Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939 and 1942 respectively and live in Lauf.

In 2006 the German secret service (Bundesnachrichtendienst) bought a data carrier from a certain K. for a considerable amount of money. The data carrier contained financial data from the Liechtenstein L. Bank relating to 800 people. K., who had formerly been an employee of the L. Bank, had illegally copied the data. The data carrier was submitted to the German tax investigation authorities, which subsequently instigated proceedings against, inter alia, the applicants, in relation to tax evasion crimes.

On 10 April 2008 the Bochum District Court (“the District Court”), following an application from the Bochum prosecutor’s office, issued a search warrant in respect of the home of the applicants, who were suspected of having committed tax evasion between 2002 and 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002.

The search warrant indicated that, in the course of investigations against another suspect, the prosecution had obtained information that the applicants had established the “K. Foundation” on 17 January 2000 and the “T.U. S.A.” on 14 June 2000. The applicants were suspected of having made financial investments via these two associations with the L. Bank in Liechtenstein, for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of the yearly interest accrued from the capital of both the K. Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate.

On 23 September 2008 the applicants’ flat was searched and one envelope containing L. Bank documents and five computer files were seized.

The applicants appealed against the search warrant. They argued that the warrant had not been granted in accordance with the law. It had been based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, because the data had been stolen from the L. Bank and had been bought by the secret service. The acquisition of the data had also violated domestic law, as the secret service had no authorisation to obtain tax data. In fact, such an act was a criminal offence under German law, as it infringed section 17(1) and section 17(2)(2) of the Unfair Competition Act (“divulgence of official secrets” (Geheimnisverrat)). Furthermore, the secret service was not authorised to forward tax data to the financial authorities and the prosecution, as this infringed the German legal principle of separation of the secret service and the police/prosecution (Trennungsprinzip).

On 8 April 2009 the Bochum District Court dismissed the appeal. It was of the view that the house search had been legal as it had been based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information contained in the Liechtenstein data carrier, as, in its view, the data had neither been seized in direct violation of international law nor by circumventing international treaties.

The District Court was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier, as the secret service had only played a passive role in acquiring it. According to the court, there was no indication that the secret service had incited a third person to steal the data, and it had merely accepted the data from a third person when this person had offered it. The fact that the secret service might have remunerated the seller did not, in the court’s view, change the fact that the secret service had only played a passive role. In the court’s opinion, it was within the secret service’s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution, as the data carrier contained 9,600 sets of data concerning international cash flows.

On 7 August 2009 the Bochum Regional Court dismissed the applicants’ appeal. It held that the search warrant had been lawful, even if it was true that the German authorities had infringed domestic criminal law in obtaining the evidence. Even assuming that the German authorities might have committed the criminal offences of acting as an “accessory to a criminal offence” (Begünstigung, Article 257 § 1 of the German Criminal Code) and an “accessory to the divulgence of official secrets” (Beihilfe zum Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair Competition Act, in conjunction with Article 27 of the German Criminal Code) in buying the Liechtenstein data from K., and that K. might have committed the offence of “industrial espionage” (Betriebsspionage, section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to have been lawful. With regard to the applicants’ allegation that the data had been acquired in breach of international law, the Regional Court doubted any such breach.

As regards the question whether illegally obtained evidence could be used in criminal proceedings, the Regional Court referred to a decision of the same court of 22 April 2008, where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third party and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third party could generally be used in criminal proceedings, unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data had not infringed the core of the applicants’ private sphere, but their business affairs. Furthermore, the “data theft” had not primarily infringed the rights of the applicants, but the data-protection rights of the bank from which it had been “stolen”. Thus, the Liechtenstein data was not excluded as evidence and the search order could be based on it. As to the presumed breach of international law, the court added that such a breach would not lead to the unlawfulness of the search warrant, firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law.

On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They were of the view that the Regional Court and the District Court should have decided that the search warrant had not been in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant had violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data.

Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed, as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transfer of the Liechtenstein data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in Germany. The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the Liechtenstein data could not have formed the basis of a search warrant. They would thus have been obliged to declare the search warrant illegal.

On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the fact that the search warrant had been based on the Liechtenstein data did not infringe Article 13 of the Basic Law.

The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings (compare paragraph 28 below). The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial, but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings. Even if evidence was considered inadmissible in criminal proceedings, this did not automatically mean that the same was true for all stages of criminal investigations.

Furthermore, the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law, but to review, in the light of the Basic Law, the decisions taken by the authorities in the exercise of their margin of appreciation.

In applying these general principles to the case at hand, the Federal Constitutional Court ruled, at the outset, that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in Germany, as the Regional Court had departed in its decision from the applicants’ allegation that the evidence might in fact have been acquired in breach of domestic and international law, including criminal law.

The Federal Constitutional Court found that the fact that the Regional Court based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of Article 13 of the Basic Law. Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants’ basic rights. Furthermore, the Federal Constitutional Court considered reasonable the District and Regional Court’s legal assessment that the principle of separation of the secret service and the prosecution had not been infringed, as the facts of the case did not show that the secret service had either ordered or coordinated the “data theft”, but had been offered the data on K.’s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation, and hence could not render a search warrant unconstitutional.

With regard to the Regional Court’s finding that the search order could be based on the Liechtenstein data the Federal Constitutional Court found that the Regional Court’s legal assessment sufficiently took into account the applicants’ basic rights as the Regional Court had departed from the applicants’ allegation that the evidence had been obtained in breach of domestic law and thus based its decision on, what was, for the applicants, the best possible assumption.

The Federal Constitutional Court further considered that the Regional Court had struck a fair balance between the different interests at stake. The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue. Furthermore, the Regional Court had rightly pointed out that the data did not relate to the core area of the applicants’ private life, but to their business activities. It had recognized the decisive interest at stake, namely the applicants’ right to inviolability of their home, and took it sufficiently into account, as nothing showed that German authorities purposely and systematically breached international or domestic law in obtaining the data carrier.

On 2 August 2012 the Nuremberg District Court acquitted the applicants of the charges of tax evasion, finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest-bearing way.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in 1978 and lives in Rheine.

On 26 June 2012 the applicant was arrested on the spot for having damaged with a hammer a number of vehicles parked in the Bocholt courthouse’s car park, and resisting a court’s clerk. As a preliminary measure he was confined to a psychiatric hospital. The court appointed defence counsel to the applicant, who had a previous history of psychiatric treatment going back as far as 1999.

On Tuesday 18 December 2012, the Münster Regional Court delivered its judgment and ordered the applicant’s confinement to a psychiatric hospital. It held that the applicant could not be held criminally responsible and was mentally ill. According to the court’s psychiatric expert, he was psychotic and aggressive, did not show any awareness of his illness and it was likely that he would commit further, even more serious crimes.

When the judgment was delivered in the presence of the applicant, his courtappointed defence counsel and the applicant’s custodian (gesetzlicher Betreuer), the applicant became agitated. He told the courtappointed lawyer that he wished for a change in representation and declared that he wanted to appeal against the decision himself. He was informed that this was not possible on the spot. The presiding judge instructed him about the time and form for lodging an appeal on points of law. He was then returned to the forensic hospital where, when in contact with others, he showed no more signs of agitation.

On Friday 21 December 2012 the applicant received a letter from the courtappointed lawyer, dated 19 December 2012, who advised him as follows:

“... You already announced immediately after the hearing that you wanted to appeal against the court’s decision and also to mandate new defence counsel. We respect your wish for new counsel and hereby terminate the mandate.

Regarding the remedy you wished for, we give the following advice: You may appeal on points of law against the decision of the Münster Regional Court (Bocholt Chamber) within one week after the judgment was delivered, thus until

27 December 2012

at the latest.

Appeal on points of law may be lodged either with the record of the registry or in writing. Since you are not at liberty, the special provision of Article 299 of the CCP applies to you. This means that you can make statements relating to appellate remedies to the record of the registry of the District Court in whose district the institution is located.

Thus, the Rheine District Court would be competent.

According to Article 299 § 2 of the CCP, in order to meet the time-limit it suffices if the record is taken within the time-limit.

In your own interest you should take care that the appeal is lodged in time.

For the sake of completeness we refer to Article 345 of the CCP which prescribes that the specific grounds of the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by the expiry of that timelimit, the timelimit shall start to run upon the service thereof.

In your case this may only be done in the form of a notice signed by defence counsel or by an attorney, or to be recorded by the court registry.”

Still, on 21 December 2012 the applicant typed and signed an appeal letter to the Rheine District Court and asked the clinic’s staff to post it. This was done on the following day (Saturday 22 December).

On Friday 28 December 2012 the applicant’s appeal letter reached the Rheine District Court, and was forwarded to the Münster Regional Court where it was received on 3 January 2013.

On 8 January 2013 the Regional Court informed the applicant that his appeal was belated. It underlined that the applicant had been instructed after the judgment’s delivery that an appeal could only be recorded by the registry of the District Court but could not be lodged in writing.

On 14 January 2013 the courtappointed lawyer, who had resumed his activity for the applicant, requested a reinstatement of the proceedings in accordance with Article 44 of the Code of Criminal Procedure (Wiedereinsetzung in den vorherigen Stand - see paragraph 19 below) and lodged an appeal on points of law. He explained that the applicant had misunderstood his counsel’s instruction on how to lodge an appeal. The applicant had believed that he was able to choose whether he wanted to lodge the appeal in writing or have it recorded by the registry either at the Rheine District Court or the Münster Regional Court. He could also have expected the appeal, posted on 22 December, to reach the Rheine District Court by 27 December 2012.

On 11 March 2013 the Federal Prosecutor General observed, inter alia, that:

“He [defence counsel] referred to Article 299 of the Code of Criminal Procedure by using wording which was not per se wrong but potentially misleading because it could be understood that the appeal on points of law might be lodged either (by the applicant himself) with the record of the Rheine District Court’s registry or in writing with the same court.”

However, according to the Federal Prosecutor General, the oral instruction on the day of the hearing was sufficient.

On 9 April 2013 the court-appointed lawyer submitted that:

“... already at the time of trial the applicant was confined to a psychiatric clinic because of his mental illness. It may be that the oral instructions on the right to appeal given after the delivery of the judgment were correct and complete. However, when judgment was passed which ordered his confinement to a psychiatric hospital, the applicant was not in his right mind. Communication between the applicant and his defence counsel was impossible. The applicant was obviously in an exceptional mental state. In such a situation, taking into account the applicant’s psychiatric illness, it must be assumed that he had not understood the oral instructions on the right to appeal which were given immediately after the delivery of the judgment.”

On 24 April 2013 the Federal Court of Justice rejected the applicant’s request for reinstatement and consequently dismissed his appeal on points of law as inadmissible because it had been lodged out of time. It held that it was not necessary to examine whether, with regard to the Christmas holidays, the applicant should have expected his letter to be delivered only on 28 December 2012. Rather, it found decisive that the applicant had been expressly instructed on the day of the judgment’s delivery that an appeal could only be lodged with the Rheine District Court to the record of the registry, but not in writing. An accused who misunderstood the oral instruction and therefore lodged an appeal out of time was himself responsible for this. The Federal Court of Justice distinguished the applicant’s case from caselaw which made exceptions for a foreigner who was not defended by counsel. Moreover, the applicant’s defence counsel had given him instructions on the form and timelimit for an appeal. According to the Federal Court of Justice, the content of this letter was not misleading but reflected correctly the applicable law. There was nothing to show that the applicant might not have understood the oral instructions by the presiding judge for mental health reasons. He misunderstood the subsequent written instructions of his defence counsel in the same way.

The applicant filed a constitutional complaint to the Federal Constitutional Court. He stated, inter alia, that another lawyer had advised him that his courtappointed defence counsel had been under an obligation to file the appeal on points of law.

On 29 June 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 1243/13).


CASE OF RUIZ RIVERA v. SWITZERLAND [Extracts]

Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in 1955 and lives in Cusco (Peru). At the material time he was living in Zurich.

Criminal proceedings against the applicant following the premeditated murder of his wife

On 6 April 1995 the applicant’s wife was found dead. The applicant who, according to the toxicological examinations that he subsequently underwent, was under the influence of alcohol and cocaine, had stabbed his wife 49 times. He had also cut off her head and thrown it out of the window of the flat where the incident had taken place.

At an unknown date the applicant was charged with his wife’s murder.

On 16 May 1995 the public prosecutor for the district of Zurich asked the psychiatric clinic of the University of Zurich (Psychiatrische Universitätsklinik Zürich) to carry out a psychiatric assessment of the applicant.

On 10 October 1995 Doctor R., a psychiatrist, issued his report. He found that the applicant had been suffering for several years from chronic paranoid schizophrenia and had a drug addiction. He took the view that the offence had been directly related to his illness and drug abuse. He concluded that at the material time the applicant had not been criminally responsible for his actions. In view of the serious danger he represented for public safety, Dr R. recommended his confinement.

On 31 May 1996 the District Court of Zurich found, having regard to the evidence before it, that the applicant had killed his wife and that he had been totally lacking in criminal responsibility for his actions at the material time. The court thus ordered his confinement within the meaning of Article 43 of the Criminal Code as then in force.

The applicant’s confinement and second psychiatric assessment

The applicant was placed in confinement from 29 August 1996 onwards at Pöschwies Prison in Regensdorf (Canton of Zurich).

His discharge was refused on 14 July 1997, 29 July 1998, 24 September 1999 and 17 August 2000.

On 7 June 2001, at the request of the Probation and Sentence-enforcement Service of the Canton of Zurich (Bewährungs- und Vollzugsdienste des Kantons Zürich), the applicant’s mental health was examined by a head doctor and an assistant doctor of the Cantonal Psychiatric Clinic of Rheinau (Kantonale Psychiatrische Klinik Rheinau), who drew up a second psychiatric report.

The expert psychiatrists observed that the applicant had not encountered any particular difficulties in the custodial facility where he had been held since 1997. In the prison he had successively worked as a bookbinder, in the dispensary, as a gardener and lastly as a cook. The experts took note of the fact that, according to a psychological report of 5 June 1998, the applicant had not displayed any awareness of his illness and no capacity for introspection. As regards his mental health, the experts concluded that he was suffering from chronic paranoid schizophrenia and that in the “not very stimulating” atmosphere of the prison, “the positive symptoms of the illness had become less noticeable”, even though he “still display[ed] a delirious interpretation of the details of his offence”. His situation had thus changed little since his psychiatric assessment in 1995. In view of the lack of treatment, the experts took the view that “no indication c[ould] be given as regards alternative arrangements for the enforcement of the measure or the possibility of discharge on probation”.

On 14 January 2002, 23 September 2002 and 21 August 2003, the Judicial Enforcements Office of the Canton of Zurich (Justizvollzug des Kantons Zurich) refused the applicant’s discharge on probation. The applicant challenged the decision of 23 September 2002 before the Administrative Court of the Canton of Zurich (Verwaltungsgericht des Kantons Zurich), which dismissed his appeal on 4 December 2002.

On 23 March 2004 the Psychiatry and Psychology Service of the Judicial Enforcements Office issued an annual therapy report, signed by two psychologists, one of whom had treated the applicant. The report confirmed the findings of the psychiatric assessment carried out in 2001 and indicated an unfavourable legal prognosis on account of the applicant’s personality and the impossibility of treating his residual psychotic symptoms. The applicant continued, in particular, to deny that he was ill and refused to follow the medical treatment that had been prescribed for him. The psychologists concluded that the conditions for his discharge on probation were not satisfied. At the end of their report they indicated that they had discussed the report with the applicant and had given him a copy.

Refusal to discharge the applicant and the proceedings before the domestic courts

On 24 June 2004, after hearing the applicant in person in an interview of 6 May 2004, the Judicial Enforcements Office of the Canton of Zurich refused his discharge on probation. It based its decision on a report of the Pöschwies Prison administration of 27 April 2004, on the annual report of 23 March 2004, and on the psychiatric assessment of 2001.

Assisted by a lawyer, the applicant appealed to the Directorate of Justice and Internal Affairs of the Canton of Zurich, arguing that a fresh expert’s assessment was necessary. He applied for legal aid. The Directorate of Justice and Internal Affairs dismissed his application in a decision of 28 September 2004. He was exempted from paying administrative costs, but was denied the free assistance of a lawyer, on the ground that his appeal was devoid of any prospect of success, as his discharge on probation had already been refused several times and there had been no change in the meantime.

The applicant lodged an appeal with the Administrative Tribunal of the Canton of Zurich. Once again, he submitted that the verification of the need for his confinement had to be based on a fresh psychiatric assessment by a neutral doctor. He also sought free legal assistance and requested a hearing, submitting as follows:

“It is is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he [cannot be] ‘afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty’ (ECtHR judgment Winterwerp v. the Netherlands, 24 October 1979, Series A, no. 33, § 60).

While the requirements of Article 5 § 4 ECHR [can be distinguished] from those laid down in Article 6 ECHR, which applies to civil and criminal proceedings, this provision dictates, according to legal science, that sufficient safeguards be afforded in order to guarantee effective judicial supervision.

Should a fresh expert’s opinion not be ordered, it would at least be justified for the author of the report to give evidence at a hearing of the court and for [the applicant] to put questions to him.

As already stated, European legal science guarantees in such cases an adversarial hearing and the examination of witnesses. It entails that a fresh expert’s opinion may prove necessary in order to uphold the rights of the person confined.”

The Administrative Court dismissed the applicant’s appeal by a decision of 19 January 2005. It found that in view of the circumstances, the expert’s report of 2001 was still valid. The doubts expressed by the applicant concerning that report had already given rise to a final judgment of the Administrative Court of 4 December 2002. Moreover, it was unnecessary for the expert to give evidence as he had already expressed his opinion clearly and comprehensively in his report. No new pertinent information could thus be expected of such a hearing. In addition, the applicant had not shown how his right of access to a court had actually been impaired. He had failed to indicate the reasons which led him to believe that the Administrative Court was not able to comply with the basic rules of procedure or to exercise sufficient supervision. Lastly, he had been denied legal assistance on the ground that his appeal appeared devoid of any prospect of success, two appeals in the same case already having been dismissed without any change in the meantime.

The applicant lodged an administrative-law appeal with the Federal Court. He reiterated the complaints he had submitted to the Administrative Court: the last expert’s report was now four years’ old, and the therapy report was not a neutral assessment and was insufficient. In addition, given that various findings of the expert’s report were based on misinterpretations it was necessary for a fresh expert’s report to be drawn up or for the expert to give evidence with the possibility of cross-examination. The applicant was, moreover, entitled to the holding of a public and adversarial hearing. Lastly, the denial of legal assistance by the court below had impaired his right of access to a court. As the applicant was entitled to regular scrutiny of the lawfulness of his detention, the fact that he was appealing again against a refusal could not constitute a ground for refusing legal aid. The applicant also sought free legal assistance in the proceedings before the Federal Court.

In a judgment of 19 October 2005 the Federal Court dismissed the applicant’s appeal. It declared inadmissible the complaint concerning the lack of a public hearing, on the ground that no formal application to that effect had been lodged with the cantonal authorities. As regards the need for a fresh assessment by a neutral expert, it first noted that Article 45 of the Criminal Code did not require one, even though case-law had found it necessary in particular circumstances. In the present case, the Federal Court found that a fresh psychiatric assessment was not necessary, because the initial diagnosis had been confirmed in subsequent therapy reports and “no change c[ould] be identified”. It concluded that no other measure of sentence enforcement could be considered, with the result that the maintaining of the applicant’s confinement was to be regarded as proportionate. As regards, lastly, the complaint about the refusal to grant the applicant legal aid, the Federal Court first observed that he had been able to use the remedies available to him. It then noted that Article 5 § 4 of the Convention required scrutiny of the lawfulness of detention only at reasonable intervals, and that such intervals were longer with regard to persons of unsound mind, where circumstances only changed in the medium term. The last decision to have been taken by a court in the present case dated from 4 December 2002. At the time of the annual assessment by the prison administration in 2004, it had been found that the circumstances had clearly not changed since that decision. The appeal thus appeared to be devoid of any prospects of success. In the Federal Court’s view, that constituted a legitimate ground on which to deny legal aid. In view of the foregoing, legal aid was also denied in respect of the proceedings before the Federal Court itself.


Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

A list of the applicants is set out in the appendix. They are all Georgian nationals, represented by Ms Natia Katsitadze and Mr Philip Leach, lawyers practising in Tbilisi and London.

The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze, of the Ministry of Justice.

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

The Soviet Political Repression Act of 11 December 1997 (“the Act of 11 December 1997”) provided that Georgian nationals who had suffered various forms of political persecution on the territory of the former Soviet Union between February 1921 and 28 October 1990, as well as their first-generation heirs, could claim compensation for non-pecuniary damage. In particular, section 9 of the Act read as follows:

“A person who has been recognised as a victim of political repression on account of having been subjected to deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital, or who died as a result of such repression, or this victim’s first-generation heir, shall receive monetary compensation, the amount and procedures for payment of which shall be established by law.”

Despite the general undertaking contained in section 9 in fine of the Act of 11 December 1997, the Georgian State did not enact legislation defining the amount and procedures for payment of the relevant compensation.

In its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze, the Court found a violation of Article 1 of Protocol No. 1 on account of the respondent State’s failure to undertake the necessary measures to ensure the effective exercise of the applicants’ right to receive monetary compensation for non-pecuniary damage under section 9 of the Act of 11 December 1997 (see Klaus and Yuri Kiladze v. Georgia, no. 7975/06, §§ 68 and 74-77, 2 February 2010).

Applying Article 46 of the Convention, the Court stated that, since the finding of a violation under Article 1 of Protocol No. 1 concerned a large number of people and reflected a structural problem, it was urgent to undertake the necessary legislative, administrative and budgetary measures at the domestic level in order that victims of Soviet political repression, who were targeted by section 9 of the Act of 11 December 1997, could effectively benefit from the right to receive compensation under that section (see Klaus and Yuri Kiladze, cited above, §§ 84 and 85). Applying Article 41 of the Convention, the Court also held that if the necessary measures (legislative and other) were still lacking six months after the date on which the judgment became final, the respondent State would have to pay each of the two applicants, in accordance with Article 44 § 2 of the Convention, 4,000 euros (EUR) in respect of non-pecuniary damage (ibid., § 90).

As the necessary general measures were not implemented by the respondent State within the above-mentioned time-limit of six months, each of the two applicants in that case duly received EUR 4,000 from the respondent State, as indicated by the Court.

For the purposes of implementing the general measures indicated by the Court under Article 46 of the Convention in its judgment of 2 February 2010, in March-April 2011 the Parliament of Georgia introduced draft amendments to the Act of 11 December 1997 and the Code of Administrative Procedure.

On 14 April 2011 the Government submitted the above-mentioned draft amendments to the Committee of Ministers of the Council of Europe (see paragraphs 25 and 26 below).

On 19 April 2011 the amendments were adopted, with certain modifications, by the Parliament of Georgia. They entered into force on 18 May 2011 (hereinafter “the Amendments of 19 April 2011”).

Thus, under the new Article 21 §§ 26-29 of the Code of Administrative Procedure, victims of Soviet political repression or their first-generation heirs had until 1 January 2014 to lodge applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. The new provisions of the Code also provided for various additional procedures for the lodging of such applications, their examination by the Tbilisi City Court and subsequent appellate proceedings before the Tbilisi Court of Appeal, the latter acting as the final level of jurisdiction in such matters.

As to the amount(s) of compensation payable under section 9 of the Act of 11 December 1997, they were not fixed by any of the abovementioned legislative amendments. Instead, a new subsection (4) was added to section 9 of the Act, stating that the relevant domestic court had the competence to determine an appropriate amount of compensation in each case, having regard to the particular factual circumstances:

Section 9(4)

“The amount of compensation shall be determined by the court on the basis of the gravity of the form of coercion in question ... [deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital or death], as well as the age and health of the repressed person or his/her first-generation heir, and other objective factors.”

As confirmed by the official statistics issued by the Tbilisi City Court on 16 September 2011, within five months of the entry into force of the above-mentioned legislative amendments, more than 3,000 applications for monetary compensation under section 9 of the Act of 11 December 1997 were lodged with the City Court, out of which seventy-three cases were decided. The compensation awards in the cases examined varied from 100 to 500 Georgian Laris ((GEL) – EUR 46 and EUR 230 respectively), the maximum amount having been awarded only to the first-generation heirs of victims of repression who had been executed by the Soviet State.

All four applicants (see the appendix below) are first-generation heirs of victims of Soviet political repression. In July 2011, after the entry into force of the Amendments of 19 April 2011 (see paragraphs 914 above), they lodged applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997.

Thus, the first applicant requested GEL 15,000 (EUR 7,000). She referred, amongst other circumstances, to her age (she was seventy-two years old), poor state of health and, most importantly, to the fact that her father had been recognised, by a court decision of 11 May 1998, as a victim of Soviet repression on account of his arbitrary conviction by a Soviet military tribunal for proffering anti-Soviet statements and his consequent execution by a firing squad in October 1942.

As to the second, third and fourth applicants, who are siblings, they jointly requested GEL 25,000 (EUR 11,820). The applicants submitted that their father had been recognised as a victim of political repression in 1997 on account of his arbitrary conviction in 1951 by a Soviet military tribunal for high treason; their father had first been sentenced to twenty-five years’ imprisonment but had been pardoned and released from detention in 1955.

On 17 August and 19 September 2011 the Tbilisi City Court, in the context of two separate and unrelated sets of proceedings, allowed the applicants’ claims in part. On 1 and 15 November 2011 the Tbilisi Court of Appeal upheld those decisions on appeal. The first applicant was granted compensation of GEL 400 (EUR 190), whilst the second, third and fourth applicants were jointly awarded the sum of GEL 290 (EUR 137).

The reasons given by the domestic courts in their decisions were similar in both sets of proceedings. Thus, at first instance, the Tbilisi City Court, taking into account the relevant domestic provisions as well as the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), noted that the amount of compensation payable under section 9 of the Act of 11 December 1997 had not been fixed by law but, on the contrary, had been left to be determined by the relevant court on the basis of the particular circumstances of each individual case. On the other hand, since it was impossible to assess all the suffering, injustice and harm caused by the various drastic forms of Soviet political repression, any such amount of compensation could only be, by its very nature, symbolic. No monetary compensation could ever serve as sufficient non-pecuniary relief. More important in this regard was the fact that the Georgian State had acknowledged the historical injustice as such. The court added that the respondent State had fully complied with the Court’s judgment of 2 February of 2010 by introducing legislative amendments aimed at filling “the legislative vacuum” which had been criticised by the Court.

As to the appellate proceedings, the Tbilisi Court of Appeal, in reply to the applicants’ argument that the domestic awards were derisory and disproportionate in comparison with the sums awarded by the Court in its judgment in the case of Klaus and Yuri Kiladze (cited above, § 90), stated that the domestic courts retained a broad discretionary power to determine amounts of compensation. The appellate court pointed out that the Court itself had acknowledged that the respondent State should remain free to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court (ibid. § 88); the Court had not indicated to the respondent State any specific amount of compensation to be paid under section 9 of the Act of 11 December 1997. The appellate court also stated that, although the amount of compensation should not be less than the minimum wage in Georgia (some EUR 74), the State’s budgetary capacities and the overall number of victims of Soviet political repression (several thousands of people) should also be taken into account when determining the award.

For the purposes of further implementation of the general measures indicated by the Court in its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), a second wave of legislative measures was initiated by the respondent State on 31 October 2014. Notably, on the latter date Parliament made a number of significant amendments to the Act of 11 December 1997 and the Code of Administrative Procedure, which came into force on 1 January 2015 (hereinafter “the Amendments of 31 October 2014”).

In particular, the amended section 9(4) of the Act of 11 December 1997 determined the range of compensation payable to victims of Soviet political repression. Thus, the minimum amount payable under the law was fixed at GEL 1,000 (EUR 454), whilst the maximum amount within the range was set at GEL 2,000 (EUR 908). The provision further specified that the exact amount payable as compensation should be determined by a domestic court within the above-mentioned range in the light of the particular circumstances of each case, such as the gravity or the type of persecution in question, the age and health of the claimant – the victim of Soviet political repression or of his or her first-generation heir – and other relevant factors.

Furthermore, in order to assist those victims of Soviet political repression whose claims had already been decided under the preceding version of section 9(4) of the Act of 11 December 1997, the Amendments of 31 October 2014 provided that the legislation would have retroactive effect. In particular, they stated that those victims of Soviet political repression, or their first-generation heirs, who had already been awarded compensation by the Tbilisi City Court in amounts falling below the minimum threshold set by the new section 9(4) of the Act (compare paragraphs 13 and 22 above) were entitled to re-apply to a court for a fresh assessment of the particular circumstances of their case, determination of the amount of compensation payable under the amended section 9(4) and, if applicable, payment of the difference between the new amount thus determined and the previous award.

The Amendments of 31 October 2014 further re-worded Article 21 § 26 of the Code of Administrative Procedure to state that together with the Tbilisi City Court, which maintained jurisdiction to hear claims from victims of Soviet political repression or their first-generation heirs residing in the east of Georgia, the Kutaisi City Court was vested with jurisdiction to hear claims emanating from claimants residing in the west of the country.

During their 1108th meeting held on 10 March 2011, in the context of their supervision of the execution of the Court judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), the Committee of Ministers adopted a decision, which reads as follows:

“The Deputies,

took note with satisfaction that the just satisfaction as well as the default interest due have been paid to the applicants;

took note with interest of the preliminary action plan which has been submitted by the Georgian authorities according to which a draft law has been prepared which will be submitted to the Parliament in March 2011;

invited the Georgian authorities to submit to them a consolidated action plan for their 1115th meeting (June 2011).”

During their 1115th meeting held on 8 June 2011, the Committee of Ministers adopted another decision on the matter, which reads as follows:

“The Deputies,

took note, with satisfaction, of the action plan submitted by the Georgian authorities according to which in April two draft laws were being discussed before Parliament with implementation by the Tbilisi court expected to begin in May 2011: the first amending the [Act of 11 December 1997], in order to provide for compensation for victims; the second one amending the Code of Administrative Proceedings in order to organise the practical modalities of granting such compensation;

also took note with satisfaction of the subsequent information (adoption on 19/04/2011 of the amendment to [Act of 11 December 1997] and publication in the Official Journal of 18 May 2011) showing that the action plan is being implemented within the foreseen timeframe;

decided therefore to transfer this case for examination under the standard supervision procedure.”

Lastly, during their 1222nd meeting held on 12 March 2015, the Committee of Ministers adopted a Resolution (CM/ResDH(2015)41) on the closure of supervision of the execution of the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above). The relevant parts of the Resolution read as follows:

“Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established; ...

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court ...;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

Declares that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

Decides to close the examination thereof.”


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Ms Małgorzata Stefaniak, is a Polish national who was born in 1964 and lives in Koszalin. She is represented before the Court by Mr A. Bodnar and Ms I. Pacho, lawyers working for the Helsinki Foundation for Human Rights in Warsaw. In 2015 Mr A. Bodnar was appointed to the post of Ombudsman and no longer represents the applicant.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

Since 2003 the applicant has been serving various prison sentences. The end of her current sentence falls in 2030.

The Government maintained that during her imprisonment in various prisons the applicant had been given constant medical care. The applicant had been treated for various illnesses and had received specialist treatment, specifically gynaecological, dental and psychiatric care.

The applicant submitted that the medical attention she had received had not been adequate. For instance she had refused a gallbladder removal as the prison hospital had offered her only standard surgery, not a laparoscopic operation. She had also reported problems with her spine and was undergoing constant psychiatric treatment.

On 1 September 2010 the applicant consulted a laryngologist who, for the first time, diagnosed a hearing impairment and recommended the use of a hearing aid. On 28 September 2010 an audiogram was carried out, on the basis of which a doctor confirmed, on 30 September 2010, that the applicant was suffering from hearing loss.

Her first request to be provided with a hearing aid had been dismissed by the prison authorities in December 2010 as it had not been absolutely necessary in her condition. In particular, the prison authorities did not find it established that her hearing impairment had been such as to cause her difficulties in her everyday life in prison.

On 31 January 2011, while detained in the Bydgoszcz prison, the applicant made a new request for a hearing aid. On 21 February 2011 the director of the prison hospital at the Bydgoszcz prison informed her that it had not been possible for the authorities to fund a device.

On 7 April 2011 the Koszalin medical prison service issued a certificate referring to the audiogram of 28 September 2010 and to the consultation with the laryngologist. The doctor stated that the applicant was suffering from a hearing impairment and recommended the use of a hearing aid, paid for either by the applicant or by the prison medical services.

On 31 August 2011 a doctor from a private practice issued a certificate on the basis of the audiogram of 28 September 2010 without examining the applicant. She certified a 60% hearing loss, justifying the need for a hearing aid.

On 8 September 2011 a second audiogram was carried out. The applicant was of the view that it proved deterioration of her hearing but the Government submitted that her condition had remained the same.

During that period the applicant underwent a re-education program to ease her spinal condition and various basic and more specialised medical examinations. Those included scans or X-rays of the spine, abdomen, breasts, and chest, as well as further audiograms.

The applicant submitted that she had requested a hearing aid on numerous subsequent occasions, but to no avail. The prison authorities referred to lack of funds.

On 15 April 2013 the applicant received a medical certificate confirming her various medical conditions, referring in particular to her spine, ovaries, kidneys and hearing. The certificate concluded that the applicant should continue receiving re-education treatment for her spine and recommended fitting her with a hearing aid.

On 14 March 2014 the applicant was transferred to the Chojnice Remand Centre. On 16 June 2014 she consulted a specialist doctor who recommended that the applicant be provided with a hearing aid.

On 23 July 2014 the authorities provided the applicant with a hearing aid. The entire cost of 877 Polish zlotys (PLN) was covered by the Chojnice Remand Centre.

On 31 November 2014 the director of the Chojnice Remand Centre explained in a letter that its limited financial resources had not allowed the purchase a different model of hearing aid, as requested by the applicant. The model given to her was of a type also used by other detainees, who had never complained about it. The Director referred to the provisions of domestic law, which allow the authorities to partly or entirely cover the cost of medical equipment such as hearing aids.

During her detention the applicant frequently requested leave from prison for various purposes. She was granted leave in 2004 and 2008 for medical purposes.

On 19 April 2011 the Penitentiary Division of the Koszalin Regional Court dismissed the applicant’s request for temporary leave on health grounds. The court found that the applicant had obtained prison leave in 2008 for the purpose of having an operation. During the leave she had committed further offences and had undergone surgery on the very last day of her leave. She had also failed to return from the leave on time. The court sought a medical expert opinion which stated that the applicant could be treated in prison for her spinal condition. The court concluded that the applicant’s medical condition was not incompatible with detention and that she was receiving appropriate medical care from the prison health services. On 20 July 2011 the Szczecin Court of Appeal upheld the decision and refused her leave from prison.

In September 2011 the applicant again applied for leave from prison in order to take up employment. The penitentiary courts refused the application on 31 January 2012. The Government submitted that the medical opinion prepared in this set of proceedings had demonstrated a generally good state of health and the fact that she had been continuously receiving medical attention in prison.

The applicant complained to the prison authorities on many occasions about the conditions of her detention, in particular the allegedly inadequate treatment of her chronic back pain. On each occasion the complaints were dismissed by the authorities as manifestly ill-founded.

The applicant lodged civil claims for compensation against some prisons by way of complaint about the prevailing conditions, for instance the type of cells to which she was assigned, the attitude of the prison guards towards her, etc. There is no evidence that any of those claims referred to the delay before the authorities provided her with a hearing aid.

The provisions pertaining to medical care in detention facilities, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Sławomir Musiał v. Poland (no. 28300/06, §§ 48-61, 20 January 2009); Kaprykowski v. Poland (no. 23052/05, §§ 36-39, 3 February 2009); and the decision in Ostrowski v Poland (dec.), no. 26945/07, 1 September 2015.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the non-enforcement or delayed enforcement of domestic judgments. In application no. 45096/09, the applicant also raised other complaints under the Convention.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1981.

The applicant is a transgender person whose gender is recorded in the civil-status register as female. He stated that he had become aware, even as a child, of feeling that he was male, a feeling that was at variance with his anatomical sex.

On 30 September 2005 the applicant applied to the Mersin District Court (“the District Court”) under Article 40 of the Civil Code seeking authorisation to undergo gender reassignment surgery. In the application instituting the proceedings the applicant’s lawyer gave the following reasons for his client’s request. His client had, since he was a child, regarded himself as male rather than female and for that reason had been receiving psychological counselling since childhood; at the age of nineteen or twenty he had contemplated suicide; his current biological identity was at odds with the gender to which he felt he belonged; and gender reassignment was necessary in order for him to achieve harmony between his private perception of himself and his physical make-up. The lawyer stated that several doctors whom his client had consulted since childhood had recommended gender reassignment. The applicant, who was twenty-four years old, was living as a man, had been in a relationship with a woman for four years and was accepted as a man by his family and friends. The lawyer added that his client had been receiving treatment for the past year in the psychiatric department of İnönü University Hospital with a view to undergoing the gender reassignment surgery that he sought. Lastly, the lawyer requested that the proceedings remain confidential in view of his client’s psychological state.

On 16 December 2005 the District Court granted the request concerning the confidentiality of the proceedings.

On 6 February 2006 the court heard evidence from the applicant’s family. The applicant’s mother stated that as a child her daughter had played mainly with boys and as an adolescent had told her mother that she felt more like a boy and wanted to be one. The applicant’s mother had therefore consulted psychologists, who had expressed the view that her daughter would be happier if she could live as a man, a view which the applicant’s mother shared. The applicant’s older brother also said that his sister had played with boys when she was a child, had started to behave like a boy during adolescence and had had girlfriends, and that she had been determined to undergo gender reassignment by means of surgery. She had made several suicide attempts and was still in therapy. As far as the applicant’s brother was aware, the doctors had decided to go ahead with the operation.

On conclusion of the hearing the District Court sent a request for information to the medical director of the hospital where the applicant was being treated, seeking to ascertain whether the applicant was transgender, whether gender reassignment was necessary to ensure his mental health and whether he was permanently unable to procreate.

On 23 February 2006 a medical committee of İnönü University Medical Centre drew up a psychiatric report which found that the applicant was transgender. The report further found that, from a psychological viewpoint, the applicant should henceforth live with a male identity.

On 28 February 2006 a medical committee of the gynaecology and obstetrics unit of the same medical centre drew up a report which found that Y.Y. had a female phenotype and was transgender.

On 7 April 2006 the District Court examined the two medical reports from İnönü University’s medical faculty. The court observed that the authors of the report of 23 February 2006 had diagnosed the applicant as transgender and had found that, from a psychological viewpoint, he should live henceforth with a male identity, but that the authors of the report of 28 February 2006 had found Y.Y.’s phenotype to be female. However, the court considered that these reports had not answered the questions it had asked, namely whether gender reassignment was necessary in order to ensure the claimant’s mental health and whether the claimant was permanently unable to procreate. The court therefore reiterated its request for information.

On 20 April 2006 the head of the gynaecology and obstetrics unit attached to the surgical department of İnönü University’s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined following a request for a consultation with a plastic surgeon with a view to gender reassignment. She said that an examination had established that Y.Y. had female external and internal genitalia and was not permanently unable to procreate.

On 21 April 2006 a medical committee of the psychiatric department of İnönü University’s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined on 20 April 2006. Following that examination the medical team had concluded that, in the interests of his mental health, the applicant should be allowed to live henceforth with a male identity.

At the District Court hearing of 5 May 2006 the applicant’s lawyer challenged the report of 20 April 2006 on the grounds that it had not been adopted by a collegiate body. The District Court accordingly requested a fresh expert report on the applicant’s ability to procreate. The task of preparing the report was entrusted to a medical committee of Çukurova University’s faculty of medicine.

On 11 May 2006 two doctors from the gynaecology and obstetrics department of Çukurova University’s faculty of medicine carried out an expert assessment and concluded, after examining the applicant, that he was capable of procreating.

On 27 June 2006 the District Court, basing its decision on the findings of the various expert reports, refused the applicant authorisation to undergo gender reassignment, on the ground that he was not permanently unable to procreate and therefore did not satisfy one of the conditions of eligibility for gender reassignment under Article 40 of the Civil Code.

On 18 July 2006 the applicant appealed on points of law against that judgment. In his pleadings the applicant’s lawyer stressed that his client had considered himself since childhood as male rather than female and that this belief was not a mere whim. The applicant had undergone a lengthy course of psychotherapy following which the doctors had concluded that he was transgender and that, from a psychological perspective, it was advisable for him to live as a man. The lawyer further submitted that his client’s ability to procreate did not in any way prevent him from perceiving himself as a man; it was a biological fact over which he had no control. In Turkey as elsewhere in the world, persons who, like the applicant, were unable to reconcile their biological and psychological state were not necessarily single and unable to procreate. There were numerous examples of people who had a predisposition towards transgenderism and who had married and had children before having gender reassignment surgery. It was unfair to make authorisation for a change of biological gender contingent on the ability of the transgender individuals concerned to procreate, whether they considered themselves as men or as women. Accordingly, in refusing to allow the applicant to undergo gender reassignment surgery under Article 40 of the Civil Code – which, in the lawyer’s submission, did not reflect social reality – the courts had restricted his client’s rights and freedoms. The lawyer further alleged that the refusal of the applicant’s request on account of his ability to procreate had been unlawful. In his view, the expression “permanently unable to procreate” should be deleted from the provision in question.

On 17 May 2007 the Court of Cassation upheld the District Court judgment, taking the view that the first-instance court had not erred in its assessment of the evidence.

On 18 June 2007 the applicant’s lawyer lodged an application for rectification of that decision. In his pleadings he submitted that none of the grounds of appeal advanced by the applicant had been taken into account, and that no comment had been made on the official documents and reports included in the file. The lawyer also contested the use of the report of 11 May 2006 prepared by the gynaecology and obstetrics department of Çukurova University’s medical faculty as the basis for rejecting the applicant’s claims. He argued in that regard that the report in question did not have the status of an expert report and had been drawn up following a purely superficial examination of his client’s genital organs that was insufficient to establish his ability to procreate. Even assuming that the various medical reports had sufficed to establish that his client was capable of procreating, the only gender with which his client could identify from a physical and psychological perspective was male. Moreover, that fact had been established on 2 March 2005 in the report of the medical committee of İnönü University, where his client had also been following a long-term course of psychotherapy. The lawyer criticised the failure to take the latter fact into account. Lastly, he submitted that the courts had infringed the applicant’s rights by refusing his request for authorisation to undergo surgery aimed at assigning to him the gender with which he naturally identified.

On 18 October 2007 the Court of Cassation rejected the application for rectification lodged by the applicant, observing that none of the grounds for setting aside enumerated in Article 440 of the Code of Civil Procedure applied in the case at hand.

On 5 March 2013 the applicant lodged a fresh application with the Mersin District Court on the basis of Article 40 of the Civil Code, seeking authorisation to undergo gender reassignment surgery. In his application instituting the proceedings, the applicant’s lawyer gave the following reasons for the request. His client had regarded himself from a young age as male rather than female and for that reason had received psychological counselling since childhood; medical reports had established that, from a psychological viewpoint, it was advisable for him to live henceforth with a male identity; the applicant’s biological identity was at odds with the gender to which he felt he belonged; gender reassignment was necessary to ensure his psychological and mental well-being; on 27 March 2012 he had undergone a double mastectomy and was taking various hormones to increase his testosterone levels; he was working for his brother as a painter and decorator; he went regularly to the gym and had the physical appearance of a man; he was now thirty-two years old and had always regarded himself as a man; the friends he had met after a certain age knew him only as a man; and he did not use the first name indicated on his identity papers. The lawyer added that, in order to bring his physical appearance into line with his perception of himself, his client had resorted to all kinds of methods with damaging side-effects. In his daily life, and especially when he had to produce his identity papers for the authorities, the applicant was subjected to denigrating and humiliating treatment and encountered numerous difficulties because of the discrepancy between his outward appearance and the identity indicated on his papers. The lawyer summed up by requesting the court to allow his client to begin the requisite formalities in order to change his identity in the civil-status register, to grant his client’s request to undergo gender reassignment, to authorise him to undergo gender reassignment surgery and to declare the District Court proceedings confidential.

On 11 April 2013, following a full medical history and examination of the applicant, a committee made up of psychiatrists from İnönü University Medical Centre issued a medical report which found that the applicant was transgender and that gender reassignment was necessary in order to ensure his mental health. The report also stated that an expert assessment should be carried out to establish whether the applicant was permanently unable to procreate.

On 6 May 2013 a forensic medical report was drawn up by a committee from the forensic medicine department of İnönü University Medical Centre. According to the report, during the examination carried out on 11 April 2013 in the forensic medical department, the applicant had stated that he wished to undergo gender reassignment surgery and had already taken steps to that end in the past but had had his claims rejected by the courts. He had then applied to the European Court of Human Rights and had since brought a fresh action. The medical examination had shown that the applicant had a male phenotype (all his external characteristics). He had a beard and a moustache, his breast tissue had been surgically removed and he was receiving treatment following that operation. He had male hair growth on his arms and legs, was undergoing hormone treatment and was embarrassed by the colour of his identity card and had therefore covered it before putting it in his wallet. Lastly, the applicant had stated that reassignment was a necessity for him.

According to the report, blood tests had revealed that the applicant had a total testosterone count of more than 16,000 ng/dl, presumably linked to the hormone treatment he was taking. However, this did not mean that he was permanently unable to procreate.

The report concluded as follows:

“1. [The applicant] is transgender;

gender reassignment is necessary for his mental health;

[he] is not permanently unable to procreate (as a woman) ...”

On 21 May 2013 the Mersin District Court granted the applicant’s request and authorised the gender reassignment surgery which he sought. In its reasoning, the District Court found it established that the applicant was transgender, that gender reassignment was needed to ensure his mental health, and that it was clear from the evidence of the witnesses called by the applicant that he lived as a man in every respect and suffered as a result of his situation. Accordingly, in view of the evidence and of the reports produced, the conditions set forth in Article 40 § 2 of the Civil Code were satisfied and the request should be granted. The judgment specified that it was final.


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

Ms Fatma Nuray Uncuoğlu (“the first applicant”) was born in 1945 and lives in Istanbul. Ms Nurcihan Uncuoğlu (“the second applicant”) was born in 1940 and also lives in Istanbul.

The applicants each owned a share in respective plots of land in the area of Firuzköy, in the district of Avcılar, Istanbul.

On 24 December 1987, a new zoning plan was put into force in the area of Firuzköy, which encompassed the applicants’ plots of land. Under the new plan, the plots of land were designated as “university area”. Subsequently, in 1988, 1989, 1990 and 1991, annotations (şerhler) were made in the land registry records indicating that the applicants’ land would be expropriated by Istanbul University (hereinafter “the University”).

On 26 March 1998 the applicants both asked the University to either expropriate the disputed land or to remove the annotations from the land registry records. The University informed the applicants, on 27 April 1998 and 28 April 1998 respectively, that the expropriation proceedings would commence when the necessary funding was provided.

On 20 July 2001 the applicants initiated respective proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for de facto expropriation.

On 12 December 2003, relying on expert reports which had indicated that the applicants’ land had been fenced off by the University, the Küçükçekmece Civil Court of First Instance awarded the first applicant 97,125,000,000 Turkish liras (TRL) and the second applicant 37,837,500,000 TRL by way of compensation for de facto expropriation. In its respective judgments, the first-instance court held in particular that the land at issue had been under the effective control of the University and that access to the land was restricted due to the fences that had been built around the land.

On 22 June 2004 the Fifth Civil Division of the Court of Cassation quashed the judgments of the Küçükçekmece Civil Court of First Instance, holding that the land in question had not been controlled or used effectively by the University.

On 24 September 2004 both applicants requested the rectification of the respective decisions dated 22 June 2004. In their petitions, they drew the attention of the Fifth Civil Division of the Court of Cassation to its previous decisions, dated 28 September 1999 and 31 March 2003, in which it had held that neighbouring plots of land in the same area had been de facto expropriated by the University because the latter had built fences around the land and because of the annotations made in the land registry records.

On 12 April 2005 the Fifth Civil Division of the Court of Cassation rejected the applicants’ requests for rectification of the decisions of 22 June 2004. However, it did not express any reason as to why it had reached a different conclusion from its previous decisions dated 28 September 1999 and 31 March 2003.

On 6 October 2005 the Küçükçekmece Civil Court of First Instance complied with the decisions of the Court of Cassation and dismissed the cases.

On 28 November 2005 both applicants filed an appeal, reiterating their argument concerning the contradictory decisions (see paragraph 12 above) delivered by the Fifth Civil Division of the Court of Cassation.

On 27 March 2006 and 4 April 2006 respectively, the Fifth Civil Division of the Court of Cassation dismissed the appeals. In its decisions, it gave no reply to the applicants’ arguments regarding the fact that it had given contradictory judgments in respect of similar cases.

The applicants’ requests for the rectification of the decisions were furthermore rejected and the judgments became final on 28 September 2006 and 3 October 2006 respectively.

On an unknown date the University paid compensation to the second applicant for her plot of land.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Nicolas Bratza;Robert Spano

The applicant was born in 1975 and lives in Ankara.

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.

In the early hours of 28 April 2005 the applicant went to a primary school in the town of Sincan and poured paint on a statue of Atatürk which was situated in the school’s garden. On the evening of the same day, he poured paint on a statue of Atatürk in the garden of another primary school.

On 6 May 2005 he did the same thing in the same two primary schools.

On 8 July 2005 the applicant poured paint on a statue of Atatürk in Sincan town centre.

On 12 September 2005 the applicant went to the same statue in Sincan town centre equipped with a tin of paint, paint thinner and a ladder. As he was about to open the tin of paint he was arrested by police officers and taken to a police station where he was questioned. In a statement taken from him on the same day the applicant was reported as having told the police officers that he had carried out the above-mentioned actions because he resented Atatürk and had expressed his resentment by pouring paint on the statues.

On the same day the applicant was brought before a prosecutor and then a judge, who ordered his detention on remand pending the opening of criminal proceedings against him. In his statement to the prosecutor the applicant maintained that he had carried out his actions to express his “lack of affection” for Atatürk.

In his indictment of 15 September 2005, lodged with the Sincan Criminal Court of First Instance (hereinafter “the trial court”), the Sincan prosecutor charged the applicant with the offence of contravening the Law on Offences Committed Against Atatürk (Law no. 5816; see “Relevant Domestic Law and Practice” below).

In the course of the trial the applicant admitted that he had poured paint on the statues. He told the trial court that he had completed his university studies and qualified as a teacher. However, he had been unemployed for a long time because his application to work as a teacher had not been accepted by the Ministry of Education. He had carried out his offences in order to protest against the Ministry’s decision.

On 10 October 2005 the trial court found the applicant guilty as charged. Having regard to the fact that the offence was committed in a public place and on a number of occasions, the trial court sentenced him to three years’ imprisonment instead of the minimum term of imprisonment applicable under Law no. 5816, which is one year. The fact that the offence had been committed in a public place also led the trial court to increase the sentence by half in accordance with section 2 of Law no. 5816. The trial court also considered that the applicant had committed the offence on five separate occasions, and decided to multiply the sentence by five. The applicant was thus sentenced to a total prison term of twenty-two years and six months for his above-mentioned actions.

The applicant appealed. In his appeal he argued that, according to the provisions of the Criminal Code, only one sentence should have been imposed on him because, regardless of the fact that he had poured paint on the statues on five occasions, he had in fact only committed one offence and not multiple offences. In support of his argument, he submitted that his five actions had been carried out within a short span of time.

The applicant also pointed out that, instead of imposing on him the minimum one-year prison sentence provided for in Law no. 5816 in respect of each offence, the trial court had handed down a three-year sentence because it had had regard to the number of times he had poured paint on the statues. The trial court had then gone on to rely on the frequency of his actions when multiplying the sentence by five.

The applicant also challenged the trial court’s reliance on section 2 of Law no. 5816 when increasing his sentence by half because the offence had been committed in a public place. He drew the Court of Cassation’s attention to the fact that, by their nature, statues are placed in public places.

The applicant added that he had carried out his actions in order to express his “lack of affection” for Atatürk. As such, he had remained within the boundaries of his right to freedom of expression, which was guaranteed by Article 10 of the Convention. Thus, although it would have been reasonable to prosecute and punish him for damaging property, he had in fact been punished for expressing his opinions.

On 6 April 2006 the Court of Cassation rejected the applicant’s argument that he had been expressing his opinion, but quashed the trial court’s judgment on the ground of, inter alia, that court’s failure to give adequate consideration to the possibility that the five separate incidents could form only one offence and not multiple offences. The Court of Cassation considered that the applicant had carried out his actions in order to protest against the Ministry of Education’s decision not to appoint him as a teacher. The case file was sent back to the trial court.

In its decision of 5 July 2006 the trial court agreed with the Court of Cassation’s conclusion, and held that the applicant’s actions had amounted to a single offence and not five offences. However, having regard, inter alia, to the “contradictory reasons” put forward by the applicant as justification for his actions, as well as “the effects of his actions on the public”, the trial court concluded that the applicant’s actions had amounted to “insults”, and deemed it fit to sentence him to five years’ imprisonment, which is the maximum allowed under Law no. 5816. The sentence was then increased by half because the acts had been committed in a public place. Furthermore, pursuant to Article 43 of the Criminal Code (see “Relevant Domestic Law and Practice” below), the sentence was further increased by three quarters. The applicant was thus sentenced to a total of thirteen years, one month and fifteen days’ imprisonment.

Furthermore, in its decision the trial court set out the restrictions under section 53 of the Criminal Code which were to be placed on the applicant on account of his conviction. Accordingly, until the execution of his sentence, the applicant was banned from, among other things, voting and taking part in elections, as well as from running associations, parties, trade unions and cooperatives (see “Relevant Domestic Law and Practice”).

The applicant appealed and repeated his arguments under various provisions of the Convention. He maintained, in particular, that he had carried out his actions in order to express his “lack of affection” for Atatürk and had thus exercised his freedom of expression guaranteed in Article 10 of the Convention.

The appeal was dismissed by the Court of Cassation on 5 February 2007. No mention was made in the Court of Cassation’s decision of the arguments raised by the applicant about his freedom of expression.

According to a document drawn up by the prosecutor on 16 April 2007 setting out the details of the applicant’s prison sentence, the date of the applicant’s release from prison was set as 22 October 2018, with a possibility of release on 7 June 2014 for good behaviour.

In the meantime, on 1 June 2005 the Law on the Execution of Prison Sentences and Other Security Measures (Law no. 5275) entered into force. This law sets out the circumstances in which prisoners can benefit from early release.

On 15 May 2007 the prosecutor responsible for the prison the applicant was serving his sentence in wrote to the trial court and asked for guidance in calculating the date of the applicant’s possible early release. The prosecutor stated that, for offences committed before 1 June 2005, Law no. 647 was applicable and, for offences committed after that date, the new Law no. 5275 would be applicable. The applicant had carried out his actions both before and after that date.

On 16 May 2007 the trial court considered that the critical date was the date of the commission of the final act and thus the new law was applicable.

The applicant lodged an objection against that decision and argued that most of his actions had been carried out before 1 June 2005 and that therefore, when calculating his prison sentence, the old law should be taken into account. If his prison sentence were calculated in accordance with the new law, he would spend four more years in prison. That objection was rejected by the trial court on 18 June 2007 and the date of the applicant’s possible release from prison was calculated in accordance with the document drawn up by the prosecutor on 16 April 2007 (see paragraph 24 above).

A request made by the applicant to the Ministry of Justice for his conviction to be quashed and another request to the Court of Cassation to rectify the judgment were rejected on 28 September 2007 and 28 December 2007 respectively.

On 11 June 2013 the applicant was released conditionally.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1972 and lives in St Petersburg.

On 4 June 2010 the applicant was arrested on suspicion of robbery committed in an organised group.

On 5 June 2010 the Vyborgskiy District Court of St Petersburg (“the District Court”) remanded the applicant in custody. The District Court relied on the particularly serious nature of the crime with which the applicant had been charged and his position on the merits of the arrest and the charges brought against him. The court also relied on the risk that he might flee from the investigating authorities and the court, exert pressure on victims, witnesses and other participants in the criminal proceedings, or otherwise hamper the administration of justice in the case.

On 4 August 2010 the District Court extended the applicant’s detention until 24 August 2010.

On 20 August and 23 August 2010, at the request of the applicant’s lawyer, the District Court adjourned the review of the applicant’s detention until 23 August and 24 August 2010, respectively.

On 24 August 2010 the applicant retained another lawyer to defend him. The newly appointed lawyer joined the proceedings at 4 p.m. on the same day.

On 24 August 2010 the applicant’s lawyer asked the District Court to adjourn the hearing until 25 August 2010 so as to enable her to review the prosecution material and discuss her position with the applicant. The judge refused to adjourn the hearing until 25 August 2010, but granted a two-hour adjournment until 6 p.m.

On 24 August 2010 the District Court extended the applicant’s detention until 24 November 2010, having found no grounds for altering or lifting the custodial measure and having taken note of the particular complexity of the case. The applicant’s argument to the effect that no investigative measures were being carried out with his participation was rejected with reference to the investigator’s discretion to lead the investigation.

The applicant appealed against the above decision, claiming, inter alia, that the two-hour adjournment of the hearing on 24 August 2010 had not permitted him to consult his lawyer in private; nor had it allowed his lawyer to have sufficient time to review the prosecution material.

On 11 October 2010 the St Petersburg City Court (“the City Court”) found that there were no reasons to vary the preventive measure, and it upheld the decision of 24 August 2010 on appeal. The City Court held that the two-hour adjournment granted by the District Court had been sufficient for studying the prosecution file consisting of 153 pages. Most of the file consisted of procedural documents concerning issues relating to the institution of the criminal proceedings, the extension of the time-limit for the investigation, the joinder of criminal cases, and documents which had been previously handed to the applicant. Besides, all these documents had been examined in the hearing on 24 August 2010. As regards the applicant’s complaint as to his inability to have a confidential exchange with his lawyer before the hearing of 24 August 2010, the City Court held that the applicant and his lawyer had been given the opportunity to communicate in the courtroom. However, they had refused to communicate in such conditions. This did not amount to a breach of the applicant’s right to defence, because the applicant’s lawyer could have had a confidential meeting with the applicant in the remand prison without any restrictions, and they could have developed their defence position beforehand. In any event, the hearing could not have been adjourned until 25 August 2010, since the time-limit for the applicant’s detention had been due to expire on 24 August 2010, and therefore the decision on the preventive measure had had to be taken before then. Both the applicant and his lawyer participated in the appeal hearing.

On the same date, 11 October 2010, charges in respect of two counts of large-scale robbery committed in an organised group under Article 161 § 3 (a) and (b) of the Russian Criminal Code were brought against the applicant.

On 15 October 2010 the applicant and his lawyer were informed that the pre-trial investigation had been terminated, and on 16 November 2010 they were given access to the case file.

On an unspecified date in November 2010 the District Court extended the applicant’s detention until 24 February 2011.

On 21 February 2011 the applicant’s lawyer was informed that a review of the preventive measure was to take place on the following day.

On 22 February 2011 the applicant’s lawyer did not appear for the hearing. The applicant asked the court to adjourn the hearing owing to the lawyer’s illness. However, the adjournment was refused. Legal aid counsel was appointed for the applicant.

On 22 February 2011, reiterating the reasons which had prompted the application of the custodial measure in the applicant’s case, the District Court extended the applicant’s detention until 24 May 2011 pending examination of the case file.

The applicant appealed, complaining, inter alia, about the refusal to adjourn the hearing so as to enable his lawyer to defend him.

On 6 April 2011 the City Court found that there were no reasons to vary the preventive measure, and it upheld the decision of 22 February 2011 on appeal. As regards the applicant’s complaint regarding the alleged violation of his right to defence by the refusal to adjourn the hearing of 22 February 2011, the City Court held that the applicant’s lawyer had failed to prove her sickness by providing a medical certificate. This made the examination of the issue of the applicant’s detention in her absence lawful under domestic law, as legal aid counsel had been appointed for the applicant. Both the applicant and his lawyer participated in the appeal hearing, the applicant by means of a video link from the remand prison.

On 30 May 2011 the District Court further extended the applicant’s detention until 24 August 2011 pending examination of the case file. The court noted that the grounds which had prompted the application of the custodial measure in the applicant’s case had not changed, and referred to the considerable size of the case file, a case file which neither the applicant, nor his co-defendants or their lawyers had been able to examine in full.

On 28 June 2011 the City Court upheld the above decision on appeal.

On 11 January 2013 the City Court acquitted the applicant of all charges in a jury trial. The judgment became final on 23 July 2013.

Between 5 June 2010 and 29 July 2011 the applicant was held in remand prison IZ-47/4 in St Petersburg. The prison was overcrowded. Thus, cell 76, measuring 18 sq. m, was equipped with eight sleeping places and accommodated up to ten inmates, and cell 145, measuring 18 sq. m, was designed for eight people and housed up to ten individuals. Cell 164, measuring 15 sq. m, offered six places, and up to six detainees occupied those places.

As mentioned above, on 6 April and 28 June 2011 respectively the City Court examined the applicant’s appeals against the decisions of the District Court of 22 February and 30 May 2011 extending his detention. He participated in the appeals by means of a video link from the remand prison, where he was confined in a metal cage.