Remainder inadmissible;No violation of Art. 5-1

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in 1955 and is currently detained in Aachen Prison.

Between 1978 and 1981 the applicant was convicted, among other offences, of numerous counts of joint burglary committed in companies and shops and was imprisoned from March 1980 until February 1985.

In 1986 the Dortmund Regional Court convicted the applicant of trafficking in drugs (hashish and cocaine) and sentenced him to eight years’ imprisonment. The applicant was in pre-trial detention and served his sentence from August 1985 until June 1993.

In December 1996 the applicant was arrested and placed in pre-trial detention on suspicion of drug trafficking; he has remained in prison since then.

In a judgment dated 9 February 1998 the Aachen Regional Court convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in 1996 and involving some 280 kilos of hashish. It sentenced him to eight years and six months’ imprisonment. It decided not to order the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraphs 22-23 below) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences. In this assessment, the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking. The applicant claimed that he had struck a deal with the Regional Court on the latter’s proposal that the court would impose a sentence of less than ten years and would not order his preventive detention if he ceased to contest the court’s finding of fact. The Government submitted that there was no indication in the case-file that such an agreement had been made.

In a judgment dated 7 April 1999 the Federal Court of Justice dismissed an appeal by the applicant on points of law. It allowed an appeal by the prosecution regarding the Regional Court’s decision not to order the applicant’s preventive detention and quashed the judgment in this respect as the Regional Court had not given valid reasons for considering the applicant not to be dangerous to the public.

In a judgment dated 14 November 2001 a different chamber of the Aachen Regional Court ordered the applicant’s (first) indefinite preventive detention pursuant to Article 66 § 1 of the Criminal Code. Having consulted a psychiatric expert and having regard to the applicant’s personality and his previous convictions, the court considered that the applicant had a disposition to commit serious offences, was likely to commit further serious drug offences and was thus dangerous to the public.

In a decision dated 31 May 2002 the Federal Court of Justice dismissed as ill-founded an appeal by the applicant on points of law, in which the latter had complained that provisions of substantive law had not been complied with (allgemeine Sachrüge).

On 24 June 2002 the applicant, without being represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the two judgments of the Regional Court and the judgment and the decision of the Federal Court of Justice. He complained, in particular, that preventive detention was incompatible with his right to liberty under Article 5 § 1 of the Convention, which did not cover such a preventive measure. It further violated the prohibition of retrospective punishment under the Basic Law and Article 7 of the Convention because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of ten years, which had been the maximum penalty at the time he committed his offences. Furthermore, his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with the Regional Court that he would not further contest the court’s finding of facts in exchange for the court not ordering his preventive detention.

On 11 March 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1046/02). The Federal Constitutional Court found that in so far as the applicant complained about the judgment of the Regional Court of 9 February 1998 and that of the Federal Court of Justice of 7 April 1999, he had lodged his constitutional complaint out of time. In so far as the applicant complained that the Regional Court’s order for his preventive detention in its judgment of 14 November 2001 lacked a valid legal basis and was arbitrary, his complaint was inadmissible for non-exhaustion of domestic remedies. The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by the Regional Court to him before the Federal Court of Justice, at least by complaining that provisions of substantive law had not been complied with.

On 13 July 2007 the Bochum Regional Court, acting as the court dealing with the execution of sentences, having heard the applicant in person, ordered the applicant’s placement in preventive detention as of 25 July 2007 (Article 67c § 1 of the Criminal Code; see paragraph 24 below), that is, as from the day on which the applicant would have served his full prison sentence. The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant’s dangerousness. In his report dated 7 May 2007 the expert, having examined the applicant, had considered that, if released, the applicant was very likely to commit further serious offences similar to those he had previously committed. He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences. Even assuming that the security measures taken against him by the prison authorities had not been justified, this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release.

On 6 September 2007 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.

On 24 January 2008 the Hamm Court of Appeal rejected an objection (Gegenvorstellung) by the applicant.

On 17 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Regional Court’s decision of 13 July 2007 and the Court of Appeal’s decision of 6 September 2007. By submissions dated 3 March 2008 he extended his complaint to the Hamm Court of Appeal’s decision of 24 January 2008. He claimed, in particular, that the order to place him in preventive detention disproportionately interfered with his right to liberty. He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form, that the courts had failed to give convincing reasons, in view of his mostly less serious previous convictions, why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons.

On 14 July 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2356/07). It found, in particular, that the decisions of the courts dealing with the execution of sentences to order the applicant’s placement in preventive detention had not violated the applicant’s right to liberty. The Federal Constitutional Court found that the Regional Court’s assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to one term of eight years’ imprisonment and another of eight years and six months. The expert report, which was of recent date, was sufficiently substantiated. In so far as the applicant had been refused relaxations in the conditions of his detention, the Constitutional Court noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations. If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future, the applicant had to raise this issue with the competent lower courts first. In view of the courts’ assessment that the applicant was likely to commit further serious offences if released, their finding that the interest in public safety prevailed over the applicant’s right to liberty had been proportionate.

On 12 August 2009 the Aachen Regional Court, acting as the court dealing with the execution of sentences, refused to suspend the execution of the preventive detention order against the applicant on probation. That decision was confirmed on appeal.

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:

The sentencing court may, at the time of the offender’s conviction, order his preventive detention, a socalled measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).

In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).

Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct commences with suspension.

Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.

Under the well-established case-law of the Federal Constitutional Court, a complainant is obliged to submit to that court, within the onemonth time-limit running from the notification of the impugned court decision, either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality (see, inter alia, the decisions of the Federal Constitutional Court of 16 December 1992, file no. 1 BvR 167/87, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 88 (1993), pp. 40 ss., 45; of 10 October 1995, file nos. 1 BvR 1476, 1980/91 and 102, 221/92, Collection of the decisions of the Federal Constitutional Court, vol. 93 (1996), pp. 266 ss., 288; confirmed, for instance, by a decision of 18 March 2009, file no. 2 BvR 1350/08). No distinction was made in these decisions between complainants who were and those who were not represented by counsel.

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 25-26 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).


George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant, A.L.F., is a British national, who was born in 1963 and lives in Birmingham.

On 18 October 2004 the applicant was convicted by a jury of four offences of indecent assault and two offences of rape involving oral and anal sex with his nephew. He was sentenced to seven years’ imprisonment. Permission to appeal was refused in January 2006.

On 9 January 2007 the applicant submitted an application to the Criminal Cases Review Commission (“CCRC”). On 12 June 2007 the CCRC referred his case back to the Court of Appeal on the ground that fresh evidence of a singular genital abnormality from which the applicant suffered had not been properly the subject matter of challenge by way of crossexamination of the complainant at trial.

On 15 December 2009 the Court of Appeal (Criminal Division) (“CACD”) upheld the applicant’s appeal against conviction. It noted that photographs and a medical report confirmed that the applicant suffered from a condition which caused a substantial degree of curvature of his penis; and that this condition had existed since birth. The applicant’s counsel at trial had been aware of his condition, although the medical report had not been available at that time. He had asked the complainant during crossexamination at trial whether he had noticed anything unusual in the applicant’s genitalia, to which the complainant had replied, “No”. In response to the follow-up question, “Nothing at all?”, the complainant had again replied, “No”. Counsel had subsequently failed to put to the complainant that if he was telling the truth he could not have failed to observe the unusual curvature of the applicant’s penis. The CACD was unable to see any rational tactical basis for counsel’s failure to adduce this evidence at trial. It therefore quashed the applicant’s convictions on the basis that they were unsafe, explaining:

“18. ... [H]ad the evidence been adduced, it would have significantly undermined what the complainant said, since without some further explanation from him it is difficult if not impossible to see how he did not notice the condition of the appellant’s penis ...”

However, it added:

“19. We underline that we have not heard from the complainant and our conclusion, since we have not done so, has no element of criticism of him. We are not finding that he did not tell the truth, we are merely concluding that in the light of the evidence now before us, this would have had a significant effect on the course of the trial, on the judgment of the jury and thus upon the safety of the verdicts.”

By the time of the CACD’s judgment, the applicant had already been released, having served his sentence.

In March 2010 the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”). His claim was suspended pending the judgment of the Supreme Court in R (Adams) v. Secretary of State for Justice ([2011] UKSC 18). The judgment in R (Adams) was delivered on 11 May 2011.

By letter dated 25 July 2011 the applicant’s solicitors were informed of the Secretary of State’s decision that the applicant was not entitled to compensation. The letter explained:

“The case of R (Adams) ... has been considered in this context.

In that judgment the majority of the Supreme Court set out its interpretation of the term ‘miscarriage of justice’ as follows...:

‘A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it.’

In the light of that judgment, if the new or newly discovered fact which formed the basis of the reversal of the applicant’s conviction does not show beyond reasonable doubt that he was innocent of the offence of which he was convicted (which would amount to a miscarriage of justice for the purposes of the Act), compensation is payable only if that fact so undermines the evidence against him that it is beyond reasonable doubt that no conviction could possibly be based upon it. This is a demanding test.”

The letter indicated that the Secretary of State had considered the CACD judgment in the applicant’s case and had concluded that this test had not been met. There was no suggestion in the judgment of the CACD that a new or newly discovered fact demonstrated beyond reasonable doubt that there was insufficient evidence upon which the court could convict. The Secretary of State explained:

“... It cannot be said how the complainant would have dealt with the evidence of [A.F.’s] anatomy if it had been put to him. Nor is it possible to determine the effect of the complainant’s reaction to the evidence, or how the jury would have considered it. It is quite possible that the jury may have made the same decision despite the putative new fact that undermined certain elements of the evidence.”

On 19 October 2011 the applicant requested reconsideration of the decision. On 20 January 2012, his request was refused.

On 26 July 2013 the applicant’s Member of Parliament wrote to the Secretary of State for Justice on behalf of the applicant regarding his application for compensation. He submitted that the applicant’s claim should have been accepted on the basis, inter alia, that his prosecution should not have been brought.

By letter dated 20 August 2013 the Minister of State replied in the following terms:

“... I cannot comment on why the decision was taken to prosecute your constituent. However, there is no suggestion in the Court of Appeal’s decision to overturn your constituent’s conviction dated 15 December 2009 that the prosecution had been improper. Indeed, although finding that the conviction was unsafe, the Court at paragraph 10 of its judgment plainly considered that the complainant’s evidence was capable of going to a jury ...”

In these circumstances there was no basis for reconsidering the decision to refuse compensation.

Details of the relevant domestic law and practice are set out in the judgment of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013 and the Chamber decision in Adams v. the United Kingdom (dec.), no. 70601/11, 12 November 2013.


MARTI AG, CELLERE AG, GEBR. BRUN AG and STUAG AG v. SWITZERLAND

The applicants are four companies involved in building and construction works and registered in Switzerland. Before the Court they are represented by Mr E. Rüegg, a layer practising in Baden (Switzerland).

A.

The Official Journal (Kantonsblatt) of the Canton of Lucerne published on 24 February 1996 an invitation for tenders by the Building Department (Baudepartement) of the Canton of Lucerne in respect of “preparatory work on the N2/6 [motorway] extension constructions for the north feeder”. In the same issue, a further invitation for tenders was published by the Kriens municipality in respect of “canalisation and water construction works to be constructed in connection with the N2 extension works for the north feeder”. The date for submitting the tenders was fixed for 25 March 1996. Offers had to state any construction works to be outsourced to other companies.

The applicants submitted three tenders, i.e. for the construction of the north feeder, the canalisation and the water construction works.

On 27 March 1996 the tenders were examined by the authorities. The applicants were not awarded any construction works. According to notes prepared by representatives of the applicants present upon the occasion, the tenders had been as follows:

in respect of the north feeder: of the three tenders made, A. AG had offered a lower and L. AG a higher price than the applicants;

in respect of the canalisation and water construction works: of the two tenders made, A. AG had offered a lower price than the applicants.

Shortly afterwards a meeting was held between the administration and the applicants at which it apparently transpired that A. AG was not in fact in a position to undertake the entire construction works itself and that L. AG eventually rose to the second position of bidders in view of an alleged calculation error of 400,000 Swiss Francs in their tender.

As a result, the applicants, pursuant to Section 6 of the Tenders Act (Submissionsgesetz, see below, Relevant domestic law) filed a complaint with the Government (Regierungsrat) of the Canton of Lucerne. They maintained that there had been procedural defects and breaches of the Tenders Act, inter alia, in that A. AG, in its tender, had omitted to specify which constructions would be outsourced to other companies; and that the tender of L. AG contained elements of unfair competition.

The Government of the Canton of Lucerne dismissed the complaint on 14 June 1996, pointing out that the award had found that A. AG would be in a position to undertake substantial parts of the construction works itself, and that the tender of L. AG had contained an error in that one particular price had been multiplied by 100.

The applicants filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Administrative Court (Verwaltungsgericht) of the Canton of Lucerne in which they complained that they had not had access to a court within the meaning of Article 6 § 1 of the Convention. They further complained that they had not been able to consult the case-file and that the law had been incorrectly applied.

On 16 July 1996 the Court found that it had no jurisdiction to entertain the appeal. In particular, Article 6 of the Convention was inapplicable as the applicants had not demonstrated the existence of a “right” within the meaning of that Article.

The applicants’ further administrative law appeal was dismissed by the Federal Court (Bundesgericht) on 12 November 1996, the decision being served on 22 November.

In its decision, that court found that the applicants had no standing in view of its constant case-law according to which decisions on tenders did not concern legally protected rights, as would be required when filing an administrative law appeal. In respect of the applicants’ complaint about lack of access to a court within the meaning of Article 6 § 1 of the Convention, the court considered that this provision did not itself grant new substantive rights but was applicable only if a “right” arose under domestic law. No such right existed if it could not be claimed before a court. The court then referred to Sections 18 and 19 of the Ordinance (Verordnung) completing the Tenders Act (see below, Relevant domestic law). These provisions envisaged, in principle, that tenders with lower prices would prevail, though, according to Section 18 § 2 of the Ordinance, the lowest offer is not always the cheapest. As a result, domestic law did not grant a “right” to be awarded a particular offer upon tender, for which reason Article 6 § 1 of the Convention was not applicable.

B. Relevant domestic law

The 1973 Tenders Act (Submissionsgesetz) of the Canton of Lucerne deals with invitations for tenders and with the award of construction works by the Canton of Lucerne and its municipalities. Section 3 determines that construction works shall as a rule be awarded following a competitive invitation for tenders. Section 6 provides for an appeal to the Government (Regierungsrat) for those applicants whose personal interests worthy of protection are at issue (in ihren persönlichen schützenswerten Interessen beeinträchtigt).

The Ordinance (Verordnung) completing the Tenders Act provides, insofar as relevant:

“Section 18 Principles governing award. (a) General

Construction works and supplies are to be awarded, based on the principle of economy, to the candidate who has made the cheapest offer (günstigstes Angebot).

The cheapest offer will be the one with the lowest price (tiefster Preis) as long as the implementation of the construction works or supplies corresponds to the substantive requirements and the time-limit. The lowest tender (niedrigstes Angebot) will not, therefore, always be the cheapest.

Section 19 (b) In case of equal or similar tenders

In case of equal or similar tenders, the following criteria shall be considered:

(a) proof of good performance;

(b) variety among the candidates;

(c) degree of employment when implementing the construction works;

(d) tax domicile in the Canton of Lucerne or in the municipality concerned;

(e) payment of taxes in the Canton of Lucerne or in the municipality concerned;

(f) use of local construction materials and products;

(g) professional qualifications of the head of enterprise (e.g. master craftsman) and of the employees;

(h) training of apprentices;

(i) securing and maintaining employment in the Canton of Lucerne or the municipalities concerned.

The order of relevance when employing the criteria mentioned in § 1 shall be determined by the awarding authority individually and according to the situation concerned, in particular in the light of the economic situation.”

According to Section 22 of the Ordinance, the authority concerned is not obliged to give reasons to candidates whose tender has not been considered.

Meanwhile, Section 9 of the Federal Act on a Common Market (Binnenmarktgesetz) provides for an appeal to a court in case of alleged restricted access to the common market, but this provision entered into force only on 1 July 1998.


Violation of Art. 6-1;Violation of Art. 13

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in 1971, 1962, 1966 and 1965 respectively. The second applicant is currently detained in Plovdiv Prison. The third applicant lives in Nicosia, Cyprus. The remaining applicants live in the village of Stryama in Bulgaria.

On 6 and 12 May 1992 the police in Rakovski opened two investigations into several thefts of sheep and goats. Between 13 and 19 May 1992 the applicants submitted written explanations admitting to having committed the thefts.

The proceedings remained dormant until January 2002 when a police investigator questioned several witnesses and commissioned two expert reports concerning the value of the stolen animals. Between 21 and 24 January 2002 the investigator brought charges against the four applicants.

On 15 March 2002 the first and third applicants were questioned before a judge.

In November 2003 the investigation was concluded and on 8 December 2003 the applicants were indicted for theft. On 1 June 2004 they entered into a plea agreement with the prosecution, accepting short suspended sentences. At a hearing held on the same day the Plovdiv District Court affirmed the agreement and discontinued the proceedings. Its decision was final.


Remainder inadmissible;No violation of Art. 6-1

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1944 and lives in Merthyr Tydfil.

In the early evening of 9 December 1997, the applicant went to visit his mother at her house in Merthyr Tydfil but could not park his car because of obstruction by other vehicles. He went into his mother's house having been unable to alert the owners of other vehicles by sounding his horn. He decided to telephone the police to complain about the obstruction and his mother tried to stop him. At some stage, someone contacted the police and they arrived at the house some minutes later.

There is a dispute about what occurred subsequently. The applicant was arrested inside his mother's house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside the house into the street. The police claimed that at that stage, they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section 136(1) of the Mental Health Act 1983 (“the 1983 Act” – see paragraphs 33-36 below).

The applicant was taken to St Tydfil's hospital, less than a mile away from his mother's home, where he was detained pursuant to section 136(2) of the 1983 Act and, subsequently, section 2 of the 1983 Act until 18 December 1997, when his release was ordered by a mental health review tribunal.

On 5 August 2003, the applicant's then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant's detention under section 136.

On 8 December 2003, the eve of the expiry of the relevant limitation period (see paragraph 37 below), the applicant (who was by then no longer legally represented) issued proceedings in the County Court seeking damages from the Chief Constable of South Wales Police for “trespass, assault, wrongful arrest, misuse of police powers, misuse of section 136 of the 1983 Act, falsehood and personal injuries sustained” as a result of the events of 9 December 1997. His particulars of claim indicated that:

“At the time of the incident on 9/12/97 at my mother's house the police at no time inform[ed] me of any arrest or that I was to be detained pursuant to Section 136 of the Mental Health Act, 1983. I am aware that the police can only use Section 136 to detain persons found in public places provided that the person to be detained appears to the police constable to have a mental disorder and to be in immediate need of care or control and such that it be necessary to take the person to a place of safety for the protection of the person detained or for the protection of others. At no stage did the police find me in a public place, on the contrary I was taken from a private dwelling by the police to a public place and at no time could my conduct be construed or considered as that of a mentally-disordered person. Therefore the use of Section 136 of the Mental Health Act was unlawful.”

Under section 139(2) of the 1983 Act, the leave of the High Court was required prior to the commencement of any claim relating to the exercise of powers under that Act (see paragraph 34 below). The applicant failed to seek High Court leave before commencing his claim.

On 4 May 2004, the respondent filed both a defence to the claim on the grounds of section 139(1) of the 1983 Act (see paragraph 34 below) relying on the absence of allegations of bad faith or failure to take reasonable care and an application for the claim to be struck out on the grounds that leave from the High Court, as required under section 139(2), had not been obtained prior to the proceedings being brought. The respondent further argued that the claims in defamation and falsehood were time-barred pursuant to section 4A of the Limitation Act 1980 (“the 1980 Act” – see paragraph 38 below).

On 5 July 2004, the County Court ordered that the claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by the High Court. The claim in defamation and malicious falsehood was struck out by consent as the relevant limitation period had expired in respect of such claims.

On 27 August 2004, permission to appeal the decision to strike out the claim was granted.

On 18 October 2004, the Circuit Judge varied the order of the County Court. He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under the 1983 Act. In relation to the applicant's complaints regarding his detention under the 1983 Act, however, the Circuit Judge dismissed the applicant's appeal, finding the legal proceedings in that regard to be a nullity as a result of the failure to obtain prior leave.

In handing down his judgment, he noted:

“I did consider at one stage whether it would be open to Mr. Seal simply to make an application to the High Court for the permission required by section 139 of the Mental Health Act and then simply apply under the provisions of the [Civil Procedure Rules] ... to add the further claim. However, the defendant will raise the Limitation Act defence.”

The applicant was granted leave to appeal to the Court of Appeal.

Before the Court of Appeal, the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under the 1983 Act until the necessary leave had been obtained. On 19 May 2005, the Court of Appeal dismissed the applicant's appeal. Leave to appeal to the House of Lords was granted.

The argument before the House of Lords focussed on the consequences in terms of section 139(2) of the 1983 Act of bringing proceedings without prior leave from the High Court. The respondent argued that such a failure rendered the proceedings a nullity. The applicant, on the other hand, argued that lack of leave was a procedural irregularity which could be corrected.

On 4 July 2007, the House of Lords handed down its judgment and, by a majority of three to two, dismissed the applicant's appeal.

Lord Bingham of Cornhill, of the majority, considered the applicant's argument that section 139(2) infringed his right of access to court but concluded that this was not an argument that he could accept. He noted (at paragraph 20):

“The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones [1986] QB 296. An applicant with an arguable case will be granted leave. Mr Seal's undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213.”

Similarly, Lord Brown of Eaton-under-Heywood considered that Parliament had made it clear under section 139 that relevant proceedings brought without leave were a nullity.

“ 73. It seems to me quite evident from the legislative history of this provision that from 1930 onwards Parliament intended to make leave a precondition of any effective proceedings. Unlike the position prior to 1930, the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a High Court judge. Absent such leave, albeit he might be notified of a claimant's proposal to proceed against him, he was not to be troubled by such proceedings. The very inflexibility of the provision was an integral part of the protection it afforded. If, however, the [applicant's] approach were to be adopted, inevitably (unless by chance the court took the point of its own motion) the defendant himself would be drawn into the litigation.

... I repeat, the requirement for leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued. And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide. Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation. Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, been extensively debated over recent years. But your Lordships' task is not to decide whether it is desirable but whether presently the legislation confers it.”

As to the Article 6 argument advanced by the applicant, Lord Brown said (at paragraph 75):

“To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful. Such an approach cannot sensibly be seen (as Baroness Hale suggests) 'to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant'. Nor can it be seen to have 'an effect out of all proportion to the aim which it is attempting to pursue.' Of course, in a rare case (perhaps such as this one) a combination of circumstances—ignorance of the law (ie of section 139(2)), the delay in the issue of proceedings until the very end of the six year limitation period, and the inflexibility of section 2 of the Limitation Act 1980 itself (assuming the defendant chooses to take the Limitation Act defence) will operate to deprive the prospective claimant of his claim. But that, of course, is equally so in the case of a litigant in person ignorant of the six year limitation period itself. In each case the loss of the claim is the price paid for certainty—just as there is a price to be paid for the established principle (and the assurance it provides) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to article 6 and it seems to me unsurprising that the point was not even taken in the courts below.”

Baroness Hale of Richmond, dissenting, noted at the outset of her opinion (at paragraph 38):

“The question is one of statutory construction. Despite the antiquity of this provision, which dates back to the Mental Treatment Act 1930, the question has never arisen directly before. But it concerns a fundamental constitutional right – the right of access to the courts. It also concerns the exercise of that right by a peculiarly vulnerable group of people – people who are or have been the subject of compulsory detention under the Mental Health Act 1983. The courts here – and in Strasbourg – have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints: see particularly Golder v United Kingdom (1975) 1 EHRR 524 in Strasbourg and R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 in the United Kingdom. The courts should be no less vigilant to safeguard the rights of mental patients, most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims.”

She continued:

“41. I approach the task of construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived of access to the courts, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant.

The express words are:

'No civil proceedings shall be brought ... in respect of any such act without the leave of the High Court; ...'

These words say nothing about what is to be the consequence if, through ignorance or error, proceedings are in fact started without leave ...”

“49. Nowhere ... is there any discussion of the consequence if proceedings are brought without first obtaining leave. The purpose was and remains the protection of staff. But protection from what? It cannot have been intended or expected that staff would be protected from all knowledge of possible claims. The 1930 Act had expressly required that notice of an application for leave be given to the proposed defendant. Good practice and common courtesy, then as now, would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave. What staff are protected from is having to defend a baseless action. Such protection is not undermined if an action is, whether through ignorance or inadvertence, begun without leave and the defendant takes the point or the court takes it of its own motion. The burden is still on the claimant to establish that the case should go further.”

She concluded (at paragraphs 53-54) that:

“If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant. If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred. The fact that leave is required at all may not emerge until a relatively late stage in the proceedings. That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no-one noticed at the time is an affront to justice.

My Lords, I would not interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language so to do. The statutory language makes it clear that if anyone, including the claimant, appreciates the point, then leave must be obtained. It does not make it clear that if no-one, including the court or the defendant, does so, the proceedings are a nullity. Halfway houses are usually to be preferred to absolute extremes.”

Considering Article 6 § 1 and the jurisprudence of this Court, Baroness Hale noted:

“57. To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. This is not only empirically unproven. It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever. On the one hand, therefore, section 139(2) goes too far. On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself. If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection.

This case is an excellent illustration. The police case is that Mr Seal was first arrested inside his mother's home for a breach of the peace. Having been taken outside he was then detained under section 136(1) of the 1983 Act:

Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest.

Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends. There will be cases in which the operation of section 139(2) is proportionate. There will be other cases, quite possibly including this, in which it is not. Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. If section 139(2) has the effect that proceedings are always a compete nullity, thus depriving a claimant of a good claim, that is an effect out of all proportion to the aim which it is attempting to pursue. Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response.”

In the applicant's case, she concluded that the appeal should be allowed, noting (at paragraphs 60-61):

“ The police may well have an answer to Mr Seal's claim. But their case is not without difficulty. If he was 'removed' under section 136 of the Mental Health Act from his mother's home, he cannot have been 'found in a place to which the public have access'. If he was arrested in her home for a breach of the peace, and then 'removed' under section 136 after they had taken him outside, can it be said that they 'found' him there? (To say otherwise would deprive section 136 of much of its usefulness when an arrested person is later discovered to have a mental disorder.) These are questions which deserve to be addressed at the trial of the claim. By no stretch of the imagination is this vexatious. It may not be worth a great deal of money but that is not the point.

Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. I do not believe that Parliament ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain the High Court's leave in time. Defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims. But if that was Parliament's intention, it is an irrational and disproportionate interference in the Convention right to access to justice. There is no problem in reading down section 139(2) to cure that because there is nothing there to prevent it. However, the best solution would be to remove the procedural requirement altogether, as proposed in Clause 298 of the Draft Mental Health Bill proposed by the Department of Health in 2004 (2004, Cm 6305-1). The Mental Health Bill currently before Parliament, provides such an opportunity.”

Also dissenting, Lord Woolf accepted that it was not desirable to leave it until the limitation period had

Following the conclusion of the proceedings in the House of Lords, the applicant did not continue with the remainder of his claim (see paragraphs 12, 15 and 17 above) in the County Court.

Section 136 of the 1983 Act, as in force at the time of the applicant's arrest and the commencement of the legal proceedings in this case, provided as follows:

“(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.

(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.”

Section 139 provided:

“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.

(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.”

The relevant provisions of the 1983 Act have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes.

Section 2 of the 1983 Act allows for detention for the purposes of assessment for up to 28 days.

Section 2 of the Limitation Act 1980 (“the 1980 Act”) provides as follows:

“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued”

Section 4A establishes a more limited time period for commencing actions for defamation or malicious falsehood and provides that:

“The time limit under section 2 of this Act shall not apply to an action for–

(a) libel or slander, or

(b) slander of title, slander of goods or other malicious falsehood,

but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.”

Section 11 of the 1980 Act provides for a special time limit for actions in respect of personal injuries:

“(1) This section applies to any action for damages for negligence, nuisance or breach of duty ... where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from–

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

Section 33 of the Act provides for discretionary disapplication of the time-limit for actions in respect of personal injuries or death:

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which–

(a) the provisions of section 11 ... of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ...;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

The United Nations Convention on the Rights of Persons with Disabilities, signed by the respondent State on 30 March 2007 and ratified on 8 June 2009, aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (Article 1 of the UN Convention).

Article 12 provides for equal recognition before the law and stipulates:

“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.

Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”

Article 13 contains provisions on access to justice and provides, in so far as relevant:

“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in 1983, 1946 and 1936 respectively. The first and the third applicant live in Diyarbakır and the second applicant resides in Manisa. The application concerns the wounding of the first applicant, who was eleven years old at the time, and the death of the second and third applicants' sons, Çetin Alican and İlhami Alican, who were fourteen and thirteen years old respectively, as a result of the explosion of an RPG-7 (anti-tank grenade launcher) grenade outside the applicants' village, Kıyıdüzü, in Van.

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

On 22 April 1994 Kamuran Alican, Çetin Alican and Ilhami Alican took their animals out to graze. When the animals returned to the village without the children, the villagers launched a search party and informed the military nearby; the Van 6th Armoured Brigade Barracks. A search was also unsuccessfully conducted within the military confines. The next day, the dead bodies of Çetin Alican and Ilhami Alican were found in a wheat field between the army barracks and Nemrut Mountain. The first applicant, who had injuries to his eyes and legs, was found a few hundred metres away. He was immediately taken to Tatvan State Hospital for treatment. As a result of the explosion, the first applicant suffered partial loss of the sight of one eye and the total loss of sight in the other.

According to the first applicant's testimony, given to a prosecutor on 10 June 1994, the children were grazing their sheep in the field when they found an object with an iron head which looked like a bullet. The first applicant left the other two children to find water while they were trying to hit the iron head with pieces of metal. At that moment the bullet exploded.

On 23 April 1994 the Tatvan public prosecutor instigated an investigation into the incident. The prosecutor noted that there were numerous trenches around the area for tank and gun practice. The remains of the ammunition at the scene were secured. Reports and sketches were drafted and a postmortem examination was conducted on the deceased. The cause of death was attributed to hemorrhagic shock and the doctor deemed it unnecessary to conduct a classic autopsy of the deceased.

On 4 May 1994 the Tatvan public prosecutor decided that he lacked jurisdiction to investigate the incident and forwarded his decision to the military prosecutor's office at the Van 21st gendarmerie border brigade commandership (“the military prosecutor”).

The military prosecutor instigated an investigation into the incident. In particular, he requested the official records regarding the use of grenade launchers by the military during training, and medical reports regarding the health of the first applicant.

In the course of the investigation evidence was gathered from the first applicant, the third applicant, the head of the village, Mr M. M. Alican, a fellow villager, the soldiers on patrol duty on the day of the incident and a higher-ranking military official.

On 6 May 1997 the military prosecutor gave a decision that there was no need to initiate criminal proceedings on the ground that there was no fault or negligence attributable to anyone except Kamuran Alican, Çetin Alican and İlhami Alican. In his decision, the prosecutor noted that the children, while they were grazing their animals, had collected, near the trenches, a grenade from an RPG-7 grenade launcher and parts of a rocket, and that the incident had occurred while they were trying to explode them. He further noted that the incident had occurred 2,200 metres away from the Armoured Brigade Barracks where three fields met and that it was not a military area. In this connection, the prosecutor held that, according to the official military records, no unexploded grenades or rockets had been found after military training exercises, that the origin of these artefacts could not be established and that, even assuming that they were launched from the military training field, their range made it impossible for them to have landed 2,200 metres away from it.

The decision of the military prosecutor was served on 29 May 1997 on Ahmet Alican, on 7 July 1997 on Kamuran Alican and on 19 July 1997 on Ramazan Alican. The applicants did not object to the military prosecutor's decision.

On 20 February and 20 May 1995 the applicants made applications to the Ministry of the Interior for compensation on account of the injury sustained by the first applicant and the death of the other applicants' sons. They received no positive reply.

On 4 May 1995 the first and the second applicants, and on 17 April 1995 the third applicant, brought actions for compensation against the Ministry before the Van Administrative Court. They were represented by the same lawyers. In their petitions, the applicants claimed that Kamuran Alican had been injured and Çetin Alican and Ilhami Alican had died as a result of a mine which had been placed there by the gendarmerie police station. The first applicant requested the court to award 1,000,000,000 Turkish liras (TRL) for pecuniary damage and TRL 100,000,000 for nonpecuniary damage. The second and the third applicant each requested TRL 500,000,000 for loss of income on account of the death of their sons.

On 26 January 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant's claim in full. Although the amount determined by experts for pecuniary damage was significantly higher, the court was bound by the amount requested by the applicant.

The Ministry appealed.

On 8 February 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant.

On 28 September 2001 the Van Administrative Court, deciding that the Ministry of the Interior had responsibility, gave its judgment. The court held as follows:

According to the report of the public prosecutor, the incident took place 1,500 metres from the Van 6th Armoured Brigade Barracks. (According to the sketch plan the distance is 2,200 metres.) It was a grenade for a rocket launcher called RPG-7, which exploded. The explosion occurred in an area where rockets are launched. Yet the origin of the grenade which caused the explosion is unknown. According to the inventory of the Turkish Military Forces, this type of weapon (RPG-7) is used by the military. However, it was included in the inventory of the 6th Armoured Brigade after the date of the incident in question. The maximum shooting range of the RPG-7 is 700 metres. The results of an investigation into the military units deployed in the region prior to the incident revealed that only one of these units had engaged in shooting practice. According to the records of that unit they had left no unexploded grenades. The rocket launcher in question is frequently used by members of the PKK terrorist organisation. Furthermore, the incident took place 1,500 metres from the barracks, in an area, which according to the attached map, has been declared to be a 2nd degree military security zone.

Although it is established that the explosion occurred in the vicinity of the rocket launching zone, since the distance from the barracks was 1,500-2,200 metres it cannot be accepted that the unexploded grenade which caused the explosion was one used during a military unit's training. The investigation conducted by the military prosecutor at the 21st Gendarmerie Division Commander's office resulted in the same conclusion. Moreover, the conditions in the region are particular: the weapon in question is frequently used and hidden by the terrorist organisation. The grenade might have been left by terrorists who attacked the barracks. It should therefore be concluded that the damage in the present case was not caused by the activities of military forces but rather by terrorist activities. Nevertheless, taking into account the fact that a state of emergency was in force in the region at the time and the extraordinary nature of the damage, compensation should be awarded by the administration in accordance with the theory of “social risk”.

... The plaintiff should therefore be paid his claim in full, TRL 1,000,000,000 for pecuniary damage... although according to the expert reports, pecuniary damage in the present case could amount to TRL 19,237,229,000.

... As regards non-pecuniary damage, the plaintiff should be awarded TRL 100,000,000.

The Ministry appealed.

On 23 May 2002 the Supreme Administrative Court upheld the judgment of the first-instance court.

On 19 March 1998 the Van Administrative Court, basing its decision on the doctrine of “social risk”, awarded the applicant a certain amount of compensation.

The Ministry appealed.

On 22 December 1998 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, that is either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant.

On 16 November 1999 the Van Administrative Court, basing its decision on the doctrine of “social risk”, on the same ground as above, awarded the second applicant TRL 366,954,367 in respect of pecuniary damage together with legal interest running from the date of the incident, 23 April 1994.

The Ministry appealed.

On 9 April 2001 the Supreme Administrative Court upheld the judgment as regards the amount of compensation awarded but quashed the judgment of the first-instance court in respect of the date from which the interest should run.

On 28 November 2001 the Van Administrative Court held that the date of interest would start to run from the date when the applicant lodged an application with the Ministry, i.e. 20 February 1995.

The Ministry appealed.

On 15 March 2001 the Supreme Administrative Court quashed the judgment of the first-instance court on the ground that the latter had failed to determine which administrative entity, either the Ministry of the Interior or the Ministry of Defence, had responsibility for compensating the applicant.

On 9 October 2001 the Van Administrative Court, basing its decision on the doctrine of “social risk” on the same ground as above, awarded the third applicant TRL 305,135,146 in respect of pecuniary damage together with legal interest running from 20 May 1995.

The Ministry appealed.

On 31 December 2004 the Supreme Administrative Court upheld the judgment of the first-instance court.

The relevant domestic law and practice in force at the material time can be found in the following judgments: Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 68-69 and 75-78, ECHR 2004VI (extracts)), and Tepe v. Turkey (no. 27244/95, §§ 115-119, 9 May 2003).


Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in 1963 and lives in Kyiv.

On 22 December 1998 the applicant, accompanied by S.N. and V.B., threw a burning torch into a car belonging to O.S. as a retaliatory measure for allegedly unfair business dealings with the applicant. The interior of the car was damaged. The police decided not to initiate criminal proceedings into the incident at the material time for lack of corpus delicti.

On 8 May 1999 O.S. was fatally injured in a stabbing.

Criminal proceedings into the circumstances of his death were initiated on the same date.

According to the applicant, at about 8 p.m. on 8 May 1999 he was arrested on suspicion of incitement to murder and taken to the Vatutinsky District Police Station, where he was severely ill-treated by some ten police officers until he confessed to the offence on 10 May 1999. In particular, he alleged that the police officers had handcuffed and kicked him and fractured his ankle with a crowbar. He had lost consciousness and, on coming round, had found himself suspended from a crowbar with his hands locked under his knees. After he had signed the confession, the officers had contacted his wife and requested her to bring fresh clothes and a coat, on which he was then carried down to a police cell. Afraid that the staff of the Temporary Detention Centre (the “IVS”) would not admit the applicant on account of his injuries, the officers left him in a cell at the police station, unable to walk and without even the most basic care.

According to the official record, the applicant was arrested on 10 May 1999 at 3 p.m. in the premises of the Vatutinsky District Police Station.

On 10 May 1999 criminal proceedings were instituted against the applicant and two other individuals: M.V., who was suspected of O.S.’s stabbing, and S.N., who was suspected of having hired M.V. to do so.

On 19 May 1999 the applicant was admitted to the IVS. The officer on duty noted that he had a leg injury.

On 20 May 1999 the IVS paramedic called an ambulance. The ambulance paramedic found that the applicant had suffered a severe chest contusion and arranged for his admission to the Emergency Hospital, where he was treated until 17 June 1999. According to a medical certificate issued by the hospital, the applicant had suffered a closed chest injury, closed fragmental fracture of the right ankle and a haematoma in an ankle joint. He was operated on to drain abscesses on both ankles. 15 ml of puss was recovered from one ankle and 5 ml from the other.

On 22 May 1999 the applicant was officially indicted for incitement to murder.

On 29 October 1999 the Vatutinsky District Prosecutors’ Office rejected a request by the applicant to initiate criminal proceedings against the police officers on account of his alleged ill-treatment, as it found his complaint unfounded.

On 24 April 2000 the case-file concerning the murder charges was sent with the bill of indictment to the Kyiv City Court for examination on the merits.

On 10 May 2000 the court held the first hearing.

Between May and October 2000 the court held some eleven hearings. At the trial all the defendants retracted their initial confessions. Two witnesses also complained that they had been ill-treated by the police, who had incited them to give evidence against the defendants, who were friends of theirs. The applicant further alleged that the police officers had drafted a confession which they had forced him to sign.

On 31 October 2000 the Kyiv City Court found the defendants guilty as charged and sentenced the applicant to fifteen years’ imprisonment. It rejected the defendants’ allegations of ill-treatment, primarily on the strength of the testimony of eight police officers who had denied the allegations while admitting that force had been used to arrest the defendants. The court further referred to the prosecutors’ office’s decision of 29 October 1999, dismissing the applicant’s request to institute criminal proceedings.

On 14 January 2001 the applicant filed a new request with the prosecutors’ office for a criminal investigation into his alleged ill-treatment. This was rejected on 9 February 2001.

On 19 February 2001, following complaints by the defendants and several witnesses involved in the proceedings of ill-treatment, the Deputy Head of the Parliamentary Committee on Organised Crime and Corruption, R., sent a letter to the Prosecutor General requesting a criminal investigation.

In a letter of 2 March 2001 the Deputy General Prosecutor requested the Kyiv City Court to include his letter in the case-file and informed R. that no investigation had been possible at the material time, as the case had been pending before the judicial authorities, which prevented the prosecution from having access to the relevant materials annexed to the case-file.

On 27 March 2001 the Vatutinsky District Polyclinic issued the applicant with a certificate stating that, in addition to the injuries recorded in the hospital, in May 1999 he had also suffered injuries to his wrist and coccyx.

On 17 May 2001 the Supreme Court quashed the judgment of 31 October 2000 and remitted the case for additional pre-trial investigations. It found it peculiar that the applicant’s confession was dated 8 May 1999, while the official record stated that he had first been questioned and arrested on 10 May 1999. Further, it noted that the trial court should have ordered a medical report on the applicant in order to obtain objective information concerning his injuries and an assessment by a handwriting expert to verify his allegation that his confession had not been drafted by him.

On 23 July 2001 the investigators decided to resume the criminal proceedings against the applicant, S.N. and V.B on suspicion of arson in connection with the torching of O.S.’s car in 1998. Subsequently, the applicant was formally charged with arson.

On 26 July 2001 the criminal cases concerning both the arson and murder charges were joined.

On 31 August 2001 the medical records of the applicant’s injuries were assessed by a medical expert, who confirmed that in May 1999 the applicant had suffered a haematoma to his right ankle joint. At the same time he found that the chest contusion diagnosis was insufficiently substantiated. He did not provide any conclusions concerning the other injuries listed in the applicant’s records.

On 7 September 2001 the police instituted criminal proceedings against N.N., the applicant’s wife on the grounds that, while working as a nurse, she had forged, in particular, a certificate that purported to have been issued by the Vatutinsky District Polyclinic on 27 March 2001. On 16 October 2001 she was amnestied.

On 30 September 2001 the Vatutinsky District Prosecutors’ Office again refused to institute criminal proceedings in connection with the applicant’s allegation of ill-treatment. It noted, in particular, that the applicant had been arrested on 8 May 1999 and that, as the arresting officers had been aware that the applicant, a former sportsman, was well-built, might have been armed and was implicated in a serious offence, they had had to use force to arrest him. In doing so, they had tripped him up, thrown him against the bonnet of a car, and handcuffed him. The Prosecutor’s Office considered that this was what had caused the applicant to suffer the haematoma. As regards the other injuries noted in the applicant’s medical records, they had not been confirmed by the recent medical expert report.

On 29 November 2001 the Kyiv Forensic Experts Institute found it probable that the applicant’s confession had been dictated by a professional, skilled in the preparation of procedural documents, to an individual, who had written the text under stress, possibly on account of physical pain. No assessment was carried out to determine whether the statement had been written by the applicant’s hand.

In February 2002 the criminal case concerning the murder and arson charges was sent to the Kyiv City Court of Appeal (the former Kyiv City Court) for trial.

On 10 April 2002 the court decided that further pre-trial investigations were necessary. It found, inter alia, that the investigation had not fully complied with the Supreme Court’s instructions. In particular, it had not been established why the applicant’s confession had been dated 8 May 1999, while no other procedural documents had been executed on that date; nor was there any indication as to where the applicant had been held between 8 and 18 May 1999 and why he had arrived in the IVS only on 19 May 1999. The court further noted that the officers manning the premises where the applicant had been kept before 19 May 1999 should have been questioned about his state of health during that period. Finally, the investigation should have established whether it was likely that the applicant’s injuries had been caused in the manner he had described.

On 13 June 2002 the Supreme Court of Ukraine upheld the decision to order additional investigations.

On 31 October 2002 the case was referred to the Kyiv City Court of Appeal for trial. Between December 2002 and November 2003 that court held some forty hearings.

On 6 November 2003 the Kyiv City Court of Appeal remitted the case for a pre-trial investigation in respect of the murder charges. It found, in particular, that the materials relating to the applicant’s first interrogation, in which he had confessed to the murder, were inadmissible as evidence, as he had been questioned as a witness in the absence of a lawyer, whose presence was obligatory in view of the gravity of the alleged offence. Furthermore, the court referred to the failure of the investigation to establish the facts concerning the drafting of the applicant’s confession and the other circumstances of his arrest and initial interrogation, including the date. It noted, in particular, that the investigator had alleged that he had been unaware of the applicant’s detention on 8 May 1999. According to him, the applicant had confessed on 10 May 1999. At the same time, several police officers had submitted that the investigative and prosecuting authorities had been fully aware of the applicant’s arrest on 8 May 1999. The court also noted that the expert who had carried out the applicant’s medical assessment had not made any findings concerning certain of his injuries, including the wrist injury and two abscesses that had been noted in various medical records. Moreover, the assessment had not been carried out by a panel of experts as required, but by a single expert.

On 14 November 2003 the court found the applicant, S.N. and V.B. guilty of arson and sentenced the applicant to seven years’ imprisonment.

On 15 April 2004 the Supreme Court upheld the Court of Appeal’s decision of 6 November 2003 and judgment of 14 November 2003.

On 26 July 2004 the investigators ordered the applicant’s medical assessment by a panel of experts.

On 24 December 2004 the Kyiv City Bureau of Forensic Medical Experts found the diagnosis of the closed chest injury unfounded. They confirmed, however, that on 20 May 1999 the applicant had had the following injuries: a haemorrhage of the left ankle and contusion of soft tissue on the left arm, which qualified as light bodily injuries, and a haemorrhage of the right ankle and a closed fracture of the right ankle, which qualified as bodily injuries of “intermediate” gravity. Based on the available documents it was not possible to establish the exact date of the infliction of these injuries, however, their infliction in the period between 8 and 11 May 1999 was not improbable.

By 28 December 2006 the proceedings in respect of M.V., the alleged perpetrator of the murder, were terminated for want of evidence of his involvement. As of April 2008 the proceedings in respect of the applicant and S.N. were still pending.

The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).


The applicants, Mr Ahmet Yavuz, Mr Abdurrahman Işık and Ms Behiye Öner, are Turkish nationals who were born in 1966, 1957 and 1957, respectively, and live in Izmir. They were represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir. The Turkish Government did not designate an Agent for the purpose of the proceedings before the Court.

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

On 29 July 2002 the applicants were taken into police custody by policemen from the Anti-Terrorism Department of the Izmir Security Directorate on suspicion of membership of the illegal PKK (the Kurdistan Workers’ Party). Subsequently, their houses were searched and the incident reports were signed by the applicants. During the search, the police found documents relating to the PKK. Magazines published by the PKK were also found in the first applicant’s house.

On the same day the applicants signed forms whereby their rights as detainees were explained to them. The forms included their right to inform one of their relatives about their detention and their right to request the assistance of a lawyer.

According to the custody records (nezaret kayıt defteri), the police informed Ms Sadiye Yavuz (the wife of the first applicant), Ms Türkan Işık (the wife of the second applicant) and Mr Metin Öner (the brother of the third applicant) about the applicants’ detention. Moreover, it was noted in these records that the applicants did not request the assistance of a lawyer.

In their police statements, the applicants accepted the charges against them. The first applicant gave a detailed description of his role in the PKK.

On 31 July 2002 the applicants were questioned by the Izmir State Security Court Public Prosecutor. Before the public prosecutor, the applicants denied the charges against them and refuted the statements they had made to the police. The same day the applicants were brought before an investigating judge at the Izmir State Security Court. They confirmed the statements which they had made to the public prosecutor. The court ordered the detention on remand of the first two applicants and released the third applicant.

By an indictment dated 5 August 2002, the public prosecutor initiated criminal proceedings against the applicants in the Izmir State Security Court. The first applicant was accused of membership of the PKK and the last two applicants were accused of aiding and abetting that organisation. The applicants were represented by their lawyers during the domestic proceedings.

On 19 December 2002, taking into account the illegal documents found in his house, the witness testimonies that confirmed his involvement in the illegal organisation and recalling the fact that he had been previously convicted of aiding and abetting the PKK in 1997, the Izmir State Security Court found the first applicant guilty of being a member of the PKK. It accordingly sentenced him to twelve years and six months’ imprisonment under Article 168 of the Criminal Code. The court further acquitted the second and third applicants of the charges against them.

The first applicant appealed. On 9 June 2003 the Court of Cassation, upholding the State Security Court’s reasoning and assessment of evidence, rejected the applicant’s appeal.

The third paragraph of Article 128 of the Code of Criminal Procedure, as amended by Law no. 4744 of 6 February 2002, provides that, when a person is arrested, a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period by the public prosecutor.