Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Angelika Nußberger;Dean Spielmann;George Nicolaou;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva

The facts of the case, as submitted by the parties, may be summarised as follows. Where certain facts are in dispute, each party’s version of events is set out.

On 20 March 2003 a coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq from their assembly point across the border with Kuwait. By 5 April 2003 British forces had captured Basrah and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003.

Prior to the invasion, the applicant was a general manager in the national secretariat of the Ba’ath Party and a general in the Al-Quds Army, the army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah, near the border with Kuwait and about 50 kilometres from Al-Basrah (Basrah City). After the British army entered into occupation of Basrah, they started arresting high ranking members of the Ba’ath Party. Other Ba’ath Party members were killed by Iraqi militia. The applicant and his family therefore went into hiding, leaving the applicant’s brother, Tarek Resaan Hassan (henceforth, “Tarek Hassan”), and his cousin to protect the family home.

According to information given by the Government, members of a British army unit, the 1st Battalion The Black Watch, went to the applicant’s house early in the morning of 23 April 2003, hoping to arrest him. The applicant was not there, but the British forces encountered Tarek Hassan, who was described in the contemporaneous report drawn up by the arresting unit (“the battalion record”) as a “gunman”, found on the roof of the house with an AK-47 machine gun. The battalion record indicated that the “gunman” identified himself as the brother of the applicant and that he was arrested at approximately 6.30 a.m. It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value, related to local membership of the Ba’ath Party and the Al-Quds Army.

According to a statement made by the applicant and dated 30 November 2006, Tarek Hassan was arrested by British troops on 22 April 2003, in the applicant’s absence. According to this statement, “When my sisters approached the British military authority they were told that I had to surrender myself to them before they would release my brother”. In a later statement, dated 12 September 2008, the applicant did not mention his sisters but instead stated that he asked his friend, Saeed Teryag, and his neighbour Haj Salem, to ask British forces for information about Tarek Hassan. The applicant asked these friends because he could trust them; Haj Salem was a respected businessman and Saeed Teryag had been to university and spoke English. According to the applicant, “[W]hen they approached the British military authorities the British told them I had to surrender myself to them before they would release my brother”.

According to a summary of a telephone interview with the applicant’s neighbour, Mr Salim Hussain Nassir Al-Ubody, dated 2 February 2007, Tarek Hassan was taken away by British soldiers on an unknown date in April at around 4.30 a.m., with his hands tied behind his back. Mr Al-Ubody stated that he approached one of the Iraqis who accompanied the soldiers to ask what they wanted, and was told that the soldiers had come to arrest the applicant. Three days later, the applicant telephoned Mr Al-Ubody and asked him to find a guard for his house and to find out from the British army what had happened to Tarek Hassan. Two days later, Mr Al-Ubody went to the British headquarters at the ShattAlArab Hotel. He asked an Iraqi translator if he could find out anything about Tarek Hassan. Two days later, when Mr Al-Ubody returned, the translator informed him that the British forces were keeping Tarek Hassan until the applicant surrendered. The translator further advised Mr Al-Ubody not to return, as this might expose him to questioning.

Both parties agreed that Tarek Hassan was taken by British forces to Camp Bucca. This Camp, situated about 2.5 kilometres from Umm Qasr and about 70 kilometres south of Al-Basrah was first established on 23 March 2003 as a United Kingdom detention facility. However, it officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. In April 2003 the Camp was composed of eight compounds, divided by barbed wire fencing, each with a single entry point. Each compound contained open-sided tents capable of housing several hundred detainees, a water tap, latrines and an uncovered area.

For reasons of operational convenience, the United Kingdom continued to detain individuals they had captured at Camp Bucca. One compound was set aside for internees detained by the United Kingdom on suspicion of criminal offences. In addition, the United Kingdom operated a separate compound at the Camp for its Joint Forward Interrogation Team (JFIT). This compound had been built by British forces and continued to be administered by them. Although detainees captured by both the United Kingdom and the United States armies were interrogated at the JFIT compound, and teams of United Kingdom and United States interrogators worked there, the United Kingdom JFIT team controlled the detention and interrogation of all prisoners held there. Elsewhere in the Camp, the United States army was responsible for guarding and escorting detainees and the United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at the Camp. The British Military Provost Staff (military police) had an “overseeing responsibility” for United Kingdom detainees transferred to United States custody, except those detained in the JFIT compound. United Kingdom detainees who were ill or injured were treated in British field hospitals. The United Kingdom authorities were responsible for liaising with the International Committee of the Red Cross (ICRC) about the treatment of United Kingdom detainees and the notification of their families regarding the detention (see further paragraph 20 below). The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention (see paragraph 33 below).

In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, on 23 March 2003 the United Kingdom, United States and Australian Governments entered into a Memorandum of Arrangement (“MOA”) relating to the transfer of custody of detainees, which provided as follows:

“This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq.

The Parties undertake as follows:

This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law.

US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power.

Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees.

Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power.

The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.

The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.

The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over.

The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement.

The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power.

Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined.

To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction.

Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power.

The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement.

At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.”

According to the witness statement of Major Neil B. Wilson, who served with the Military Provost Staff at Camp Bucca during the period in question, the usual procedure was for a detainee to arrive at the Camp with a military escort from the capturing unit. On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him. Medical treatment would be provided at this point if required. The detainee would then be processed through the arrivals tent by United Kingdom personnel with the aid of an interpreter. A digital photograph would be taken and this, together with other information about the detainee, would be entered on the database used by the United Kingdom authorities to record a wide range of military personnel information during the operations in Iraq, including detainee information, known as the AP3-Ryan database.

Examination of this database showed that there was no entry under the name Tarek Resaan Hassan but there was an entry, with a photograph, for “Tarek Resaan Hashmyh Ali”. In his witness statement the applicant explained that for official purposes Iraqis use their own first name, followed by the names of their father, mother, grandfather and great-grandfather. “Ali” was the applicant’s great-grandfather’s name and it appeared that Hassan (his grandfather’s name) was omitted by mistake. Tarek Hassan was issued with a wristband printed with his United Kingdom internment serial number UKDF018094IZSM; with “DF” denoting “detention facility”, “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. Screen shots from the AP3-Ryan database also show that Tarek Hassan was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this.

Following the United Kingdom registration process, detainees would be transferred to the United States forces for a second registration. This involved the issue of a United States number, printed on a wrist band. Tarek Hassan’s United States registration number was UK912-107276EPW46. The “UK” reference indicated that the United Kingdom was the capturing nation and “EPW” indicated that he was treated by the United States forces as an enemy prisoner of war; however, at this stage all detainees were classified as prisoners of war except those captured by British forces on suspicion of having committed criminal offences. After registration, detainees were usually medically examined, then provided with bedding and eating and washing kits and transferred by United States forces to the accommodation areas.

The Government submitted a witness statement by Mr Timothy Lester, who was charged with running the United Kingdom Prisoner of War Information Bureau (UKPWIB) in respect of Iraq from the start of military operations there in March 2003. He stated that the UKPWIB operated in Iraq as the “National Information Bureau” required by Article 122 of the Third Geneva Convention and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their nextof-kin. The Third Geneva Convention also required the establishment of a “Central Prisoners of War Information Agency”. This role was subsumed by the Central Tracing Agency of the International Committee of the Red Cross (ICRC). The ICRC collected information about the capture of individuals and, subject to the consent of the prisoner, transmitted it to the prisoner’s country of origin or the power on which he depended. In practice, details of all prisoners taken into custody by British forces were entered by staff at the detention facility in Iraq and sent to Mr Lester in London, who then transferred the data to a spread-sheet and downloaded it to the ICRC’s secure website. He stated that during the active combat phase he typically passed data to the ICRC on a weekly basis, and monthly thereafter. However, Tarek Hassan’s details were not notified to the ICRC until 25 July 2003, because of a delay caused by the updating of UKPWIB computer system. In any event, it was noted on Tarek Hassan’s record that he did not consent to the Iraqi authorities being notified of his capture (see paragraph 18 above). In the absence of consent, Mr Lester considered it unlikely that the ICRC would have informed the Iraqi authorities and that those authorities would, in turn, have informed the Hassan family.

According to the Government, where the status of a prisoner was uncertain at the time of his arrival at Camp Bucca, he would be registered as a prisoner of war by the United Kingdom authorities. Any detainee, such as Tarek Hassan, captured in a deliberate operation was taken immediately to the JFIT compound for a two-stage interview. According to the Government, there were United Kingdom and United States interrogation teams working in the JFIT compound, and both teams interviewed both United Kingdom- and United States-captured detainees. The first interview may have been undertaken simply by whichever team was available when the detainee arrived. The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and, where it was established that the detainee was a non-combatant, whether there were grounds to suspect that he was a security risk or a criminal. If no such reasonable grounds existed, the individual was classified as a civilian not posing a threat to security and ordered to be released immediately.

A print-out from the JFIT computer database indicated that in Camp Bucca Tarek Hassan was assigned JFIT no. 494 and registration no. UK107276. His arrival was recorded as 23 April 2003 at 16.40 and his departure was recorded as 25 April 2003 at 17.00, with his “final destination” recorded as “Registration (Civ Cage).” Under the entry “Release/Keep” the letter “R” was entered. Under the heading “TQ”, which stood for “tactical questioning”, there was the entry “231830ZAPR03Steve” and under the heading “Intg 1” was the entry “250500ZAPR03”. According to the Government, the first of these entries meant that Tarek Hassan was first subjected to tactical questioning on 23 April 2003 at 18.30 Zulu (“Zulu” in this context meant Coordinated Universal Time, also known as Greenwich Mean Time). On 23 April, 18.30 Zulu would have been 21.30 Iraqi time. The second entry indicated that Tarek Hassan was again subject to questioning on 25 April 2003 at 5.00 Zulu, or 8.00 local time and then released into the civilian pen at Camp Bucca at 20.00 local time on 25 April 2003.

The Government provided the Court with a copy of a record of an interview between Tarek Hassan and United States agents, dated 23 April 2003, 18.30 Zulu, which stated as follows:

“EPW [Enemy Prisoner of War] was born in BASRA on August 3, 1981. He currently resides in his home with his father, mother, older brother (Name: Qazm; born in the 1970s), and his little sister (age; unexploited). Home is across from the Khalissa school in the Jamiyat region in N. BASRA. EPW left middle school as a recruit to play soccer. He currently plays in the Basra Soccer Club and his position is attacker/forward. His team receives money from the government and the Olympic committee to pay for team expenses. EPW has no job since soccer is his life and they pay for all of his soccer expenses.

EPW knows that he was brought in because of his brother, Qazm. Qazm is a Othoo Sherba in the Ba’ath party and he fled his home four days ago to an unknown destination. Qazm joined the Ba’ath party in 1990 and is involved in regular meetings and emergency action planning (nothing else exploited). Before the war, Qazm received a pickup from the Ba’ath party. When the coalition forces entered BASRA, Qazm gave the pickup to a neighbour (name not exploited) to safeguard it and Qazm went to a hotel in downtown BASRA (name of hotel is unknown). Qazm made a few phone calls during that time, but never mentioned where he was staying. A problem arose when the original owners of the pickup, the local petroleum company, came to reclaim the vehicle they had lent the Ba’ath party. Qazm became frustrated with the whole mess and fled soon after that.

EPW seems to be a good kid who was probably so involved with soccer that he didn’t follow his brother’s whereabouts all that much. But it seems they have a close knit family and EPW could know more about his brother’s activities in the Ba’ath party, and some of his friends involved in the party, too. Using any type of harsh approach is not going to be effective. EPW loves his family and soccer. EPW will cooperate, but he needs someone he can trust if he’s going to tell information about his brother that is going to harm him. EPW seems to be innocent of anything himself, but may help with information about others around him.”

A record of the second questioning was provided by the Government in the form of a Tactical Questioning Report. This document indicated that it related to “PW 494” with the “date of information” recorded as “250445ZAPR03”, that is 4.45 Zulu or 7.45 local time on 25 April 2003. The report stated:

“1. EPW [Enemy Prisoner of War] is 22 years old, single, living with his 80 year old father (who is a Sheik) and his mother in the Jamiyet district of BASRAH. He works as a handyman and has not done his military service due to his status as a student. He stated that an AK 47 was present in their house at the time of his arrest but it was only kept for personal protection. The EPW and his father are not Ba’ath Party members.

EPW says he was arrested at his house by United States troops [sic] who were looking for his brother, Kathim. His brother is a Ba’ath Party member, an Uthoo Shooba. He joined the party in 1990 when he became a law student in the school of law in the Shaat Al Arab College. His brother is still a student, in his last year of study, married but with no children. He has alternated study with periods of work as a car trader. His brother was in fear of his life because of fear of reprisals against Ba’ath Party members and so had run away possibly to SYRIA or IRAN. The EPW last spoke with his brother 5 days ago by phone. His brother did not disclose his location.

JFIT COMMENT: EPW appears to be telling the truth and has been arrested as a result of mistaken identity. He is of no intelligence value and it is recommended that he is released to the civilian pen. JFIT COMMENT ENDS.”

The applicant submitted a summary of an interview dated 27 January 2007 with Fouad Awdah Al-Saadoon, the former chairman of the Iraqi Red Crescent in Basrah and a friend of the applicant’s family. He had been arrested by British troops and detained at Camp Bucca, in a tent holding approximately 400 detainees. He stated that on 24 April 2003 at around 6 p.m. Tarek Hassan was brought to the tent. Mr Al-Saadoon stated that Tarek Hassan seemed scared and confused but did not mention that Tarek Hassan complained of having been ill-treated. Tarek Hassan was not interrogated during the time they were together in Camp Bucca. Since Mr Al-Saadoon was in ill-health, Tarek Hassan brought him food and cared for him. Mr Al-Saadoon was released on 27 April 2003, in a batch of 200 prisoners, since the United Kingdom authorities had decided to release all detainees aged 55 or older. The detainees were released at night, on a highway between Al-Basrah and Al-Zubair and had to walk 25 miles to the nearest place they could hire cars. Following his release, he informed the applicant’s family that he had seen Tarek Hassan at Camp Bucca. According to the applicant, this was the only information received by the family about his brother’s whereabouts following the latter’s arrest. In response to this statement, the Government submitted that Mr Al-Saadoon might have been mistaken about the date, because it appeared from the interrogation records that Tarek Hassan was released to the civilian holding area on 25 April 2003. They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested, and that 25 miles was much greater than the distance between Al-Basrah and Al-Zubair.

According to the witness statement, provided by the Government, of Major Neil Wilson, who commanded a group of soldiers from the Military Provost Staff who advised on detention issues within the United Kingdom area of operations in Iraq during the relevant period, the decision to release United Kingdom captured detainees held at Camp Bucca, other than those facing criminal charges, was taken by a tribunal convened by United Kingdom military legal officers. Details were then passed to the United States guards, before those released were processed out of the Camp, with their details checked and entered on the AP3Ryan database. According to the orders made by the United Kingdom’s Military Divisional Headquarters based in Basrah and applying at that time, the United States forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the United Kingdom forces were responsible for returning prisoners to areas within their field of operation, namely South East Iraq, regardless of which force had captured the prisoners. The ICRC was to have access to all those being released. Again according to the applicable orders, prisoners repatriated by British forces were to be loaded on to buses with armed guards on-board and armed military escort vehicles to the front and rear. Release was to be to specific repatriation points in daylight hours, with sufficient food and water to last the individuals being released until they got home. According to the evidence of Major Wilson, efforts were made to return individuals to their point of capture. There were four drop-off points within the United Kingdom field of operation, including “Al-Basrah GR TBC [grid reference to be confirmed]”. Umm Qasr was not listed as a dropoff point but could be entered as a point of release on the records of individuals being processed for release.

The Government also submitted a military order dated 27 April 2003 (FRAGO 001/03), the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities (which was subsequently announced on 1 May 2003). The annex to the order set out the procedures to be followed. A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals; they had already been identified by JFIT, with the decision recorded on the AP3-Ryan database, and a list given to the United States authorities to ensure they were not released. The remaining population would stay within the individual compounds and await release processing by the United Kingdom authorities. At the processing tent, a three-point check would be made of each detainee’s wrist-band, face and digital profile held on AP3-Ryan. The following information was then required to be entered into the database: “(1) Releasing Force Element; (2) Release Date; (3) Releasing Nation; (4) Selected Place of Release.” The text of the order itself referred to four dropoff points (Al-Basrah, Najef, Al-Kut and An Nasariah (the latter three towns were to the north of Al-Basrah), but the annex listed in addition Um Qasr (south of Al-Basrah and 2.5 kilometres from the Camp) as a drop-off point. The United Kingdom forces would then retain the detainee’s identity card and pass him back to the United States authorities for final processing, including the issue of food and water and the return of personal belongings. Four holding areas would be established, “one for each release location”, from which the detainees would then be transported to the agreed repatriation points and released in daylight hours. The order also required a final audit to be conducted to check that all United Kingdom detainees listed on the AP3-Ryan database had either been released or continued to be detained. Should the record be identified of any person who had neither been released nor detained, a board of inquiry had to sit to determine what had happened.

In addition, the Government submitted a witness statement dated 29 October 2007 by Warrant Officer Class 2 Kerry Patrick Madison, who had responsibility for the management of the AP3-Ryan database. He stated that by 22 May 2003 AP3-Ryan showed that the United Kingdom forces had captured and processed 3,738 detainees in Iraq since the start of hostilities and had released all but 361. Annexed to Warrant Officer Madison’s statement were a number of screen prints showing entries on the database relating to Tarek Hassan. They showed that an entry was made on AP3-Ryan on 4 May 2003 at 1.45 p.m. recording the release of “Tarek Resaan Hashmyh Ali” at 00.01 on 2 May 2003. The releasing authority was stated to be “United Kingdom (ARMD) DIV SIG REGT”; the place of release was stated to be “Umm Qasr”; the method of release was “By Coach” and the ground of release was recorded as “End of Hostilities”. A further entry was made in the United Kingdom AP3-Ryan system on 12 May 2003 at 10.13 p.m. recording that: “PW was found to be absent from the internment facility when 100% check was conducted. PW was released on AP3 on 12 May 03”. According to the Warrant Officer Madison, some 400 individuals’ records included the statement “PW was released on AP3 on 12 May 03”, when they had in fact been released earlier and it was therefore likely that the Camp’s computer release records were brought up to date on 12 May following a physical check. The United States computer system did not record any release until 17 May 2003 but again, according to the Government, this was probably explained by a reconciliation of the United States Camp Bucca database with a physical check of occupants of the Camp by the United States authorities on 17 May.

According to the applicant, Tarek Hassan did not contact his family during the period following his purported release. On 1 September 2003 one of the applicant’s cousins received a telephone call from a man unknown to them, from Samara, a town north of Baghdad. This man informed them that a dead man had been found in the nearby countryside, with a plastic ID tag and piece of paper with the cousin’s telephone number written on it in the pocket of the sport’s top he was wearing. According to the applicant, Tarek Hassan was wearing sportswear when he was captured by British forces. The applicant’s cousin called him and, together with another brother, the applicant went to the forensic medical station of the Tekrit General Hospital in Samara. There they saw the body of Tarek Hassan with eight bullet wounds from an AK-47 machine gun in his chest. According to the applicant, Tarek Hassan’s hands were tied with plastic wire. The identity tag found in his pocket was that issued to him by the United States authorities at Camp Bucca. A death certificate was issued by the Iraqi authorities on 2 September 2003, giving the date of death as 1 September 2003, but the sections reserved for the cause of death were not completed. A police report identified the body as “Tariq Hassan” but gave no information about the cause of death.

The applicant remained in hiding in Iraq until October 2006, when he crossed the border to Syria. In November 2006, through a representative in Syria, he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s Treasury Solicitors on 21 December 2006 requesting explanations for the arrest and detention of Tarek Hassan and the circumstances that resulted in his death. It took some time to identify the applicant’s brother, because he was entered in the Camp Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see paragraph 18 above). However, in a letter dated 29 March 2007 Treasury Solicitors stated that a check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek Hassan from the United Kingdom authorities to the United States authorities at Camp Bucca and which recorded his release on 12 May 2003.

The applicant commenced proceedings in the High Court on 19 July 2007 seeking declarations in respect of breaches of his brother’s rights under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al-Skeini (see further the summary of the House of Lords’ judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it could not be said that Tarek Hassan was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the House of Lords had recognised a number of exceptions to the general rule that a State did not exercise jurisdiction extra-territorially, but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by the Contracting State. The judge’s analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca was a United States rather than a United Kingdom military establishment, for the following reasons:

“... It is plain that the detaining power [the United Kingdom] relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power [the United States]. As regards adjudications concerning the individual’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.”

The applicant was advised that an appeal would have no prospect of success.

The applicant contended that the evidence of his sisters, friend and neighbour demonstrated that his brother was captured and detained by British forces with the purpose of inducing the applicant to surrender himself. The first reference made by the Government to the battalion record, which referred to Tarek Hassan’s arrest (see paragraph 11 above), was in its observations to the Grand Chamber in September 2013. No good explanation for the recent appearance of this material had been provided, which was surprising given the emphasis placed on the document by the Government. The applicant made no admissions as to whether or not he accepted it was genuine. He underlined, also, that it was the sole document to make any reference to Tarek Hassan’s having been found in possession of an AK-47 machine gun and positioned on the roof. Neither of the records of his interviews (see paragraphs 23-24 above) referred to his having been detained as a suspected combatant or having posed any threat, real or suspected, to British forces at any time.

The applicant further contended that the Camp Bucca computer detention records recorded three different release dates, none of which appeared reliable (see paragraph 28 above). Similarly, the place of release was a matter of speculation based on unclear and inconsistent evidence (see paragraphs 27-28 above). It could not even be said with any certainty that Tarek Hassan was not still being detained after the search of Camp Bucca on 12 May 2003, given in particular the release date entered on the United States records. The applicant pointed out that his brother was found dead with the United States Camp Bucca identity tag still on him (see paragraph 29 above) and that he had not contacted his family at any point after he had been captured by United Kingdom forces, which strongly suggested that he had had no opportunity to do so.

The Government submitted that the applicant had not established an adequate justification for the delay in raising his complaints with the United Kingdom authorities. The delay had imposed an inevitable impediment to the effective investigation of Tarek Hassan’s death. No adverse inferences should be drawn from the Government’s inability to provide an explanation for Tarek Hassan’s death in circumstances where the evidence provided a satisfying and convincing explanation of his arrest, detention and release.

The Government denied the allegation that Tarek Hassan was detained as a means of putting pressure on the applicant to surrender. They contended that the evidence submitted by the applicant in support of this claim was imprecise and hearsay and that such a purpose on the part of the United Kingdom authorities would have been inconsistent with Tarek Hassan’s subsequent release from Camp Bucca as soon as his status had been established as a civilian who did not pose a threat to security. Instead, they contended that it was reasonable for the British forces to suspect Tarek Hassan of being a combatant, since he was found, armed, on the roof of the house of a general of the Al-Quds Army, which house contained other firearms and a number of documents of intelligence value relating to local members of the Ba’ath Party (see paragraph 11 above). The Government further pointed out that, apart from the applicant’s witness statement, there was no independent evidence of the cause of death because this information had not been entered on the death certificate (see paragraph 29 above). In any event, they emphasised that Samara was some 700 kilometres from Camp Bucca, in an area that had never been occupied by British forces, and that the AK-47 machine gun was not a weapon used by British forces.

At the outset, the Court recalls that the domestic proceedings were dismissed on the ground that the applicant’s brother did not fall within the jurisdiction of the United Kingdom at any material time (see paragraph 31 above). It was not therefore necessary for the national courts to establish the facts in any detail. The Court is generally sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, in the present circumstances it is unavoidable that it must make some findings of fact of its own on the basis of the evidence before it.

In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions the Court’s approach to the issues of evidence and proof. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 151, ECHR 2012).

Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (the principle, that is, that the burden of proof lies on the person making the allegation in question). The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government. The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see El Masri, cited above, §§ 152-153).

It is not in dispute in the present case that the applicant’s brother was captured by United Kingdom forces on 23 April 2003, subsequently detained at Camp Bucca and that he died shortly before his body was found in Samara on 1 September 2003. The disagreement over the facts centres on two issues: first, whether Tarek Hassan was arrested and detained as a means of exerting pressure on the applicant to surrender himself and, secondly, in what circumstances Tarek Hassan left Camp Bucca. In addition, since the applicant alleges that Tarek Hassan’s body had marks of ill-treatment on it, the question arises whether he was ill-treated while in detention.

As to the first point, the Court notes that the only evidence before it which supports the claim that Tarek Hassan was taken into detention in an attempt to force the applicant to surrender himself are the two statements made by the applicant and the note of a telephone interview with the applicant’s neighbour, both prepared for the purposes of the domestic proceedings (see paragraphs 12-13 above). In the applicant’s first statement he alleged that his sisters had been told by the British military authority that Tarek Hassan would not be released until the applicant gave himself up. In the second statement, the applicant claimed that this information was given to his neighbour and his friend. In neither of the applicant’s statements, nor that of his neighbour, Mr Al-Ubody, is the representative of the United Kingdom military who made the alleged assertion identified, by name or rank. Given the lack of precision, the hearsay nature of this evidence and the internal inconsistencies in the applicant’s statements, the Court does not find the evidence in support of the applicant’s claim to be strong.

For their part, the Government were not able to present the Court with any witness evidence relating to Tarek Hassan’s capture. However, they provided the Court with the operational log of the Black Watch Battalion which was created contemporaneously with the events in question (see paragraph 11 above). It records that, when British forces arrived at the house, Tarek Hassan was positioned on the roof, armed with an AK-47 machine gun and that other firearms and documents of intelligence value were found in the house. In addition, the Government provided records of interviews at Camp Bucca with Tarek Hassan and screen shots of entries relating to him on the AP3-Ryan database (see, respectively, paragraphs 2324 and 18, 22 and 28 above). The Court has no grounds on which to question the authenticity of these records. They show that Tarek Hassan was registered at Camp Bucca on 23 April 2003, taken to the JFIT compound at 16.40 on 23 April 2003 and released to the civilian holding area of Camp Bucca on 25 April 2003 at 8 p.m. local time. The computer records further show that he was questioned once on 23 April 2003 21.30 local time and again on 25 April at 8 a.m. local time. Records of both interviews have been provided to the Court. They show that Tarek Hassan’s identity as the applicant’s brother was known and that it was established in the course of questioning that he had no personal involvement with the Ba’ath Party or the Al-Quds Army.

In the Court’s view, the capture and questioning records are consistent with the Government’s submission that Tarek Hassan was captured as a suspected combatant or a civilian posing a threat to security. This view is supported by other evidence which tends to show that Tarek Hassan may well have been armed with, or at least in the possession of, an AK-47 machine gun at the moment of his capture, namely the applicant’s assertion that his younger brother had been left to protect the family home (see paragraph 10 above) and Tarek Hassan’s reported explanation, during his interrogation by British agents, of the presence of the weapon as being for personal protection (see paragraph 24 above). The Camp Bucca records further indicate that he was cleared for release as soon as it had been established that he was a civilian who did not pose a threat to security.

The Court accepts that Tarek Hassan’s capture was linked to his relationship with his brother, but only to the extent that the British forces, having been made aware of the relationship by Tarek Hassan himself and finding Tarek Hassan armed at the moment of capture (see paragraph 11 above), may have suspected that he also was involved with the Ba’ath Party and Al-Quds Army. The Court does not find that the evidence supports the claim that Tarek Hassan was taken into custody to be held until the applicant should surrender. If that had been the intention of the United Kingdom forces, he would not have been cleared for release immediately after the second interview and less than 38 hours after his admission to Camp Bucca (see paragraph 22 above).

As regards the date and place of Tarek Hassan’s release, the principal evidence consists of entries from AP3-Ryan (see paragraph 28 above). One entry made on 4 May 2003 recorded that Tarek Hassan had been released on 2 May 2003, by coach, to Umm Qasr, on the ground of the “End of Hostilities”. Another entry on 12 May 2003 found that Tarek Hassan was not present in the Camp when a full check of detainees was made. The Court considers, on the basis of these entries, taken together with the decision made following the second screening interview not to continue to detain Tarek Hassan, that he was in all probability released early in May 2003. This view is further supported by the evidence provided by the Government concerning the policy decision taken by United Kingdom forces to release all detainees prior to or immediately following the cessation of hostilities announced on 1 May 2003, save those suspected of criminal offences or of activities posing a risk to security (see paragraph 27 above). As to the place of release, the Court notes that Camp Bucca was situated only about 2.5 kilometres from Umm Qasr. Although the main text of the relevant military order relating to the release of detainees from Camp Bucca did not list Umm Qasr as a drop-off point (listing only four towns to the north of the Camp), the annex to the order did describe Umm Qasr as a release area. It is impossible to be certain in the absence of more conclusive evidence, but given the town’s proximity to the Camp, its mention in the annex, the United Kingdom policy of releasing detainees following the end of hostilities and the computer entries concerning Tarek Hassan’s release, the Court finds that it is probable that Tarek Hassan was released in or near Umm Qasr on 2 May 2003.

The Court is of the view that, in this case, since the evidence concerning Tarek Hassan’s detention and release was, for the most part, accessible only to the Government, the onus is on them to provide a plausible and satisfactory explanation as to what happened to Tarek Hassan in the Camp and to show that he was released and that the release followed a safe procedure (see paragraph 49 above). The computer records show that by 22 May 2003 the United Kingdom had captured and processed some 3,738 detainees in Iraq since the start of hostilities and had released all but 361 (see paragraph 28 above). In the light of the time that had elapsed before the applicant lodged his claim and the large number of United Kingdom detainees that were released from Camp Bucca around the end of April and the beginning of May 2003, it is unsurprising that no eye witness able to remember Tarek Hassan’s release has been traced. In the circumstances of the present case, the Court finds that the evidence referred to above is sufficient to satisfy the burden of proof on the Government.

Finally, there is no evidence before the Court to suggest that Tarek Hassan was ill-treated while in detention. The interview records show that he was questioned on two occasions, shortly after having been admitted to the Camp, and found to be a civilian, of no intelligence value and not posing any threat to security. The witness statement submitted by the applicant, of Mr Al-Saadoon, who claimed to have seen Tarek Hassan in the civilian holding area in Camp Bucca in the period after he was questioned and before he was released, makes no mention of any sign of injury on Tarek Hassan or any complaint by him of ill-treatment. Moreover, apart from the applicant’s witness statement, there is no evidence before the Court as to the cause of Tarek Hassan’s death or the presence of marks of ill-treatment on his body, since the death certificate contains no information on either point. Assuming the applicant’s description of his brother’s body to be accurate, the lapse of four months between Tarek Hassan’s release and his death does not support the view that his injuries were caused during his time in detention.

Having established the facts of the case, the Court must next examine the applicant’s complaints under the Convention.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Robert Wincenty Hołownia, is a Polish national, who was born in 1958 and lives in Warszawa.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. The applicant was represented by Mr K. Domański, lawyer practising in Warsaw.

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

On 5 November 1999 at 6.20 p.m. the applicant was stopped by the police during a routine traffic check. He was arrested, as there was an arrest warrant pending against him in the context of criminal proceedings concerning, apparently, a minor case of fraud. During the arrest he informed the officers that he suffered from rheumatoid arthritis for which he took medication. He was taken to hospital for a check-up. The results confirmed that he suffered from the condition. The doctor examining him did not find it necessary to prescribe any medication.

The applicant was subsequently taken to a police station, where he spent two nights in a cell. He was given no medication. On 7 November 1999 he was transferred to Warsaw-Mokotów Detention Centre.

His requests to be allowed to take painkillers were refused. He was told that he would be examined by the prison doctor and put in a cell.

On the night of 7 November 1999, at approximately at 2 a.m., the applicant fell off his bed and could not get up. The prison guard called by his cellmate did not enter the cell, but ordered him to help the applicant climb back onto the bed, which the cellmate did. Shortly afterwards the applicant fell off the bed again. He remained on the floor until morning.

At 8 a.m. the applicant could not get up and had difficulty moving. He was taken to see the prison doctor, who diagnosed stroke. It was established that he suffered from rheumatoid arthritis and type 2 diabetes. The applicant was then taken to a nearby hospital for treatment.

The applicant had partial paralysis in one of his arms and legs. On 24 July 2002 he lodged a compensation claim with the Warsaw Regional Court. He claimed 500,000 Polish zlotys (PLN) in respect of alleged pecuniary and non-pecuniary damage on account of the fact that he had been left permanently disabled as a result of the stroke, and PLN 40,000 as reimbursement of his treatment costs. The applicant argued that the conduct of the prison authorities after his arrest on 7 November 1999 had caused his health to deteriorate and left him unable to work. He referred to the refusal of the prison guards to give him anti-inflammatory drugs and painkillers for his rheumatoid arthritis. He further submitted that the prison guards had failed to provide him with any medical assistance during the night in question. Seven to eight hours had passed between the incident and him receiving medical care, which was only offered to him in the morning. He argued that this delay had contributed to the seriousness of his condition. Had he been given assistance earlier, his condition would not have become so serious.

On an unspecified later date the applicant was exempted from the obligation to pay court fees and granted legal aid for the purposes of proceedings before the first- and second-instance courts.

In the course of the proceedings before the first-instance courts, experts in neurology, rheumatology and diabetology confirmed that the applicant suffered from rheumatoid arthritis, although it was noted that he had failed to submit any medical records concerning his treatment prior to the arrest. The rheumatologist stated that, even assuming that the applicant had been treated for the condition prior to his arrest, a three-day interruption in taking the relevant medication could not have caused a stroke. The expert further stated that left untreated, diabetes might have contributed to its occurrence. The neurologist stated that an earlier diagnosis of the stroke could have limited the damage to the applicant’s health.

The applicant’s claim was dismissed on 10 November 2006. In issuing its judgment the Warsaw Regional Court relied on the expert opinions. It noted that the applicant had failed to submit medical records showing that he had been in some form of treatment prior to his arrest. The court found no causal link between the conduct of the prison authorities after the applicant’s arrest and the stroke he had subsequently suffered.

The applicant appealed. He argued, inter alia, that the court had erred by failing to examine whether there had been a causal link between the failure to assist him during the night in question and the condition he had developed as a result of the stroke. He referred to the opinion given by the neurologist (see paragraph 11 above).

On 15 January 2008 the Warsaw Court of Appeal quashed the contested judgment and remitted the case to the lower court. It considered that the first-instance court had failed to establish the facts of the case correctly, in particular as to the applicant’s medical history prior to his arrest. It instructed the lower court to take additional evidence regarding this aspect of the case.

The case was examined again by the Warsaw Regional Court. During these proceedings the court ordered the applicant to restate his claim. The applicant ultimately claimed compensation in the amount of PLN 490,000. He referred to Article 319 § 2 of the Civil Code. This amount covered PLN 450,000 in respect of loss of income and PLN 40,000 for the treatment costs he had borne after the accident. He further claimed a monthly pension of PLN 1,500, referring to Article 444 of the Civil Code.

On 18 November 2009 the Warsaw Regional Court dismissed the applicant’s claim. It found that he had been arrested on 5 November 1999 and placed in detention in Warsaw-Mokotów Detention Centre two days later, on 7 November 1999. He had felt unwell that night and fell out of bed twice. After the first fall his cellmate had helped him up, as directed by the prison guard. When he had fallen out of bed for a second time, he was unable to get up, even with the assistance of his cellmate. He had remained on the floor until morning. When morning came a nurse had decided that he should be taken to the doctor, who had realised that the applicant had suffered a stroke during the night. He had subsequently been taken to the neurological ward of a nearby hospital, where he had undergone treatment for the next three weeks.

The court referred to medical expert opinions prepared for the purposes of the case. The experts had found that it had not been established that prior to his arrest the applicant had been regularly taking medication for his rheumatoid arthritis. However, even assuming that he had, the fact that he did not receive any after his arrest during the days preceding his stroke had had no bearing on the stroke itself. It had probably been caused by his circulation problems, which could have also been caused by his previously undiagnosed and untreated diabetes.

The Regional Court referred to the supplementary expert opinion of a neurologist, who observed that the refusal to provide the applicant with painkillers/anti-inflammatory drugs after his arrest could not have caused the stroke, even though it might have caused him some suffering. He was of the view that the stroke would likely have occurred even if the applicant had not been arrested, as deterioration of health leading to stroke was normally a long-term process.

The court had regard to evidence given by R.J., the inmate who had shared a cell with the applicant on the night of 7 November 1999. He testified that when the applicant had fallen off the bed, no medical assistance had been given to him. The court observed that leaving the applicant in the cell until the morning without any help from the prison guards was inappropriate. However, it was of the view that this failure was of no relevance to the applicant’s compensation claim, as the stroke had most probably been caused by the applicant’s pre-existing condition prior to his arrest. Hence, even the fact that no medical assistance had been given to him during the night in question, could not be regarded as giving rise to the State’s liability in tort in respect of the obvious damage to his health caused by the stroke.

The court observed that the applicant had essentially relied on the refusal of the police officers and prison guards to give him medication during his arrest and afterwards. In the absence of a demonstrated causal link between the refusals to give the applicant medication and his stroke on 7 November 1999, the statutory conditions for the State’s liability in tort had not been met.

The applicant appealed. He complained, inter alia, that the firstinstance court had failed to examine the issues crucial to the case. In particular, the court had failed to address the shortcomings of the medical attention given to the applicant during the critical night. He referred again to the fact that the prison authorities did not do anything to help him and that he remained on the cell floor from 2 a.m. to 8 a.m. He submitted that that fact had had an impact on the development of his condition and that the failure to give him proper and timely medical assistance had resulted in subsequent serious damage to his health. He referred to a statement made by one of the expert witnesses who had confirmed that the lack of such prompt attention resulted in the scope of that damage.

On 15 October 2010 the Warsaw Court of Appeal dismissed the applicant’s appeal and upheld the judgment. It fully shared the findings of the first-instance court and its legal assessment of the case. Under the applicable law, the applicant’s legal aid expired on that date.

The applicant did not lodge a cassation appeal (appeal on points of law) against the appellate court’s judgment.

In 2005 the social insurance authorities certified the applicant was suffering from a serious and permanent disability, in need of assistance in everyday life and unable to work. He received no income apart from disability benefit. He was not entitled to receive a pension because, as he was self-employed prior to his arrest, he had not been paying social insurance contributions.

Article 91 of the 1997 Constitution reads:

“1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.”

On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych), entered into force.

Articles 398 (1) § 1 and 395 (5) § 1 of the CCP provide that a party to civil proceedings can lodge a cassation appeal (appeal on points of law) with the Supreme Court against a final judicial decision on the merits of a case given by a second-instance court within two months of the date of service of that decision on the party together with its written grounds.

Pursuant to Article 87 (1) § 1 of the Code a party must be represented before the Supreme Court by an advocate or a legal adviser. Cassation appeals not lodged by an advocate or a legal adviser must be rejected.

Pursuant to Article 117 of the Code persons exempted from paying court fees may request legal aid. Under Article 118 § 1 of the Code legal aid expires when a second-instance judgment becomes valid in law (prawomocny). A new application for legal aid must be lodged for the purposes of subsequent proceedings before the Supreme Court.

Under Article 398 (2) § 2 of the CCP a cassation appeal is available in cases concerning pecuniary rights if the value of the dispute exceeds PLN 50,000.

Under Article 398 (3) § 1 of the CCP a cassation appeal may be based on the following grounds:

(1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

(2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.

Under Article 399 (9) § 1 of the CCP the Supreme Court shall agree to entertain a cassation appeal if:

(a) a significant legal issue is involved in the case;

(b) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in judicial practice;

(c) the proceedings have been invalid in law; or

(d) the cassation appeal is manifestly well-founded.

Pursuant to Article 398 (15) § 1 of the CCP the Supreme Court, having allowed a cassation appeal, can quash the challenged judgment in its entirety or in part and remit the case for re-examination.

Pursuant to Articles 19 and 21 of the CCP, in cases concerning pecuniary claims, the amount stated by the claimant shall be regarded as the value of the dispute. If a number of claims are made in the same proceedings, the value of the dispute is the total amount of all claims. Under Article 22 of the CCP, in cases concerning claims for periodical payments, the value of the dispute is equal to the cumulative annual value of those payments.

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. A party to pending proceedings may ask for the proceedings to be expedited and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005VIII), and in its judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 3446, ECHR 2005-V).


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)

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

The applicant was born in 1957 and lives in Leskovac.

On 5 September 1994 the Leskovac Municipal Court (“the Municipal Court”) ordered the Leskovac branch of the “JIK” Bank (“the debtor”), a predominantly socially-owned bank, to reinstate the applicant and to pay her outstanding salary and all work-related benefits for the period following her unlawful dismissal. That judgment became final on 1 September 1995.

On an unspecified date, the applicant filed a request for the enforcement of the above judgment. On 17 October 1995 the Municipal Court issued a writ of execution (rešenje o izvršenju).

On 19 December 1995 the applicant was reinstated. However, as the debtor refused to pay the outstanding judgment debt, the applicant, on an unspecified date, filed a new request for the enforcement.

On 18 November 1997, on the basis of a financial expert’s analysis, the Municipal Court ordered the enforcement by debtor account transfer in the total amount of 72,076.55 Yugoslav dinars (YUM) in respect of salary arrears and all work-related benefits, for the period from 1 May 1992 until 31 December 1995, together with statutory interest and YUM 550 for legal costs.

On 29 September 1999 the applicant requested the court to change the means of enforcement as it appeared that there were no funds in the debtor’s account. On 1 October 1999 the Municipal Court ordered the enforcement by auctioning of the debtor’s specified movable assets.

On 26 July 2000 the applicant obtained a pledge (zalog) over certain movable assets which were seized from the debtor (two vehicles and some technical equipment).

On the same day, the Belgrade Commercial Court (“the Commercial Court”) instituted liquidation proceedings against the debtor.

On 8 May 2001 the enforcement proceedings were discontinued in view of the pending liquidation proceedings. On 22 May 2001 the applicant reported her claims to the liquidation council (likvidaciono veće).

On several occasions thereafter, the applicant petitioned the court to continue with the enforcement and to schedule a public auction for the sale of the pledged assets, arguing that their value was decreasing due to the passage of time and that she had to bear the maintenance costs. On 15 January 2002 she submitted the same request to the liquidation administrator (likvidacioni upravnik).

The Municipal Court held two hearings concerning the applicant’s requests, on 10 December 2003 and 30 October 2005, but it would appear that no decision was issued.

In the meantime, on 11 March 2004 the Commercial Court appointed the Agency for Deposits as a liquidation administrator. On 7 April 2005 the Commercial Court terminated the liquidation proceedings and opened bankruptcy proceedings against the debtor.

On 18 November 2005 the Commercial Court rejected the applicant’s claims against the debtor (paragraph 13 above) and instructed her to initiate a new set of civil proceedings. On 16 May 2007 the Belgrade High Commercial Court (“the High Commercial Court”) upheld that decision.

The applicant did not initiate a new set of civil proceedings as instructed.

It would appear that bankruptcy proceedings are still pending and that the debtor is still predominantly socially-owned.

The relevant domestic law is set out in the Court’s judgment of R. Kačapor and Others v. Serbia, nos. 2269/06 et al., 15 January 2008.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Mr Recep Yıldız, is a Turkish national who was born in 1978 and lives in Rize. He was represented before the Court by Mr U. Ateş, a lawyer practising in Ankara.

On 14 July 2005, in connection with a police investigation into the alleged activities of a drug-trafficking operation, large quantities of heroin were seized in Küçükçekmece (a suburb of Istanbul) and a number of suspects were arrested.

On 28 August 2005 a police officer who had not been involved in that operation told his superior that certain police officers, including the applicant, had been offered money in exchange for leaving one of the suspects out of the investigation. He further alleged that some police officers in the unit had each received the sum of 1,000 euros (EUR) from the applicant in return for their turning a blind eye. The police officer’s superior prepared a report to that effect and initiated a disciplinary investigation concerning the allegations of bribery.

On the basis of the findings of the investigation concerning those allegations, the investigators in charge of the disciplinary investigation lodged a complaint with a public prosecutor and asked for a criminal investigation to be instigated against those police officers, including the applicant.

Accordingly, on 23 March 2006 the applicant was charged with bribery. A criminal trial was opened in the Istanbul Assize Court.

After hearing witnesses and assessing the evidence before it, the Istanbul Assize Court held that the accusations concerning the applicant and the co-accused did not go beyond hearsay and that there was nothing in the case file that proved the accused persons’ guilt. It therefore acquitted the applicant and his co-accused of bribery on 29 September 2006.

On 8 June 2007, on the basis of the findings of the disciplinary investigation, two sanctions were imposed on the applicant which deferred his advancement to a higher rank for a period of 16 months and of 24 months respectively. The relevant parts of the decision read:

“Notwithstanding the fact that the charges against the accused police officers were not proved and that they have consequently been acquitted in the criminal proceedings and that the legal constituents of the crime of bribery were lacking, under section 131 of the Civil Servants Act the opening of criminal proceedings against a civil servant cannot delay disciplinary proceedings, which can be conducted in parallel with such proceedings. Furthermore, exoneration of criminal liability does not prevent the imposition of disciplinary sanctions. In the light of the foregoing, bearing in mind the fact that the report in question was signed by the supervising police officer and four senior officers and that the statement of Ş.G. confirming the veracity of certain aspects of the allegations and the statement of [police officer] N.İ. confirming the statement of the latter ... [the disciplinary board] considers that the applicant’s conduct constituted the disciplinary offence in question. Notwithstanding the fact that the misconduct in question cannot be characterised as criminal, it was still inappropriate and was of such a nature as to diminish the respect and the trust associated with the functions of a police officer ... Therefore, the applicant’s conduct amounts to “acts and conduct that discredit the respect and trust associated with the official function of a police officer”, ... as well as to “neglect of duty” in so far as the applicant left one suspect out of the investigation, despite there being strong suspicions [that he had been involved] ...”

On 4 August 2007 the applicant lodged a claim against the Ministry of Interior with the Kastamonu Administrative Court, challenging the disciplinary sanctions imposed on him.

On 30 November 2007 the court set aside both disciplinary punishments, holding that the findings of the investigation giving rise to the impugned disciplinary action had contained no proof beyond hearsay and accordingly concluding that the allegations were unfounded.

The Office of the Istanbul Governor lodged an appeal with the Supreme Administrative Court against the decision of the Kastamonu Administrative Court; the appeal was dismissed and the decision of 30 November 2007 was upheld and became final on 21 March 2013.

Meanwhile, on 15 December 2005 the applicant underwent an appraisal of his work. The appraisal was carried out by his immediate superior and signed by a senior police chief. He was given an unsatisfactory score of 56 out of 100 and received a disciplinary warning to this effect on 3 March 2006. The warning briefly stated that the applicant’s appraisal score was unsatisfactory and that unless he improved his score he could be subject to the relevant provisions of the Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği).

On 27 March 2006 the applicant lodged a complaint with the Directorate of the Security Forces, contesting his poor appraisal score and requesting clarification of the circumstances of his appraisal.

On 10 May 2006 the applicant received a letter stating that his complaint had been examined on the basis of the documents relating to his appraisal and that his appraisal had been conducted in accordance with the law and the applicable procedure.

On 14 July 2006, the applicant instituted administrative proceedings before the Istanbul Administrative Court, requesting the court to stay and to set aside the appraisal decision of 3 March 2006. He argued that his superiors had only taken into account the allegations of bribery against him in connection with the narcotics operation carried out in 14 July 2005 and had failed to respect his right to the presumption of innocence given that the criminal proceedings concerning the same allegations were still pending. In that respect, he submitted that his appraisal had been biased. He further submitted that, owing to the fact that his appraisal had been poor, he had been transferred to a remote city and was therefore prevented from continuing his master’s studies at Marmara University in Istanbul.

During the course of the proceedings the applicant submitted to the Istanbul Administrative Court the judgment of 29 September 2006 acquitting him of the charges of bribery.

During the course of the proceedings the court requested from the Ministry of Interior the file regarding the applicant’s appraisal, as well as his appraisal records over the previous five years. The applicant’s previous appraisal in respect of the years 2003 and 2004 had been excellent, with a score of 95. No appraisals had been carried out in the years 2000 and 2002 owing to the fact that the applicant had taken unpaid leave. Lastly, for the year 2001, the applicant’s appraisal score had been mediocre, with a score of 74.

On 31 October 2007 the court dismissed the applicant’s request and held that his appraisal had been carried out in accordance with the law and had no appearance of arbitrariness. The relevant parts of the judgment read:

“Appraisal exercises are carried out annually to assess a civil servant’s competence, skills, output and his or her professional conduct. On the one hand, an appraisal report necessarily contains observations that are based on the subjective impressions of the appraiser – which need not be substantiated by concrete evidence. In this last respect, however, if an appraisal report contains negative feedback in terms of a civil servant’s productivity, competence and work discipline, these points need to be substantiated with reasons ... On the other hand, all acts of the State are subject to judicial review ... As a safeguard against arbitrariness, appraisal reports need to contain reasons for their conclusions ... On the basis of the examination of the case file, it is understood that the applicant was implicated in a disciplinary investigation involving allegations of bribery. Following the disciplinary investigation he received two deferments of advancement to a higher rank of durations of 16 months and 24 months, respectively. Due to the fact that the applicant had received disciplinary sanctions, his appraisal report indicated that the applicant had demonstrated a tendency to put his own interests first [tavassuta düşkünlük].

Therefore, the court finds it established that the ... disciplinary misconduct attributed to the applicant was proved during the course of the disciplinary investigation and that the poor appraisal based on the perception of his tendency to put his own interests first is not incompatible with the law.”

The applicant appealed against the decision to the Supreme Administrative Court, reiterating the arguments he had raised before the Istanbul Administrative Court and further submitting that the Administrative Court had found a very similar appraisal report to be incompatible with the law in the case of a colleague who had also been subject to the same disciplinary proceedings concerning the narcotics operation of 14 July 2005. In the context of those other proceedings concerning the applicant’s colleague, the Kastamonu Administrative Court, acting as the court of first-instance, had held on 25 April 2008 that:

“The appraisal system is the legal basis on which a civil servant receives a promotion, demotion or salary increase, or obtains a transfer to a different city or to a different function ... In consideration of the significance of the legal consequences of the appraisal and having regard to the legal nature of the appraisal report, the reasons set out in the appraisal report must clearly explain the conclusions reached and also support such conclusions with concrete background information and documents.

In the circumstances of the present case, the court had regard to the plaintiff’s appraisal reports for the years preceding 2006 and noted that his appraisal reports concerning the previous five years had consistently been excellent. However, the ‘mediocre’ appraisal score given to the plaintiff for the year 2006 was not substantiated with reasons or documents and contained no explanation as to why the applicant had gone from excellent to mediocre. On the basis of the foregoing, the court sets aside the appraisal report for not being compatible with the law.”

On 27 April 2009 the Supreme Administrative Court rejected the applicant’s appeal as ill-founded and found the impugned decision to be in conformity with the law and the applicable procedure. One judge (out of five) expressed a dissenting opinion. She stated, in particular, the following:

“The disciplinary sanction received by the applicant does not in itself merit a poor score in respect of all the areas assessed in the appraisal report. For this reason, I do not agree with the majority that the appraisal was in total conformity with the law.”

The applicant lodged an appeal, seeking the rectification of the decision of 31 October 2007. In its decision of 27 January 2010, served on the applicant on 17 May 2010, the Supreme Administrative Court rejected that appeal.

Section 2 of the Disciplinary Regulation of the Security Forces (Emniyet Örgütü Disiplin Tüzüğü), in so far as relevant, provided as follows:

“Disciplinary measures shall comprise one of the following:

D) Lengthy deferment of advancement: advancement to a higher grade may be deferred for a period of twelve, sixteen, twenty or twenty-four months.”

Section 8 of the Disciplinary Regulation of the Security Forces, in so far as relevant, set out the possible grounds for a police officer’s dismissal from the police force as follows:

“The following acts, procedures, behaviour and conduct incur expulsion from the profession ...

Larceny, robbery, fraud, extortion, bribery, embezzlement, defalcation, rape, sexual assault, forgery, counterfeiting, intentional killing or attempting any of these offences, abuse of trust, bearing false witness, perjury, false accusation, slander ...”

Section 7 of the Disciplinary Regulation of the Security Forces, in so far as relevant, defined the types of misconduct sanctioned by a lengthy deferment of advancement as follows:

“B) Deferment for a period of 16 months

1 – Conduct that is incompatible with the reputation and trust inherent in the official function.

D) Deferment for a period of 24 months

2 – Neglecting one’s duty by failing to take the necessary actions against a suspect ...”

Section 17 of the former Regulation on the Personnel Records of Civil Servants (Devlet Memurları Sicil Yönetmeliği) provided, in so far as relevant, as follows:

“Overall assessment of the Civil Servant’s Conduct:

The appraiser shall take into consideration

a) Appearance (professional attire);

b) Intelligence and his or her ability to learn;

c) Ability to persevere, the desire to excel, [and] the ability to be discreet;

d) [A]ddictions such as gambling and alcohol consumption that are not compatible with civil service;

e) Personality traits such as reliability, preoccupation with one’s own self-interest, honesty, tendency to gossip [or feel] jealousy ...”

Section 24 of the former Regulation on the Personnel Records of Civil Servants provided, in so far as relevant, as follows:

“A civil servant who receives two poor appraisal scores in succession shall be assigned to a different appraisal unit and in the event that he [again] receives a poor score, he shall be dismissed from the profession ...”


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant, Aktoploikes Grammes Thiras Société Maritime, is a Greek private company. It is represented before the Court by Mr P. Bitsaxis, a lawyer practising in Athens.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova, of the Ministry of Justice of Ukraine.

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

In November 2000 the applicant company entered into a contract with a Ukrainian joint-stock company, P. Under the contract, P. was to carry out repair work on a vessel owned by the applicant company. The work was to be done in a Ukrainian port. All disputes arising out of this contract were to be settled by arbitration in the Court of Foreign Commercial Arbitration at the Chamber of Commerce and Industry in Kyiv. I., a senior executive of P., was in charge of all customs formalities relating to the vessel’s temporary stay in Ukraine.

On 17 January 2001 P. filled in a customs declaration on a one-year temporary stay of the vessel on the customs territory of Ukraine. The vessel had to be removed from the customs territory of Ukraine by 17 January 2002.

On 17 January 2002 a customs declaration on removal of the vessel was signed but the vessel was not removed.

On 30 January 2002, the customs service seized the vessel because of a violation of customs regulations. It was noted in the seizure act that the vessel’s customs value was UAH 319,164 (at the material time around EUR 70,000).

By a decision of 3 April 2002, the Leninskyy District Court terminated the administrative offence proceedings against I. as time-barred but ordered confiscation of the vessel as an object with which customs regulations were violated. I. did not attend the court hearing and submitted a request that the case be examined in his absence. The court found that the vessel should have been removed from the customs territory of Ukraine by 17 January 2002. The applicant company’s representatives stated that the weather conditions had been unfavourable so the vessel had not left the customs territory of Ukraine and they had requested an extension of its stay in the Ukrainian port. The court found that the weather conditions between 10 and 20 January 2002 had been fine but the vessel had not been removed. There was also no evidence that an application for extension of its temporary stay had been lodged. The decision of 3 April 2002 was final and at the material time it was not subject to appeal.

On 21 June 2002 the State Bailiffs’ Service put the vessel on the seizure list and prohibited it to leave the port.

On 15 July 2002 the applicant company instituted proceedings against the bailiffs. It complained that on 5 July 2002 a bailiff Z. had arrived on the vessel in question but had refused to produce any enforcement documents. The applicant company stated that in its decision of 3 April 2002 the Leninskyy District Court had failed to specify that it was the applicant company’s vessel that had to be confiscated. It further stated that the enforcement proceedings had been instituted unlawfully and that the applicant company had not been mentioned as a party of the enforcement proceedings. The applicant company referred to Article 48 of the Law “On Property”, which provided for general protection of property rights, and requested the court “to stop actions which breach the company’s property rights”. Later it amended its claims and requested, without any particular specification, that its property rights over the vessel be recognised, that the vessel be removed from the seizure list and the use of the vessel not be hindered.

On 17 July 2002 the Sevastopol Commercial Court rejected the applicant company’s claim since it ought to have been considered by a court of general jurisdiction. On 2 September 2002 the Sevastopol Commercial Court of Appeal quashed that decision and remitted the case for fresh consideration. The court noted that the applicant requested “protection of property rights” and an alleged breach of such rights consisted in that on 5 July 2002 the bailiffs visited the vessel without “any legal grounds”. Since the applicant was not a party to the enforcement proceedings, it had a right to lodge a claim for its property rights protection under the Commercial Procedure Code in a commercial court.

On 2 December 2002 the Sevastopol Commercial Court rejected the applicant company’s claim. It held that, under section 59 of the Bailiffs Service Act, a person who stated that the seized property belonged to him or her, could lodge a claim with the court asking for his or her rights over the property to be recognised and for the property to be excluded from the seizure list. The creditor and the debtor could be defendants in such a case. In the present case the vessel was to be confiscated by the State. The bailiffs’ service was not a proper defendant in this case.

The applicant company appealed stating that the bailiffs’ actions were unlawful. The applicant company reiterated that the court decision had not specified it as a party to the enforcement proceedings.

On 13 February 2003 the Sevastopol Commercial Court of Appeal quashed that decision and found for the applicant company. On its own initiative the court replaced the defendant in the case by the Balaklava District State Tax Inspectorate. The court further held that the vessel was owned by the applicant company and since the latter had not breached customs regulations there had been no legal ground for the vessel’s confiscation. The court further noted that according to Article 149 of the Customs Code of Ukraine in case of impossibility to confiscate the object of the breach of customs rules a person responsible for such breach should pay the cost of such object and that “the analysis of the existing legal provisions enable[d] the court to conclude that only an object owned by an offender could be confiscated”.

By letters of 5 and 27 August 2003 the Ministry of Justice of Ukraine informed the Greek Embassy in Ukraine that the enforcement proceedings in the case had been stayed following the decision of 19 August 2002 of the Balaklavskyy District Court. No copy of this decision was submitted by the parties.

On 11 November 2003 the Higher Administrative Court of Ukraine quashed the decision of 13 February 2003 and upheld the decision of 2 December 2002. The court held that the applicant company’s property right to the vessel had never been disputed, since the vessel had been confiscated not as property of I., but as the object with which customs regulations had been violated. The confiscation of the vessel was carried out in connection with proceedings relating to an administrative offence. By finding for the applicant company the Sevastopol Commercial Court of Appeal had actually reviewed the decision of 3 April 2002, which was beyond its competence.

The applicant company appealed stating that by adopting the decision of 3 April 2002 the Leninskyy District Court had breached the law and the Convention provisions.

On 10 January 2004 the Supreme Court of Ukraine refused a request by the applicant company for leave to appeal on points of law.

The applicant company sought in the commercial court to terminate the enforcement proceedings but by a decision of 6 April 2004 upheld by higher courts this request was rejected as falling outside the commercial court’s jurisdiction.

According to the applicant company, the vessel was sold at an auction to an unknown person.

The applicant company did not institute any proceedings, either against the P. company or I., seeking compensation for the damage incurred.

Article 287 of the Code on Administrative Offences, in force at the material time, provided that decisions imposing an administrative sanction could be appealed, except for decisions given by the first-instance court. The latter were final and were not subject to the ordinary appeal procedure.

According to Article 149 of the Customs Code of Ukraine, in force at the material time, the bailiffs were in charge of enforcement of the court’s decisions on confiscation of property in cases on breach of customs regulations. In case of impossibility of confiscation the offender had to pay its value. According to Article 29 of this Code an item could be confiscated only if it belonged to an offender, “unless otherwise provided for by the laws of Ukraine”.