. Kaypakkaya and the other terrorists.

Consequently, the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel İ. Kaypakkaya in the book in issue justified both Mr Öztürk’s conviction as the publisher responsible within the meaning of section 16(4) of the Press Act (Law no. 5680 – see paragraph 32 below) and confiscation of the copies of the book pursuant to Article 36 § 1 of the Criminal Code (see paragraph 28 below).

Before the National Security Court the applicant contested the charges, submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures. In addition, his lawyers argued in particular that the passages in issue, reproduced in the indictment, could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the State as constituted at that time, it was the right of every citizen to make such a criticism.

On 30 March 1989 the National Security Court found the applicant guilty as charged.

In its judgment, after stating that it was satisfied “that there [was] no need to ask experts to examine the book, given that its content [could] be understood by anyone on the first reading ...”, the National Security Court accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP-ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility. However, observing that it had considered the content of the book as a whole – in accordance with the case-law of the Court of Cassation – the National Security Court dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book.

Considering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law, the National Security Court held:

“All things considered, the book is intended to glorify and venerate both communism and the terrorist İ. Kaypakkaya ... who was a supporter of communism, and to defend his actions ... Moreover, [the book] expressly incites the people to hatred and hostility on the basis of a distinction between regions, social classes and races.”

The National Security Court sentenced Mr Öztürk to fines of 328,500 and 285,000 Turkish liras (TRL) under Article 142 § 4 and Article 312 § 2 of the Criminal Code respectively (see paragraphs 29 and 30 below) and ordered the book’s confiscation (see paragraph 28 below).

By a judgment of 26 September 1989 the Court of Cassation declared an appeal by the applicant on points of law inadmissible as regards his conviction under Article 312 of the Criminal Code, on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned. However, it set aside the verdict under Article 142 § 4 on the ground that it was unlawful to establish the accused’s guilt merely by referring to the indictment without stating, with reasons, how and in what parts the book was an apologia of communism. It remitted the case on this point to the National Security Court.

On 9 January 1990 the applicant paid the fine of TRL 285,000.

In the judgment it delivered on 28 December 1990 the National Security Court, basing its decision on an expert report on the content of the book, confirmed the sentence it had imposed under Article 142 of the Criminal Code; it also upheld its order for the confiscation of the book.

However, on 1 March 1991 this judgment was likewise quashed by the Court of Cassation, on the ground that the report on which it was based had not been written by experts who had taken the oath. The case was then once again remitted to the National Security Court.

Before the National Security Court the public prosecutor called for Mr Öztürk’s acquittal on the charge of disseminating communist propaganda. He submitted that Article 142 of the Criminal Code, on which the conviction in question had been based, had been repealed by the Prevention of Terrorism Act (Law no. 3713), which had come into force on 12 April 1991.

By a judgment of 11 June 1991 the National Security Court accepted the public prosecutor’s submissions. However, observing that the judgment delivered on 30 March 1989 had become final with regard to the conviction under Article 312 of the Criminal Code (see paragraph 17 above), it noted that the confiscation order remained operative.

It appears from the file that 2,845 confiscated copies of the book were destroyed on 21 April 1992.

On 1 March 1989, that is before the date of Mr Öztürk’s initial conviction (see paragraph 16 above), the public prosecutor charged the book’s author, Mr N. Behram, then living in Germany. The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant (see paragraph 14 above).

By a judgment of 22 May 1991, given in the defendant’s absence, the National Security Court, composed of three judges of whom one had also tried the case of Mr Öztürk, observed firstly that the court was not required to rule on application of Article 142, which had been repealed in the meantime (see paragraph 29 below), then acquitted Mr Behram on the basis of an expert report, in which three professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in Article 312 of the Criminal Code.

In its judgment the National Security Court, emphasising the book’s documentary nature, confined itself to an endorsement of the conclusions of the above-mentioned expert report.

This judgment became final, no appeal on points of law having been lodged.

On 19 September 1991 the applicant, having been informed of Mr Behram’s acquittal, applied to the Minister of Justice asking him to refer the case to the Court of Cassation (Yazılı emir ile bozma – see paragraph 33 below) by means of an appeal against his conviction under Article 312 of the Criminal Code and against the confiscation order (see paragraph 16 above). In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author, whereas both of them had been tried on account of the same book.

Consequently, on 16 January 1992, by order of the Minister of Justice, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) appealed against the judgment delivered on 28 December 1990 in the applicant’s case (see paragraph 19 above), pleading the lack of an explicit decision on what was to be done about the confiscation order.

After the Court of Cassation’s dismissal of the appeal on 27 January 1992 the applicant applied for a second time to the Minister of Justice, submitting that Principal State Counsel had appealed on the wrong grounds.

The Minister of Justice allowed this application and instructed Principal State Counsel to argue that the judgment of 30 March 1989 (see paragraph 16 above) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr Öztürk’s conviction for incitement of the people to hatred and hostility (see paragraph 22 above).

In its judgment of 8 January 1993 the Court of Cassation dismissed the ground of appeal submitted by Principal State Counsel, ruling as follows:

“The defendant was charged with the offences contemplated in Article 142 §§ 4 and 6 and Article 312 §§ 2 and 3 of the Criminal Code. The constituent elements of those offences were different. The acquittal of another accused tried for the same offence cannot be taken as justified and unshakeable evidence that the defendant should also have been acquitted. [In addition] the two accused were tried separately and the judgment acquitting Mustafa Nihat [Behram] became final without any appeal on points of law being lodged. Lastly, there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ...”

At the present time Mr Behram’s book is on open sale. It is published by another publishing house, Altınçağ Yayıncılık, under the different title Biography of a communist (Bir komünistin biyografisi).

Article 36 § 1 of the Criminal Code provides:

“In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...”

The relevant paragraphs of former Article 142 of the Criminal Code, repealed by the Prevention of Terrorism Act (Law no. 3713), provided:

“Harmful propaganda

A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years.

A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years.

A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years.

A person who publicly condones the offences contemplated in the above paragraphs shall, on conviction, be liable to a term of imprisonment of from two to five years.

Where the offences contemplated in the above paragraphs are committed through publication, the penalty to be imposed shall be increased by half.”

Article 311 § 2 and Article 312 of the Criminal Code provide:

“Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …”

“Non-public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

With regard more particularly to application of the above-mentioned Article 312 of the Criminal Code to the publishers of printed matter giving rise to criminal charges, the Government have submitted examples of judgments given by the Court of Cassation and supplied further information which may be summarised as follows.

In connection with offences committed through the medium of printed matter, the “principal” responsibility for the offence defined in Article 312 is incurred by the author of the writing concerned. The publisher’s responsibility is “secondary” and is incurred under section 16(4) of Law no. 5680 (see paragraph 32 below). A publisher facing criminal proceedings is charged with “publishing the writing which constitutes the offence” contemplated in Article 312. However, there are provisions, such as section 8 of the Prevention of Terrorism Act (Law no. 3713), which form a lex specialis making publishers criminally responsible.

The main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that, unlike the position regarding the former, prison sentences imposed on the latter are commuted to a fine, save in those cases where the above-mentioned Law no. 3713 applies.

Section 3 and section 16(4) of Law no. 5680 provide:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author, translator or illustrator of the publication which constitutes the offence, and by the publisher. However, custodial sentences imposed on publishers shall be commuted to a fine, irrespective of the term [of imprisonment] ...”

Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “reference by written order”) provides:

“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to Principal State Counsel requiring him to ask the Court of Cassation to set aside the judgment concerned ...”

With regard to the practice followed under Turkish law for a reference by written order, the Government have submitted the following information.

This form of appeal lies only against judgments given at last instance which are not appealable to the Court of Cassation (see paragraph 17 above) or against which no party has lodged an appeal on points of law. Only Principal State Counsel at the Court of Cassation is empowered to refer a case, and then only on receipt of a formal order to that effect from the Minister of Justice, who may act either of his own motion or at the request of the convicted person. The powers conferred on the Court of Cassation when it deals with such an appeal are “extraordinary”; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person. If the appeal succeeds, the Court of Cassation will normally, in the judgment delivered as a result, set aside the conviction or reduce the sentence; in the latter case, it will also determine what length of sentence must be served.

The Government have supplied, by way of example, a number of judgments given by the Court of Cassation concerning the way courts of trial have assessed writings and/or speech that have given rise to prosecutions, particularly for offences defined in former Article 142 and Article 312 of the Criminal Code (see paragraphs 29 and 30 above) and the offence contemplated in section 8 of the Prevention of Terrorism Act (Law no. 3713). These were judgments nos. 1991/18, 1994/240 and 1995/98, given by the plenary Court of Cassation, and judgments nos. 1974/2, 1978/4806, 1985/1682, 1989/2439, 1993/664, 1993/1066, 1993/1388, 1994/6080, 1996/4387 and 1996/8450, given by its Criminal Divisions.

One principle which emerges from this case-law is that the first-instance judgment must be based on an assessment of the whole of the writing and/or speech in issue. As regards assessment of the material constituting the offence defined in Article 312 of the Criminal Code, the Court of Cassation has made it clear, particularly in the above-mentioned judgment no. 1974/2, that the offence of “incitement” consists in an act “capable of endangering public safety and public order” irrespective of whether the incitement has actually produced that result. In addition, in judgment no. 1994/6080, in setting aside a conviction under Article 312, the Court of Cassation would appear to have confined itself to noting the “remote” nature of the danger posed by the “incitement” in issue. Moreover, as regards the imposition of heavier sentences on account of aggravating circumstances, the Court of Cassation has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public. Lastly, in one of these cases, the Court of Cassation stressed the extreme importance – for the protection of the right to a fair trial – of the rule that the accused must always have the opportunity to speak last, before the judges rule.


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

The following facts were established in the principal judgment:

“38. According to the applicant's representative before the Court, the applicant had been refused permission to be represented by his privately retained counsel but legal-aid counsel had been appointed instead. Neither the applicant's representative nor his family members had been informed of the exact place of his detention in Uzbekistan.

The applicant's representative before the Court wrote to the Uzbek Prosecutor General's Office asking for information regarding the place of the applicant's detention and the conditions of access to him. Her request was forwarded to the prosecutor in the Surkhandaryinsk Region of Uzbekistan. On 17 January 2007 the prosecutor forwarded the request to the Surkhandaryinsk Regional Court. The applicant's representative also wrote to the Uzbek Ministry of the Interior and the Ministry of Foreign Affairs. No replies were received.

On an unspecified date, the Russian authorities sent a request concerning the applicant to the Uzbek authorities. On 6 March 2007 the Uzbek Ministry of the Interior replied and enclosed a letter in Russian from the applicant dated 20 December 2006 worded as follows:

“... during my arrest and detention ... the police and other law-enforcement officers did not violate my rights and did not exert any physical pressure upon me.

I have no claims against the police officers in Moscow or Lipetsk or against any other law-enforcement authority in Russia.

I confirm that this declaration is correct and written with my own hand.”

According to a linguistic expert report, produced by the applicant's representative, the above letter did not contain any significant mistakes, whereas the applicant's personal letters contained numerous mistakes reflecting his Uzbek mother tongue's phonetics and grammar. The expert noted that the applicant would not have been able to acquire a sufficient command of the Russian language during the three months between the date of his sample letters (September 2006) and the letter in question (December 2006). The expert concluded that the letter of 20 December 2006 had not been written spontaneously by the applicant, who had transcribed the text from the original or written it from a letter-by-letter dictation by someone else.”

Following the adoption of the principal judgment by the Court, by a letter of 9 July 2009 the Prosecutor General's Office of the Russian Federation replied to a request from the applicant's representative before the Court. The Prosecutor General's Office stated that all matters relating to the execution by the applicant of the prison term imposed by an Uzbek court in 2007 were within the exclusive competence of the Uzbek authorities; the applicant's representative thus had to apply directly to those authorities.

By a letter of 17 July 2009, the Office of the Representative of the Russian Federation at the European Court of Human Rights indicated to the applicant's representative that any correspondence between the national authorities and the applicant's representative on procedural matters should be carried out through the European Court. Thus, the representative was directed to address all her queries to the Court.


Preliminary objection allowed (exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1965 and lives in Kysucké Nové Mesto. He is a self-employed food products wholesaler.

In May 1993 an article was published in several papers about a salmonella epidemic suggesting that it had had its origin in dried milk which had been produced by the applicant.

On 4 August 1993 the applicant brought an action in the Čadca District Court (Okresný súd) for protection of personal integrity against four publishers, the Slovakian Press Agency, two of his business partners and a research institute. He claimed that the published information was untrue in so far as it concerned him and that it caused damage to his business interests. He sought compensation in the amount of 180,000 Slovakian korunas (SKK).

On 9 August 1993 the District Court held a hearing following which, on the same day, it decided to transfer the case to the Banská Bystrica Regional Court (Krajský súd) for reasons of jurisdiction.

On 20 October 1993 the applicant submitted correct addresses for two of the defendants. The decision to transfer the case was then served on these defendants and became final on 24 February 1994.

On 9 March 1994 the Regional Court requested that the applicant pay court fees which he did on 5 April 1994.

The Regional Court subsequently sought the defendants’ observations in reply and, on 9 May 1994, the applicant withdrew his claim in respect of one of them.

On 27 June 1994 the Regional Court held a hearing which was adjourned with a view to obtaining further information including a case file with the Považská Bystrica District Court in a criminal case.

On 21 September 1994 the applicant extended the action in that he requested that an apology be published and that he be paid SKK 1 million in damages.

On 29 September 1994 the Regional Court requested the applicant to pay court fees for his extended claim, which he did on 4 October 1994.

On 6 October 1994 the Považská Bystrica District Court requested that the above-mentioned criminal file be returned to it because it was needed in connection with a different criminal case. The Regional Court returned the case file on 10 November 1994 but requested that it be given back as soon as possible since it was still needed in connection with the applicant’s case. The Regional Court reiterated the request on 8 February 1995 and, in response, it was informed that the case file in question was in fact with the criminal division of the Regional Court on appeal in the second of the criminal cases mentioned above.

Between 2 June 1995 and 5 June 1996 the Regional Court held 4 hearings 3 of which were adjourned in order to obtain further evidence. On each occasion 3 or more of the defendants had been absent.

In the meantime, on 14 December 1995 the Regional Court decided to return a part of the court fees to the applicant on the ground that he had reduced the scope of his claim for damages to SKK 500,000.

On 7 June 1996 the Regional Court delivered a judgment ordering one of the defendants to pay the applicant SKK 90,000, dismissing the action in respect of four defendants and discontinuing the proceedings in respect of the remaining two defendants.

Both the applicant and the defendant who had been ordered to pay damages appealed on the ground that the operative part of the written judgment did not correspond to the judgment which the court had given orally.

On 14 November 1996 the Regional Court ordered the applicant to pay the court fees for his appeal and, on 10 February 1998, it delivered two separate decisions by which it corrected errors in the costs order and in the judgment of 7 June 1996.

On 23 December 1998 the Supreme Court quashed the judgment of 7 June 1996 as being incomprehensible and lacking adequate reasons, which made it impossible to review it. The Supreme Court observed that the rectification decision of 10 February 1998 had changed the substance of the contested judgment, which was procedurally impermissible. The case was remitted to the Regional Court for re-examination.

The applicant then withdrew the action in so far as it concerned 5 of the defendants and maintained it in respect of 2 defendants.

On 20 September 1999 the Regional Court held a hearing following which, on the same day, it ordered each of the remaining defendants to pay the applicant SKK 50,000 in damages and dismissed the remainder of his claim. The applicant and one of the defendants appealed.

On 3 May 2000 the Regional Court dismissed the applicant’s petition for an exemption from the obligation to pay court fees for his appeal.

On 19 December 2000 the Supreme Court quashed both the judgment of 20 September 1999 and the decision of 3 May 2000 on court fees. It held that the Regional Court had failed to give comprehensible reasons for the amount of damages to be paid to the applicant and that it had failed to establish adequately the facts relevant for the decision on court fees.

On 28 September 2001 and 14 January 2002 the Regional Court held hearings. Following the latter hearing, on the same day it exempted the applicant from the obligation to pay court fees, ordered one of the defendants to pay the applicant SKK 10,000 in damages and dismissed the remainder of the claim. The parties waived their right of appeal and the judgment became final and binding on 6 February 2002.

On 12 February 2003 the applicant complained of the length of the proceedings to the Constitutional Court (Ústavný súd) under Article 127 of the Constitution.

On 26 February 2003 the Constitutional Court rejected the complaint as having been lodged after the expiry of the twomonth time-limit laid down in the Constitutional Court Act.