Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

A list of the applicants is set out in the appendix.

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

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

The applicants are the wife, children, parents and siblings of Orhan Saday, who died on 31 January 2008 as the result of an explosion in an unlicensed fireworks workshop operating in Zeytinburnu, a district of Istanbul. It appears that twenty other people lost their lives in the same explosion, and that some 115 people were injured.

On the same day the Bakırköy public prosecutor’s office initiated an investigation of its own motion into the incident. Accordingly, evidence was collected from the accident site, including photographic and forensic evidence, and an incident report was prepared. The Bakırköy public prosecutor’s office also commissioned two expert reports, one involving a chemical analysis of the substances collected from the accident site (“the first expert report”), and the other concerning the establishment of the circumstances of and responsibility for the explosion, including any responsibility on the part of any State officials (“the second expert report”).

On 4 February 2008 a lawyer from the Istanbul branch of the Contemporary Lawyers’ Association lodged a criminal complaint, in the name of that association, against various public officials in connection with the explosion.

The first expert report, which was added to the investigation file on 17 March 2008, concluded that most of the samples obtained from the accident site contained barium nitrate, a highly toxic and explosive chemical substance.

The second expert report was added to the investigation file on 31 March 2008. The report, which contained very detailed findings based on an examination of the forensic evidence and statements given to the police by a number of witnesses, found that – under the relevant regulations – the following persons and authorities had been responsible for the accident:

- S.B., the owner of the workshop, had been 2/10 responsible for the explosion, on account of his failure to comply with various licensing and security requirements provided by the relevant legislation;

- Istanbul Metropolitan Municipality and Zeytinburnu Municipality had each been 3/10 responsible, mainly on account of their failure to fulfil their respective licensing and inspection duties, as specified in the relevant legislation;

- the electricity distribution company BEDAŞ (Boğaziçi Elektrik Dağıtım Anonim Şirketi) had been 1/10 responsible on account of having supplied electricity to a building which did not possess an occupancy permit;

- the Ministry of Labour and Social Security had been 1/10 responsible, on account of having failed to inspect the workshop, in which uninsured workers had been employed.

Having regard to the findings of the experts and the criminal complaint lodged by the Contemporary Lawyers’ Association (see paragraph 6 above), and in compliance with the mechanism set out under Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials) for the prosecution of civil servants, the Istanbul public prosecutor’s office sought authorisation from the competent authorities for the prosecution of a number of public officials.

After conducting its own examination into the matter, on 21 November 2008 the Istanbul Governor’s Office refused to authorise the prosecution of the former District Governor of Zeytinburnu (S.C.) and the Security Director of Istanbul (C.C.). It held that these authorities had been under no obligation to take action in respect of the workplace at issue, given that no irregularities had been brought to their attention by other organs, such as local municipalities, which had been responsible for inspecting that workplace. It appears that the applicants were not able to lodge an objection in respect of this decision, as it was not served on them.

On 15 September 2009 the Istanbul public prosecutor’s office issued a decision not to prosecute S.C. and C.C., in accordance with the decision of the Istanbul Governor’s Office.

On an unspecified date the applicants’ representative lodged another criminal complaint against S.C. and C.C. Referring to its previous decision of 15 September 2009, on 12 November 2009 the Istanbul public prosecutor’s office issued, once again, a decision not to prosecute. The applicants lodged an objection to that decision; this was rejected by the Beyoğlu Assize Court on 25 December 2009.

On 15 April 2011 the Ministry of the Interior – relying on the findings of an internal investigation (conducted by one of its own inspectors) into the respective responsibilities of the mayor of Istanbul Metropolitan Municipality (K.T.) and the mayor of Zeytinburnu Municipality (M.A.) in respect of the incident – decided not to grant permission for their prosecution. According to the findings of the Ministry inspector, the licensing and inspection of the workplace at issue had been outside the scope of the duties of Istanbul Metropolitan Municipality. Moreover, those officials from Zeytinburnu Municipality who had been responsible for the licensing and inspection of the workshop had indeed undertaken such an inspection, but since the owner had not declared that he was engaged in the production of pyrotechnic articles, such as fireworks, they had had no reason to take any measures against the workshop. The applicants lodged an objection against that decision.

On 25 November 2011 the Supreme Administrative Court dismissed that objection in so far as it concerned K.T., but it accepted it in so far as it concerned M.A., holding that under the relevant legislation, it was his municipality that had been responsible for licensing and inspecting the workplace in question. The Supreme Administrative Court therefore granted permission for his prosecution.

Accordingly, the Istanbul prosecutor’s office issued a decision not to prosecute in respect of K.T. Nevertheless, an investigation was launched by the Zeytinburnu public prosecutor’s office into whether or not M.A. had been responsible; that investigation resulted in a decision not to prosecute M.A. on account of a lack of evidence indicating negligence or misconduct on his part in connection with the incident. The applicants lodged an objection against that decision.

On 15 March 2012 the Istanbul Assize Court upheld that objection and annulled the decision not to prosecute M.A.

Upon receipt of the prosecution request from the Bakırköy public prosecutor’s office, an internal investigation was conducted at Istanbul Metropolitan Municipality into the responsibilities of current and former licence inspection directors of Istanbul Metropolitan Municipality (Y.P., F.K. and T.A.), which found that the licensing and inspection of the production of the explosive material in question was outside the scope of the duties of Istanbul Metropolitan Municipality.

Accordingly, on 16 January 2009 the Istanbul Governor’s Office refused to authorise the prosecution of Y.P., F.K. and T.A.; on 11 June 2009 the Istanbul Regional Administrative Court dismissed an objection lodged by the Bakırköy prosecutor’s office against that decision, as the objection had been lodged outside the statutory time-limit.

Following a request by the Bakırköy public prosecutor’s office for the prosecution of the Zeytinburnu Municipality personnel who had been in charge of the overseeing and inspection of the workplace at issue, the Zeytinburnu District Governor’s Office carried out a preliminary examination in respect of the following Zeytinburnu Municipality personnel: three zoning and urban development directors (Ş.Y., H.K. and S.K.); the licensing and inspection director (R.T.); the licence inspection and finance director (H.O.); and the municipal police director (F.K.). By a decision dated 30 December 2008, the Zeytinburnu District Governor’s Office decided not to grant permission for the prosecution of these individuals, on the grounds that they had not been at fault or been negligent in respect of the occurrence of the explosion.

The Bakırköy public prosecutor’s office lodged an objection against that decision; on 11 March 2009 the Istanbul Regional Administrative Court revoked the decision of the District Governor’s Office and granted permission for the prosecution of the persons in question. The Administrative Court held that there was enough material in the case file to justify an investigation into whether the Zeytinburnu Municipality personnel in question had been responsible for the explosion.

It appears from the submissions of the Government that the Bakırköy public prosecutor’s office also sought permission for the prosecution of A.T., the former director of the Istanbul Regional Labour Office, which was attached to the Ministry of Labour and Social Security. While the Istanbul Governor’s Office initially refused permission for the prosecution of A.T., that decision was subsequently overturned by the Istanbul Regional Administrative Court on 11 June 2010.

After obtaining administrative authorisation (idari izin) for the prosecution of the public officials in question, the Bakırköy public prosecutor’s office issued three separate bills of indictment in respect of the incident.

The first bill of indictment was filed on 28 October 2009 against the Zeytinburnu Municipality personnel Ş.Y., H.K., S.K., F.K. and R.T. (see paragraph 19 above), the owners of the building in question (Res. K. and Rem. K.), and H.A. (one of the employees of the workshop in question). All suspects were accused of causing death and bodily harm through negligence under Article 85 § 2 of the Turkish Criminal Code. The Zeytinburnu Municipality personnel were also accused of misconduct in office (görevi kötüye kullanma) under Article 257 § 1 of the Criminal Code.

The second bill of indictment was filed on 28 July 2010 in respect of A.T., the director of the Istanbul Regional Labour Office (see paragraph 21 above), under Articles 85 § 2 and 257 § 2 of the Criminal Code.

The third bill of indictment was filed on 29 June 2012 against M.A., the mayor of Zeytinburnu (see paragraph 16 above), under Article 85 § 2 of the Criminal Code.

The proceedings in respect of the incident were held before the Bakırköy Assize Court, which joined the three cases. During the course of the proceedings, statements from some eighty-five people were taken by the court as victims or complainants. The court also took many witness statements and examined all evidence collected during the preliminary investigation (such as photographs and video footage, autopsy reports, Forensic Medicine Institute reports, on-site examination reports, internal investigation reports issued by the public bodies concerned and other expert reports). It also ordered its own expert report from a group of experts consisting of six university professors and engineers, and also requested information and documents from all the public authorities concerned in relation to the circumstances that had led to the explosion at issue.

Relying on all the information and evidence before it, and having regard to the jurisprudence of the European Court of Human Rights on the matter (as established in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004XII), on 14 July 2014 the Bakırköy Assize Court delivered its judgment, which contained the following findings:

- it found the Zeytinburnu Municipality personnel F.K. and R.T. guilty as charged and sentenced them each to seven years and six months’ imprisonment;

- it found the Zeytinburnu Municipality personnel S.K. and Ş.Y. guilty as charged, sentenced them each to four years and two months’ imprisonment, and in both cases converted that sentence to a judicial fine of 30,400 Turkish liras (TRY) (approximately 10,535 euros (EUR) at the material time);

- it found the Zeytinburnu Municipality employee H.K. guilty as charged, sentenced her to two years and six months’ imprisonment, and converted that sentence to a judicial fine of TRY 18,200 (approximately EUR 6,300 at the material time);

- it found the building owners Res. K. and Rem. K. guilty as charged, and sentenced them each to five years’ imprisonment;

- it acquitted the mayor of Zeytinburnu Municipality (M.A.) and the former director of the Istanbul Regional Labour Office (A.T.); and

- it acquitted H.A., an employee of the workplace in question.

An appeal was lodged against the judgment of the Bakırköy Assize Court. According to the latest information in the case file, the appeal proceedings are still pending before the Court of Cassation.

On an unspecified date in 2008 the applicants brought an action for compensation in the Istanbul Administrative Court against the Ministry of the Interior, the Ministry of Labour and Social Security, Istanbul Metropolitan Municipality, Zeytinburnu Municipality and BEDAŞ. They requested a total of TRY 185,000 in respect of pecuniary damage and TRY 250,000 in respect of non-pecuniary damage.

Relying on the evidence in the criminal case file, together with an expert report that it commissioned to ascertain the damage incurred by the applicants, on 22 June 2011 the Istanbul Administrative Court found that Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been jointly and severally liable for the incident in question. It awarded the applicants TRY 138,203.35 (approximately EUR 59,950) in respect of pecuniary damage and TRY 180,000 (approximately EUR 78,000) in respect of non-pecuniary damage, plus interest.

On 26 September 2012 the Supreme Administrative Court quashed that judgment upon an appeal lodged by all parties. It held that while only Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been found responsible for the incident, the information and documents in the case file suggested that the remaining three respondents had also been at fault.

On 28 January 2014 the Supreme Administrative Court dismissed a request lodged by all five respondents for the rectification of its decision.

The Istanbul Administrative Court ordered a new expert report to determine the respective liabilities of the respondents; the report found that all the respondents had been responsible for the accident to some degree. Accordingly, on 28 October 2015 the administrative court ordered the payment of the amounts it had previously determined (see paragraph 30 above) jointly and severally by the five respondents.

An appeal was lodged against the judgment of the Istanbul Administrative Court. According to the latest information in the case file, the appeal proceedings are still pending before the Supreme Administrative Court.

The relevant provisions of the Turkish Criminal Code are as follows:

Article 85

“(1) Anyone who negligently causes the death of another shall be sentenced to a term of imprisonment of between two and six years.

(2) If the act results in the death of more than one person, or injury to more than one person together with the death of one or more persons, the offender shall be sentenced to a term of imprisonment of between two and fifteen years.”

Article 257

“(1) ... any public officer who secures an unjust financial benefit for another or causes any loss to the public or to an individual by acting contrary to the requirements of his office shall be sentenced to a term of imprisonment of between six months and two years.

(2) ... any public officer who secures unjust financial benefit for another or causes any loss to the public or an individual through omission or delay in the performance of his duties shall be sentenced to a term of imprisonment of between three months and one year.”

Detailed information regarding Law no. 4483 on the Prosecution of Civil Servants and Public Officials may be found in the cases of M. Özel and Others v. Turkey (nos. 14350/05 and 2 others, § 133, 17 November 2015) and Aydoğdu v. Turkey (no. 40448/06, §§ 37-39, 30 August 2016).


CASE OF PETROVIĆ v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

On 11 December 2002 the applicant instituted proceedings for restitution of a hotel in Skopje which had been confiscated from his predecessor in 1948. On 7 June 2004 a commission responsible for such matters within the Ministry of Finance dismissed the applicant’s claim. On 27 July 2004 he appealed. On 16 November 2004 a second-instance commission set up within the Government dismissed his appeal. Subsequently, the case went back and forth several times between the administrative bodies and courts at two levels of jurisdiction. The proceedings are currently pending before the Higher Administrative Court, awaiting a decision on an appeal by the applicant of 26 January 2016 against a judgment of the Administrative Court.

On 3 July 2014 the applicant applied to the Supreme Court for a ruling that the length of the restitution proceedings had been excessive, to award him compensation and set a three-month time-limit for the court dealing with his case to decide on his restitution claim.

By letters dispatched between 8 July 2014 (received on 3 September 2014) and 20 January 2015, the Supreme Court requested the case file from the Administrative Court. The case file, which was with the administrative bodies, was forwarded to the Supreme Court on 13 February 2015.

On 28 April 2015 the first-instance panel of the Supreme Court found that the relevant period to be taken into consideration had started to run on 16 November 2004 (see paragraph 6 above). It further established that the case had not been complex and that there had been no delays attributable to the applicant. It concluded that there had been a violation of the applicant’s right to a hearing within a reasonable time and awarded him the equivalent of 810 euros (EUR) in compensation.

By a letter of 3 June 2015 (received on 10 August 2015), the Supreme Court asked the Ministry of Justice to provide assistance in delivering its decision because the applicant lived in Serbia. Between 25 August and 21 December 2015, the Ministry of Justice of the respondent State asked, on three occasions, that the relevant Ministry in Serbia serve the Supreme Court’s decision on the applicant. By a letter of 28 December 2015 (received on 10 March 2016), the Ministry of Justice of Serbia informed the relevant Ministry of the respondent State about the date of service of the Supreme Court’s decision to the applicant.

In an appeal against the Supreme Court’s decision of 28 April 2015, the applicant complained that it had taken too long for that court to decide on his application. He referred to section 36(4) of the Courts Act, which required the Supreme Court to decide on a length of proceedings remedy within six months (see paragraph 14 below). He also complained that the amount of compensation awarded to him had been too low.

On 21 March 2016 the second-instance panel of the Supreme Court ruled partly in favour of the applicant. It endorsed the findings of the first-instance panel regarding the complexity of the case and that no delays were attributable to the applicant, found that the proceedings had lasted for ten years, five months and twelve days and set compensation at the equivalent of EUR 1,050.


Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant, Ms Vida Novak, is a Slovenian national, who was born in 1951 and lives in Maribor. She is represented before the Court by Mr E. Kralj, a lawyer practising in Maribor.

The Slovenian Government (“the Government”) were represented by their Agents, Ms T. Mihelič Žitko and J. Morela.

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

On 23 February 1992 inheritance proceedings in respect of the property of the applicant’s late mother were instituted before the Maribor Local Court.

The applicant claimed that because of gifts made by her late mother she would be excessively deprived of her statutory share of the inheritance. As a result, the court, in 2001, stayed the inheritance proceedings and advised the applicant to pursue her claim in contentious proceedings.

On 17 December 2001 the applicant instituted contentious proceedings before the Maribor District Court.

By May 2005 the applicant had made five requests for a hearing to be scheduled.

On 23 May 2005 the Maribor District Court adjourned the proceedings. Both parties appealed.

On 5 July 2005 the Maribor Higher Court quashed the decision to adjourn the proceedings.

Between August 2005 and April 2006 the applicant made six requests for the District Court to schedule a hearing.

On 25 August 2006 she lodged a supervisory appeal.

On 16 October 2006 the president of the Maribor District Court ordered that the case be given priority.

The applicant made four further requests for a hearing.

On 19 June 2007 the court held a hearing and dismissed the applicant’s claim. The applicant appealed.

On 2 April 2008 the Maribor Higher Court allowed the appeal and remitted the case back to the District Court.

On 22 September 2008 the applicant lodged a supervisory appeal.

On 13 October 2008 the applicant was informed in response to her supervisory appeal that a hearing would be held within a period of less than four months.

On 4 November 2008 the Maribor District Court held a hearing and concluded the proceedings. Its decision was served on the applicant on 4 May 2009. She appealed on 8 May 2009.

On 26 August 2009 the Maribor Higher Court upheld the applicant’s appeal in part and modified the first-instance court’s decision accordingly. The applicant lodged an appeal on points of law.

On 5 May 2011 the Supreme Court issued a judgment rejecting her appeal on points of law.

On 26 August 2011 the Supreme Court, at the request of the applicant, issued an additional decision in respect of the case, which was served on the applicant on 19 October 2011.

On 9 December 2009 the applicant signed an agreement with her lawyer, agreeing to pay his fees for the representation in the compensation proceedings according to the Lawyer Fees Schedule (odvetniška tarifa, scheme setting out the official fees for lawyers’ legal services), which was based on the Lawyer Act (Zakon o odvetništvu, see paragraph 37 below). They later agreed that the legal fees and other costs could be settled once all the remedies had been exhausted.

On 10 December 2009 the applicant lodged a claim for compensation for non-pecuniary damage sustained as a consequence of undue length of the contentious proceedings (see paragraphs 6-21 above) with the State Attorney’s Office in accordance with the Protection of the Right to a Trial without Undue Delay Act (“the 2006 Act”). She had been offered 450 euros (EUR) by way of compensation, which she rejected as too low.

On 18 March 2010 the applicant instituted proceedings against the State seeking EUR 2,300 for non-pecuniary damage. When lodging the claim the applicant paid court fees in the amount of EUR 165. The State was represented by the State Attorney’s Office in Celje. The latter lodged a reply to the applicant’s claim on 30 March 2010.

On 14 April 2010 the applicant submitted her pleadings, disputing the arguments of the State Attorney’s Office. On 23 April 2010 the State Attorney’s Office submitted its pleadings.

On 11 May 2010 the Celje District Court held a public hearing. After the hearing it upheld the applicant’s claim in part. It noted that the parties had not significantly contributed to the length of the contentious proceedings, that the case was a rather simple one, and that the issue had certainly not been of minor importance to the applicant. The court referred to the compensation, which it considered to be typically awarded to the applicants by the Court in cases concerning similar length and involving a similar number of levels of jurisdiction. The court awarded the applicant EUR 450, with default interest, in compensation for non-pecuniary damage.

On 17 June 2010 the applicant lodged an appeal, paying court fees amounting to EUR 150.

On 2 February 2011 the Celje Higher Court partially upheld the applicant’s appeal and increased damages to EUR 650. The Higher Court found that the first-instance court had relied on case-law which was not analogous enough to the applicant’s case to be used as a criterion for an appropriate compensation. Noting that the allowed compensation under the 2006 Act ranged from EUR 300 to EUR 5,000, it considered that the applicant should have been awarded EUR 650. As regards the costs, it decided that the applicant was entitled to EUR 65 for legal representation in the first-instance proceedings and nothing with respect to legal fees for the representation at the appeal stage as the law did not provide for it (see paragraph 37 below).

On 30 May 2011 the applicant lodged a constitutional complaint and an application for constitutional review of the provisions of the Lawyer Fees Act (Zakon o odvetniški tarifi) in parts concerning the fees for legal representation in the proceedings under the 2006 Act. She complained about the length of the contentious proceedings and the courts’ handling of her claim for compensation for undue delays. She moreover argued that the extreme restrictions regarding the reimbursable legal fees in the proceedings under the 2006 Act, which did not apply to regular civil proceedings, were contrary to the equal protection of rights and the right to judicial protection enshrined in the Constitution. The proceedings under the 2006 Act were complex enough to require legal representation as several steps, such as using of acceleratory remedies and settlement procedure, had to be conducted before a compensation claim could be lodged and there were strict procedural rules as regards the conduct of the compensation proceedings. She also pointed out that the contested provisions of the Lawyer Fees Act had essentially affected the plaintiffs, who had suffered damage due to a breach of the reasonable time requirement. For the representation in the 2006 Act proceedings, the plaintiffs often paid legal fees based on an agreement, which meant that most of it might remain unreimbursed.

On 6 June 2012 the Constitutional Court rejected both the applicant’s constitutional complaint and the application for review of constitutionality. It rejected the constitutional complaint as inadmissible referring to section 55 (a) of the Constitutional Court Act (see paragraph 39 below). As regards the application for review of constitutionality, the Constitutional Court noted that the challenged law was no longer in force, and that in any event the outcome of the proceedings could not benefit the applicant, as her constitutional complaint had been rejected.

The applicant indicated to the Court that she was due to pay her lawyer EUR 1,093 with respect to court fees relating to the compensation proceedings.

After the Maribor Higher Court had issued its decision in the contentious proceedings (see paragraph 19 above), the Maribor Local Court continued with the examination of the case in the inheritance proceedings and on 1 April 2011 issued a decision on the distribution of the inheritance. Further to an appeal, the Maribor Higher Court issued a decision on 26 October 2011 (served on the applicant on 4 November 2011).

On 7 March 2012 the applicant, who had availed herself of the remedies provided for under the 2006 Act, reached an out-of-court settlement with the State Attorney’s Office after being offered the maximum amount of compensation allowed under the 2006 Act, namely EUR 5,000, as just satisfaction for the violation of her right to a trial without undue delay in the inheritance proceedings, as well as EUR 360 for the costs of legal representation.

For a detailed presentation of the 2006 Act, see Žunič v. Slovenia (dec.), no. 24342/04, §§ 16-26, 18 October 2007, and Žurej v. Slovenia (dec.), no. 10386/03, §§ 14-15, 16 March 2010.

As regards the reimbursement of costs and fees in the court proceedings, section 154 of the Civil Procedure Act (Official Gazette no. 26/99 with relevant amendments) provides that the losing party to the proceedings should bear the costs of the successful party. However, if the claim was upheld only in part, the court may order that the amount of the costs to be reimbursed by the defendant should correspond to the proportion of the upheld part of the claim. According to section 155 of the same Act only necessary costs were reimbursable.

In the compensation proceedings under the 2006 Act the parties have to pay the court fees which apply in ordinary civil proceedings under the Court Fees Act. The amount of the court fees depends on the monetary value of the claim.

The fees reimbursable to lawyers for representation of their clients were until 2009 specified in the Lawyer Fees Schedule, based on the Lawyer Act (Official Gazette no. 18/93 with relevant amendments), applicable from 12 July 2003. On 1 January 2009 the Lawyer Fees Act (Official Gazette no. 67/2008) entered into force. It specified, inter alia, the fees reimbursable to lawyers for representation of their clients in proceedings under the 2006 Act. The Lawyer Fees Act was the act applicable at the time of the applicant’s compensation proceedings. The fees for representation in the proceedings under the 2006 Act was set at EUR 10 for lodging a supervisory appeal, a motion for a deadline or a claim for settlement with the State Attorney’s Office. In court proceedings the award for representation was set at 10% of the compensation awarded by the court, but could not exceed EUR 300. There was no additional fee for representation in the appeal proceedings.

The Lawyer Fees Act was repealed on 9 May 2009 by section 19 of the Amendment to the Lawyer Act; however, the fees laid down in the Lawyer Fees Act were still applicable until the adoption of the new Lawyer Fees Schedule. According to the new Lawyer Fees Schedule, based on the Lawyer Act and applicable from 10 January 2015, the fees for lodging an application for a supervisory appeal or a motion for a deadline was raised from EUR 10 to EUR 91, while the distinction between court proceedings under the 2006 Act and ordinary civil proceedings was abolished and consequently the same fees applied to both.

As regards the admissibility of a constitutional complaint, section 55a of the Constitutional Court Act provides as follows:

“(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms did not have serious consequences for the complainant.

(2) It is deemed that there has been no violation of human rights or fundamental freedoms which had serious consequences for the complainant with regard to individual acts: issued in small-claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure; if only a decision on the costs of proceedings is challenged by the constitutional complaint; issued in trespass to property disputes; issued in minor offence cases.

(3) Irrespective of the preceding paragraph, in especially well-founded cases the Constitutional Court may exceptionally decide on a constitutional complaint against the individual acts referred to in the preceding paragraph. An instance of an especially well-founded case is a decision that concerns an important constitutional question which exceeds the importance of the specific case.”


CASE OF S.D.M. AND OTHERS v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1969, 1975 and 2002 respectively. They have been residing in the Netherlands since 1996.

The first applicant entered the Netherlands and applied for asylum on 10 March 1996, submitting the following account to the immigration authorities. He stated that he was a single Afghan national of Tajik origin, that he had never joined a political party, and that he had worked from 1988 to 1992 for the Afghan security service Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”) of the former communist regime in Afghanistan.

In 1988 he had reported for compulsory military service. In response to his request to be posted close to home, he had been assigned to the KhAD/WAD in Herat. After his basic training, which had lasted three months, he had started to work for Department 5 of the KhAD/WAD in Herat, which – under President Najibullah’s national reconciliation policy sought to establish peaceful relations with the mujahideen and their reintegration into Afghan national institutions – did not combat the mujahideen opposition but sought to try to negotiate with and persuade mujahideen groups to conclude peace agreements. These agreements entailed remunerated cooperation with the ruling communist People’s Democratic Party of Afghanistan (“PDPA”).

In the first year and as a conscript, he had performed guard duties and certain administrative tasks, such as making propaganda posters for the PDPA’s national reconciliation policy, taking minutes of meetings, copying information from reports into books to be held in the central archives, and collecting and recording neighbourhood reports.

After having worked for a year for the KhAD/WAD as a conscript, he had agreed to become a professional soldier. He had been appointed to the rank of Second Lieutenant (“Doham Bridman”). His activities had consisted mainly of administrative duties relating to the processing of information gathered by more senior officers about mujahideen commanders. He had worked for the KhAD/WAD until April 1992, when he left work after the communist Najibullah regime was overthrown by the mujahedin. Shortly after they had seized power, the mujahideen proclaimed an amnesty for persons who had worked for the KhAD/WAD. He had returned to work, had been given other tasks and had worked for the mujahideen until 18 or 19 January 1996, when the Taliban seized power in Herat. Until that moment, Herat had been governed by a commander who, like the applicant, was of Tajik origin. One day after the arrival of the Taliban in Herat in the second half of January 1996 and fearing for his life, the first applicant had fled to Turkmenistan from where he had travelled by air to the Netherlands.

On 12 September 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum claim then made by the first applicant, holding that he had failed to establish personal circumstances warranting a decision to grant him asylum. The mere fact that he belonged to the Tajik ethnic minority did not suffice in that respect. Although the Deputy Minister acknowledged that it was not unlikely that former KhAD staff members might experience problems from the new Government in Afghanistan, she found this not to be the case as regards the first applicant, as he had continued working for the Afghan authorities during the rule of the mujahideen from 1992 to 1996 without experiencing any problems. The Deputy Minister further considered it unlikely that the Taliban were or would become aware of the first applicant’s past professional activities for the former communist regime.

The Deputy Minister of Justice did, however, grant the first applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 10 March 1996, on the basis of the unabated bad situation (“onverminderd slechte situatie”) in Afghanistan.

On 11 October 1996, the first applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 11 December 1996, the Deputy Minister rejected the objection. Although the first applicant could have appealed to the Regional Court (rechtbank) of The Hague, he did not do so.

On 4 June 1998, the first applicant made a second asylum claim, which pursuant to article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) had to be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The new elements on which the first applicant based his fresh asylum request were his relationship with a woman in 1993 in Afghanistan out of which a child might have been born, his past work for the KhAD, and various documents, including a copy of a judgment handed down in October/November 1995 in which a Taliban Islamic Court in Herat - in proceedings held in absentia – had convicted the first applicant and seven others of conspiracy against the Taliban and sentenced them to death. For identification purposes, photographs of the convicts, including the first applicant, were appended to this judgment. The first applicant had only learned about the existence of this judgment on 26 November 1997, thus after his flight from Afghanistan, when his mother had sent him the judgment by mail from Iran, where she had gone for medical reasons. The first applicant did not know how or when his mother had obtained the judgment, but he assumed that it had been put up around his neighbourhood at some point in time, as local custom prescribed. The first applicant had also been informed, in a letter from his mother, that his brother had been captured and tortured in order to locate him. The first applicant further submitted on 11 September 1998 a detailed written account of his activities for the KhAD.

Meanwhile, in March 1999, the situation in Afghanistan not having sufficiently improved, the first applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years.

In her decision of 28 February 2001, after the first applicant had been interviewed again by the immigration authorities during which he stated inter alia that he had held the rank of First Lieutenant in the KhAD, the Deputy Minister rejected the first applicant’s second asylum claim and, considering that there were serious reasons for believing that the first applicant was guilty of acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (the 1951 Refugee Convention), applied this asylum exclusion clause.

Referring to an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015), the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture, murder, arbitrary executions and other human rights violations, and the climate of terror which it had spread throughout the whole of Afghan society, including the army.

Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD/WAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention. She noted that the KhAD/WAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, newly recruited officers were initially placed in departments of the KhAD/WAD specifically responsible for investigating “elements of State security”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations. In the light of the above, and noting that KhAD’s Directorate 5, for which the first applicant had worked in Herat, had two interrogation centres in Kabul, the first applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. The Deputy Minister dismissed the first applicant’s claim that he had only performed tasks of an administrative nature. The Deputy Minister found, on the basis of the first applicant’s statements, that he had actually been involved in activities of an operational nature: persuading enemies of the regime to cooperate by accompanying his superiors on field missions and taking minutes of meetings that had taken place between the KhAD and those enemies, namely the mujahideen. The Deputy Minister did not attach credence to the first applicant’s claim that he had been ignorant of the human rights violations committed by the KhAD/WAD. In this regard it was held that the first applicant had worked directly for the commanders in chief of his Directorate and had accompanied them on field missions. It was therefore highly implausible that he would have had no knowledge whatsoever of the human rights violations for which the KhAD/WAD was responsible. The Deputy Minister held that it should be concluded from the first applicant’s functions and work effected for the KhAD/WAD that he had been specifically implicated in the human rights violations committed by the KhAD/WAD.

The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof of personal commission by the first applicant of the alleged crimes; it sufficed that serious reasons existed to consider that the first applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. Accordingly, Article 1F of the 1951 Refugee Convention was held against the first applicant, and as a consequence his application for a residence permit for asylum purposes was denied.

The Deputy Minister also revoked the first applicant’s residence permit, which he had obtained by the Deputy Minister’s decision of 12 September 1996. It was held in this regard that the first applicant had not given a correct and full insight into his past activities, which, had he done so, would have stood in the way of issuing him the residence permit he had been granted.

The Deputy Minister further requested the Public Prosecutor’s Office (Openbaar Ministerie), by letter of 28 February 2001, to examine the possibilities of prosecuting the first applicant in the Netherlands for the crimes imputed to him on the basis of Article 1F of the 1951 Refugee Convention. The Deputy Minister sent another letter to the same effect on 12 February 2003. No further information about the follow-up to these letters has been submitted.

On 27 March 2001, the first applicant submitted an objection (bezwaar) to this decision. On 20 December 2002, the first applicant was heard on his objection before an official board of enquiry (ambtelijke commissie). On 12 February 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the objection. The Minister upheld the Deputy Minister’s previous decision and proceeded, in addition thereto, to an analysis of the first applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “knowing and personal participation test”.

As regards the “knowing” element, the Minister found, relying on the aforementioned official report of the Ministry of Foreign Affairs, that the first applicant had known or should have known about the criminal character of the KhAD/WAD. Basing himself on the Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the Minister held that, according to a letter of the Deputy Minister of Justice of 3 April 2000, knowing participation was in principle to be assumed in cases of persons who had worked for certain categories of organisations, to which the KhAD/WAD belonged. Having regard to the official report of 29 February 2000 (see paragraph 17 above) and other international materials, the Minister considered that the systematic and large-scale commission of human rights violations by KhAD/WAD under the PDPA’s rule was a fact of common knowledge and that therefore the first applicant could not have been ignorant of those acts. The first applicant’s argument that, given his low rank, he had had no knowledge of and could not be held responsible for human rights violations attributed to the KhAD/WAD, was thus not accepted by the Minister, who emphasised that the first applicant had declared that everyone had feared the regime and that he had successfully found an administrative post during his mandatory military service. The Minister found that, by admitting to the ubiquitous fear of the regime, the first applicant had admitted to having known of atrocities committed by that regime. As regards the first applicant’s personal participation in human rights violations attributed to KhAD, the Minister found that he had failed to establish that he had not committed the alleged crimes himself or that his conduct, by act or omission, had prevented those crimes from being committed. The Minister held, therefore, that the first applicant had personally participated in the crimes imputed to him.

Although the Minister considered that it could not be ruled out that the first applicant would run a risk of treatment contrary to Article 3 of the Convention if he were expelled to Afghanistan, it was nevertheless held that he was under an obligation to leave the Netherlands.

The Minister lastly found that the first applicant was not eligible for a residence permit under the three-year policy (this was a policy entitling asylum-seekers to a residence permit if their asylum requests had not been finally determined within three years, provided that there were no contraindications such as, for instance, a criminal record) as Article 1F of the 1951 Refugee Convention had been held against him, which constituted a contraindication.

The first applicant’s objection to the refusal to grant a residence permit under the three-year policy was rejected by the Minister on 17 April 2003.

Meanwhile, the second applicant had joined the first applicant in the Netherlands. She was granted a residence permit for the purpose of residing with her husband on 30 March 2000, thus at a time when the first applicant still held his provisional residence permit.

On 16 March 2001 the Deputy Minister of Justice also revoked the second applicant’s residence permit, as it was linked to the first applicant’s residence permit, which had been revoked. The second applicant submitted an objection to this decision. The Minister of Immigration and Integration rejected the second applicant’s objection on 12 February 2003. Meanwhile, on 8 November 2002, the second applicant had given birth to the third applicant.

Both the first and second applicants appealed to the Regional Court (rechtbank) of The Hague against the decisions taken against them, namely, as regards the first applicant, the Minister’s decisions of 12 February and 17 April 2003 and, as regards the second applicant, the Minister’s separate decision of 12 February 2003.

The Regional Court joined both applicants’ appeals and, in its judgment of 26 May 2005, agreed with the Minister’s decision and underlying reasoning to hold Article 1F of the 1951 Refugee Convention against the first applicant and the consequential decisions to revoke the residence permits held by the first and second applicants. However, as regards Article 3 of the Convention and with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, it held that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker was refused a residence permit but could not be expelled to his or her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed all decisions appealed against as regards both the first and second applicants, and remitted the case to the Minister in order for her to take a fresh decision.

On 12 October 2005, in accordance with the court’s judgment and after the first applicant, in view of the changed situation in Afghanistan, had been heard once more before an official board of enquiry on 24 August 2005, the Minister took a fresh decision on the objections submitted by the first and second applicants. She maintained her decisions that Article 1F should be held against the first applicant and that both applicants were accordingly ineligible for a residence permit.

As regards Article 3 of the Convention, the Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, certain categories of former officials – who were identified with human rights abuses committed during the communist regime, including KhAD officials – continued to be at risk in Afghanistan, not only from current power holders but more so from the population (families of victims) and the mujahideen, unless they enjoyed protection by virtue of good contacts with influential Islamic and political parties and/or tribes. To determine the level of risk, the official report enumerated a set of factors which would need to be balanced in each individual case: the extent to which the person in question was likely to be identified with communist ideology, his or her rank in the former regime, and the existence of any ties which family members might have with the former communist regime. The Minister noted that mere membership of the PDPA did not suffice to establish a real risk of being subjected to treatment in breach of Article 3 of the Convention.

The Minister went on to hold that the first applicant had not attracted the particular attention of any groups or individuals in the period prior to the coming to power of the Taliban. The Minister underlined in this regard that, after the fall of the PDPA regime, the first applicant had easily obtained a job in the local police headquarters for the mujahideen governor of Herat, Ismail Khan, who was currently the Minister for Energy in Afghanistan.

As regards the first applicant’s fear of the Taliban, the Minister held that the general situation in Afghanistan had improved since 2004 and that any Taliban insurgents were concentrated mostly in areas outside Herat. As to the first applicant’s fear of execution of the death sentence pronounced against him by the Taliban, the Minister held, basing herself on the most recent official report of the Netherlands Ministry of Foreign Affairs, that the population register, which had already been inaccurate, had not improved during Taliban rule due to illiteracy or a lack of interest in maintaining it. Furthermore, many courts of law had been destroyed during armed conflict. It was, therefore, not likely that the present authorities would be aware of the judgment against the first applicant. Moreover, judgments delivered under the Taliban rule were not executed without prior verification by a court of law of their compliance with current Afghan law. In this light the Minister did not attach much credence to the first applicant’s submissions that his mother had not been allowed to collect her possessions in Afghanistan due to her son’s conviction by the Taliban court. In addition, the Minister considered that it was unlikely that the first applicant would again be sentenced to death by Afghanistan’s present courts, in view of the fact that the conviction had been based on an alleged conspiracy against the Taliban. The first applicant’s submission that his being branded an infidel in the judgment could still have value before today’s Afghan courts was dismissed by the Minister, who found that, under the Taliban regime, the mere denunciation of the Taliban government in itself already constituted infidel status.

The Minister further noted, basing herself on a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on the first applicant on 19 September 2005, that in 1999 he had obtained an Afghan passport through Afghanistan’s diplomatic representation in the United Kingdom. Since the United Kingdom had not recognised the Taliban as Afghanistan’s lawful government, the Afghan embassy in the United Kingdom still represented the Government of President Burhanuddin Rabbani, who had been president from 1992 to 1996, thus until the capitulation of Kabul to the Taliban. The Minister took note of the fact that Mr Rabbani’s political party, the Jamiat-e-Islami, was currently well represented in the present Afghan Government. As the first applicant had successfully applied for a passport from an embassy represented by that party, the Minister held that he could not have come to Jamiat-e-Islami’s negative attention. Moreover, the passport had been issued more than three years after the death sentence had been handed down. In addition, as it did not appear that the first applicant had converted to another religion or had in other ways offended Islam, the Minister did not find it likely that he would be deemed an infidel again in today’s Afghanistan.

As regards the first applicant’s identification in present-day Afghanistan with communist ideology, the Minister’s finding that this did not pose him any problems during the mujahideen rule over the country led to the conclusion that he was unlikely to encounter such problems in the future. Furthermore, the first applicant had not made any mention, in the course of the interviews held with him, of any ties that members of his family may have had to the communist regime, nor of any problems he expected to encounter upon return as a result of any such ties.

The Minister therefore concluded that the first applicant had not demonstrated that he would be exposed to a real of being subjected to treatment contrary to Article 3 of the Convention if returned to Afghanistan.

The appeal by the first and second applicants was rejected on 18 August 2006 by the Regional Court of The Hague sitting in Arnhem. It concurred with the Minister on all points. No further appeal lay against this decision.

On 11 June 2008, after the first and second applicants’ separation and divorce, the second and third applicants submitted a fresh asylum request, which was granted on 10 March 2009, based on the position that the second applicant, as a single woman, and her child would find themselves in on returning to Afghanistan.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Jovo Grubić, is a Croatian national who was born in 1952 and lives in Golubić. He was represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

During 1991 and 1992 Serbian paramilitary forces gained control over about one-third of the territory of Croatia and proclaimed the “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The applicant’s mother, N.G., remained living in Golubić, a village in “Krajina”. At the beginning of August 1995 the Croatian authorities announced a military action with the aim of regaining control over “Krajina”. The action was codenamed “Storm”, and took place from 4 to 7 August 1995. Before that action, the vast majority of the population of “Krajina” fled Croatia, firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

On 23 May 2002 the applicant lodged a request with the Yugoslav Red Cross in Belgrade for a search for his mother. He alleged that his mother had disappeared on 5 August 1995 in Golubić, during the “Storm” military action.

In May 2002 the body of the applicant’s mother was exhumed in Golubić and transferred to the Zagreb Forensic Institute (Zavod za sudksu medicine u Zagrebu). On 19 November 2002 an autopsy was carried out which failed to establish the cause of death. On 6 December 2002 the applicant received the autopsy report and the body was given to the family. On an unspecified date it was buried in the Golubić graveyard.

On 27 December 2006 the applicant brought a civil action for damages against the State in the Knin Municipal Court (Općinski sud u Kninu). On 7 December 2007 the claim was dismissed on the ground that the circumstances of the death of his mother remained unknown. Thus the applicant had failed to prove either that his mother had been killed by Croatian army soldiers or that her death “resulted from an act of terror or violence aimed at gravely disturbing public order” and that her death was not war-related. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 30 August 2010, and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 April 2011.

The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court on 16 February 2012.

The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows:

“(1) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

(2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.”

“The Republic of Croatia shall be liable for damage referred to in section 1 of this Act ....”

“The obligation to compensate for damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.”

“The victim shall have the right to compensation [in the form of damages] of damage resulting from death, bodily injury or impairment of health.”

The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) governs the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows:

“The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.”

“The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.”

“(1) War-related damage within the meaning of this Act is, in particular:

– damage caused at the time when and on the territory where military actions were carried out with any means of war combat actions (bombardment, shelling, firing from machine-guns, explosions, mining, moving of troops and the like);

– damage resulting in direct and concrete military gain if, given the time and place where it occurred, it directly served military operations, and in particular:

(a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack;

(b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like);

(c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences;

– damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with war operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the war operations have been carried out).

(2) It is to be presumed that the damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and on the territory where military combat actions took place, but the injured party may prove the opposite.”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, S.S., is a British national, who was born in 1981 and lives in Nottingham. He was represented before the Court by Ms K. Mark of Chivers Solicitors, a lawyer practising in Bingley.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign & Commonwealth Office.

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

The applicant pleaded guilty to committing a sexual offence against a minor and on 12 May 2008 he was sentenced to three and a half years’ imprisonment. In addition, a Sex Offender Prevention Order (“SOPO”) was made against the applicant. The SOPO, which was to last for five years beginning on 12 May 2008, prohibited him from having contact with female minors under the age of 16.

The applicant and his partner have a son, D, who was born on 12 February 2006. In or around October 2008 the prison service informed the applicant that he could have no contact whatsoever with his son while he was in prison. The applicant appealed against this decision and on 8 November 2008 he was advised that the decision had been taken in the mistaken belief that the SOPO prohibited contact with both male and female minors. The matter was therefore referred to the Safeguarding Children Panel for review.

On 9 January 2009 the Panel informed the applicant that he had been placed on level 3 of the contact arrangements, which meant that he was only permitted contact with his son via written correspondence and telephone calls, both of which were to be monitored subject to a risk assessment being carried out and regularly reviewed. The applicant requested full reasons for this decision and on 3 February 2009 he was advised that the decision was made in consultation with his probation officer and Children’s Services. A further letter received by the applicant’s solicitor in January 2009 indicated that “visiting a prison environment would not be in the child’s best interests or have any positive impact on the child at this time”. The letter also indicated that the applicant’s partner shared this view. However, the applicant’s partner later denied that this was the case and on 11 February 2009 she gave a statement in support of the applicant’s application for his son to visit him in prison. In that statement she indicated that she was only concerned that the contact would be irregular and cause her son further disappointment.

The applicant renewed his application on 9 June 2009, but the Panel again concluded that “visiting the prison environment would not be in the child’s best interests at this time”.

The applicant issued judicial review proceedings on 24 August 2009 to challenge this decision on the grounds, inter alia, that it violated his rights under Article 8 of the Convention as it was disproportionate and/or had been made in compliance with an unpublished blanket policy that any person convicted of a sexual offence against minors would not be allowed to receive visits from any minors. On 7 October 2009 the applicant was refused permission to apply for judicial review on the grounds that the decision was not irrational in light of the authorities’ unanimous assessments and the child’s best interests had to take priority over the applicant’s right to respect for his family life.

The applicant renewed his application for permission but the application was refused on 11 November 2009.

The applicant submits that on the advice of his counsel he did not seek leave to appeal to the Court of Appeal because he was due to be automatically released on 12 February 2010, at the halfway point of his sentence, and the domestic courts would not entertain an academic application unless there was a strong public interest element.

Section 6(1) of the Human Right Act makes it unlawful for any public authority to act incompatibly with a Convention right. Section 8 enables any court which finds that a public authority has breached section 6(1) to grant such remedy, within its powers, as it considers appropriate.

The Prison Rules 1999, which were made by the Secretary of State for the Home Department pursuant to section 47(1) of the Prison Act 1952, provide that:

“Outside contacts

- (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.

Communications generally

- (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.

(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed -

does not interfere with the convention rights of any person; or

(i) is necessary on grounds specified in paragraph (3) below;

(ii) reliance on the grounds is compatible with the convention right to be interfered with; and

(iii) the restriction or condition is proportionate to what is sought to be achieved.

(3) The grounds referred to in paragraph (2) above are –

(a) the interests of national security;

(b) the prevention, detection, investigation or prosecution of crime;

(c) the interests of public safety;

(d) securing or maintaining prison security or good order and discipline in prison;

(e) the protection of health or morals;

(f) the protection of the reputation of others;

(g) maintaining the authority and impartiality of the judiciary; or

(h) the protection of the rights and freedoms of any person.

(4) Subject to paragraph (2) above, the Secretary of State may require that any visit, or class of visits, shall be held in facilities which include special features restricting or preventing physical contact between a prisoner and a visitor.

(5) Every visit to a prisoner shall take place within the sight of an officer or employee of the prison authorised for the purposes of this rule by the governor (in this rule referred to as an "authorised employee"), unless the Secretary of State otherwise directs, and for the purposes of this paragraph a visit to a prisoner shall be taken to take place within the sight of an officer or authorised employee if it can be seen by an officer or authorised employee by means of an overt closed circuit television system.

(6) Subject to rule 38, every visit to a prisoner shall take place within the hearing of an officer or authorised employee, unless the Secretary of State otherwise directs.

(7) The Secretary of State may give directions, either generally or in relation to any visit or class of visits, concerning the day and times when prisoners may be visited.

(8) In this rule –

(a) references to communications include references to communications during visits; (b) references to restrictions and conditions upon communications include references to restrictions and conditions in relation to the length, duration and frequency of communications; and

(c) references to convention rights are to the convention rights within the meaning of the Human Rights Act 1998."

Personal letters and visits

(2) Subject to paragraphs (2A) and (8), a convicted prisoner shall be entitled -

(a) to send and to receive a letter on his reception into a prison and thereafter once a week; and

(b) to receive a visit twice in every period of four weeks, but only once in every such period if the Secretary of State so directs.

(2A) A prisoner serving a sentence of imprisonment to which an intermittent custody order relates shall be entitled to receive a visit only where the governor considers that desirable having regard to the extent to which he has been unable to meet with his friends and family in the periods during which he has been temporarily released on licence.

(3) The governor may allow a prisoner an additional letter or visit as a privilege under rule 8 or where necessary for his welfare or that of his family.

(4) The governor may allow a prisoner entitled to a visit to send and to receive a letter instead.

(5) The governor may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement.

(6) The board of visitors may allow a prisoner an additional letter or visit in special circumstances, and may direct that a visit may extend beyond the normal duration.

(7) The Secretary of State may allow additional letters and visits in relation to any prisoner or class of prisoners.

(8) A prisoner shall not be entitled under this rule to receive a visit from:

(a) any person, whether or not a relative or friend, during any period of time that person is the subject of a prohibition imposed under rule 73; or

(b) any other person, other than a relative or friend, except with the leave of the Secretary of State.

(9) Any letter or visit under the succeeding provisions of these Rules shall not be counted as a letter or visit for the purposes of this rule.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

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 inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant, Mr Florin Moldovan, is a Romanian national, who was born in 1980 and is currently detained in Gherla Prison.

The Romanian Government (“the Government”) were represented by their Agents, Mr R.-H. Radu and Ms I. Cambrea, of the Ministry of Foreign Affairs.

The applicant is serving an eighteen-year prison sentence for murder. He has served his sentence in various Romanian prisons.

From 30 January 2006 to 5 March 2009 the applicant was detained in Arad Prison. As the originals of his legal correspondence had been retained by the prison authorities, the applicant lodged a request with the prison authorities demanding that all the documents be returned to him. As he did not receive a favourable response, he lodged a complaint with the judge responsible for the execution of sentences in Arad Prison (“the judge”) on the basis of the Execution of Sentences Act (“Law no. 275/2006”).

By an interlocutory judgment of 26 November 2008, the judge ruled that the Arad Prison authorities were in breach of national law and of Article 8 of the Convention, and that they must therefore provide the applicant with the retained legal correspondence. The judge noted that the practice of the prison administration based on the provisions of the unpublished Order of the Minister of Justice no. 2860/C/2000 (“the order”) was one of presenting the prisoners with their correspondence, allowing them to read it and thereafter filing it in the prisoners’ personal files to which the prison authorities had access. The judge quoted the relevant provisions of the order in the interlocutory judgment. He further found that the prison authorities’ practice of retaining prisoners’ legal correspondence was contrary to Law no. 275/2006 and that the above-mentioned order should have been considered as repealed by the entry into force of that law. The judge held in conclusion that by allowing prisoners access to their prison files or by providing them with photocopies of the documents, the prison authorities had not redressed the violation of the right to correspondence.

On 30 December 2008, following the interlocutory judgment of 26 November 2008, the Arad Prison authorities provided the applicant with the legal correspondence that he had received during his stay in that prison.

On 5 March 2009 the applicant was transferred to Timişoara Prison, where he was detained until 29 July 2010. His legal correspondence and documents that arrived during his stay in that prison continued to be retained in his prison file.

The applicant lodged a new complaint with the judge responsible for the execution of sentences in Timişoara Prison, requesting, inter alia, the provision of correspondence and legal documents addressed to him. By an interlocutory judgment of 3 June 2009 the judge determined that no new ruling on the application was necessary, as the applicant already had a judgment in his favour whereby the prison authorities were mandated to provide him with his correspondence.

According to the Government’s allegations, non-contradicted by the applicant, he received, while in Timişoara Prison, photocopies of various legal and medical documents.

The relevant parts of Law no. 275/2006, in force at the material time, read as follows:

“2. Correspondence is confidential and cannot be opened or retained, save for the limitations and the conditions provided for by law ...

Correspondence can be opened and retained only if there is reasonable suspicion that a crime has been committed. [The detainee] shall be informed in writing and immediately of this measure and the retained correspondence shall be stored in a special file kept by the prison authorities.

The opening and retaining of correspondence under paragraph 4 is possible only on the basis of a reasoned decision, delivered in writing by the judge responsible for the execution of sentences ...”

The Rules of Enforcement of Law no. 275/2006 were adopted by Governmental Decision no. 1897/2006. Under Article 67 of the Rules, each detainee has a personal file that contains documents and information on his legal and personal circumstances, as well as his behaviour during detention; the file is confidential and accessible to “persons and authorities authorised by law.”

The relevant provisions of the unpublished Order of the Ministry of Justice no. 2860/C/2000 read as follows:

“Excerpts or copies of the sentencing judgments, interlocutory judgments, arrest warrants or warrants delivered in view of the execution of a sentence, as well as any other document received from the prosecutors’ offices or the courts relating to the detainees’ legal situation, shall be provided to the latter for reading and signature.”

“Upon receipt of summonses or any other criminal procedure act that requires the detainee’s signature ... the prison staff shall proceed as follows:

a) provide the detainee with the act for reading, only after the act has been recorded in the detention file and saved electronically;

b) ask the detainee to sign an acknowledgement and the act, with due mention of the date ...;

c) send the acknowledgement to the authority that delivered the act;

d) if the detainee’s presence before the court or the authority in charge of the criminal proceedings is required, on the basis of the summons, the data shall be recorded for presentation to the courts ...”

“Upon receipt, procedure acts or any other act that does not require the detainee’s signed acknowledgement shall be recorded in the detention file, saved electronically, communicated to the detainee with due mention of the date and the detainee’s signature, and stored (“se clasează”) in the detainee’s file”.

Order of the Ministry of Justice no. 2860/C/2000 was repealed by Order no. 432/C/2010 but maintained the same provisions relating to prisoners’ legal correspondence. The new order is public and entered into force on 11 March 2010.

A Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of legal advice in prison that may be relevant in the context of the present case.

Rule 23 reads:

“1. All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners.

Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.

A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.

Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev

In December 1996 the first applicant concluded a three-year military service contract with the Ministry of Defence.

In March 1999 its housing commission allocated him a studio in a residence hall for students and employees of the National Defence Academy of Ukraine (“the Defence Academy”), located on Z. Street in Kyiv, and the applicants moved into this accommodation.

In December 1999 the first applicant concluded another three-year military service contract.

On an unspecified date in 2001 the applicants’ daughter was born.

In December 2001 the first applicant rescinded his contract with the Ministry of Defence and resigned from military service, citing family circumstances.

On 4 April 2002 he was employed as a salesman by G., a private company.

On an unspecified date and for unknown reasons the first applicant registered himself as a temporary resident at an address on P. Street in Kyiv. However, according to the applicants’ submissions, the family continued to live in and pay charges for the Z. Street studio, which they had renovated and modernised at their own expense.

In October 2002 the Defence Academy and Office of the Prosecutor General instituted proceedings in the Shevchenkivskyy District Court in Kyiv, seeking to evict the applicants’ family from the Z. Street accommodation. Relying on Article 132 paragraph 1 of the Housing Code (see paragraph 35 below), the plaintiffs argued that because the first applicant had resigned from military service, he and his family were obliged to vacate the accommodation, which had been provided to them on a temporary basis in connection with the first applicant’s military service.

During the trial, the applicants alleged that the first applicant had been “cantoned” or quartered in the disputed accommodation as a military serviceman, a fact which triggered a special duty on the part of the State to keep providing him with housing upon his resignation from the armed forces. Article 132 paragraph 1 of the Housing Code, which concerned accommodation for seasonal and temporary employees, did not apply in their case. They also noted that the first applicant had a dependent wife and young child, and that the family had no other accommodation in Kyiv.

On 11 November 2003, after hearing oral submissions of all interested parties and having examined the written evidence presented, the court ruled for the plaintiffs. It found that the disputed accommodation had been provided to the applicants on a temporary basis, as a privilege in connection with the first applicant’s military service. Since it had been his decision to terminate the contract early, there was no right to keep the accommodation or any duty of the State to provide other accommodation under the applicable law. Article 132 paragraph 1 of the Housing Code was therefore applicable and the applicants’ family was legally obliged to vacate the Z. Street accommodation.

On 9 December 2003 the first applicant lodged an appeal with the Kyiv City Court of Appeal (“the Court of Appeal”). No copy has been provided to the Court.

On 29 January 2004 the Court of Appeal upheld the judgment of 11 November 2003, following a hearing attended by representatives of the Defence Academy but not by the first applicant. The court held, in particular, that his service contract had contained no clauses obliging the Ministry to provide him with housing during his service. The fact that he had been provided with temporary accommodation at the Ministry’s discretion did not mean that the State had a duty to accommodate him or his family after termination of the contract.

According to the applicants, the Court of Appeal did not notify them of the date and time of the hearing of 29 January 2004. They further stated that on two occasions – in April 2004 and sometime in 2005 (the applicants could not recall the exact dates) – the first applicant had visited the Court to enquire about the status of the proceedings, but did not receive any meaningful response.

According to the applicants, on 28 April 2004 they were evicted from the Z. Street accommodation.

On 7 May 2004 the Official Gazette of Ukraine (Офіційний вісник України) published the new Code of Civil Procedure (hereinafter “the 2004 Code”), which was adopted on 18 March 2004 and entered into force on 1 September 2005.

On 12 August and 26 September 2005 the first applicant lodged written complaints with the President of the Court of Appeal concerning the delay in examining his appeal.

On 3 October 2005 the Deputy President of the Court of Appeal informed him that his case had already been decided and that the judgment of 11 November 2003 had been upheld.

On 16 and 24 November 2005 the first applicant wrote to the Court of Appeal with a request to be provided with a copy of the decision taken on 29 January 2004.

On 29 November 2005 the applicants received a copy of that decision.

On 13 December 2005 the applicants lodged a request with the Supreme Court of Ukraine for leave to appeal in cassation out of time against the rulings of 11 November 2003 and 29 January 2004, on the grounds that they had not been notified of the latter ruling until 29 November 2005. They argued, in particular, that the Court of Appeal had failed, in breach of the requirements of the applicable law, to notify them of the date and time of the appeal hearing and the decision taken in their case. They had hence been deprived of their statutory right to attend the appeal hearing and to lodge a cassation appeal within the statutory time-limit. They also argued that the lower courts had erred in their assessment of the facts and application of the law in their case. In particular, since the first applicant had resigned from military service in connection with family circumstances, his situation fell within the ambit of paragraph 3, not paragraph 1 of Article 132 of the Housing Code. Accordingly, his family could only be evicted from the accommodation reserved for military personnel if they had been provided with other comparable accommodation. The applicants also relied on section 12 of the Social Protection of Military Servicemen Act (see paragraph 36 below) as the basis for their entitlement to permanent accommodation.

On 20 December 2005 the Supreme Court rejected the applicants’ request for leave to appeal out of time, noting that, in accordance with Article 325 § 2 of the new Code of Civil Procedure of 2004 such leave could only be granted within one year of pronouncement of the decision subject to appeal (see paragraph 34 below).


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Andrey Anatolyevich Rymanov, is a Russian national who was born in 1966 and lived in Podolsk before his arrest. He was represented before the Court by Mr Maksim Rachkovskiy, a lawyer with the Centre of Assistance to International Protection in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyshkin, Representative of the Russian Federation to the European Court of Human Rights.

The facts of the case may be summarised as follows.

In the summer of 2000, the organised crime division of Moscow’s police department was investigating the activities of a criminal gang implicated in a series of armed robberies in Moscow and the Moscow Region. Police officer A. was in charge of the investigation. He received certain information concerning the gang’s planned targets and its leader, St., through a police informant, S., who had been collaborating with the police since 1996. A. investigated the information and confirmed that St.’s gang was implicated in an armed attack on the manager of an enterprise in the Moscow Region and his driver.

During the same period of time, St. came into contact with the applicant, who had been a fellow prisoner with him in the past. St. told the applicant that after he had been released from prison, he had joined a debtcollection business that had been under the informal protection of the police. During their conversation, St. – who was not a police officer – showed a police badge bearing his photo to the applicant. St. also introduced the applicant to S., who was posing as a high-ranking police officer. S. told the applicant that “while you [that is to say the applicant] were serving your sentence, life has changed, and it has become possible and necessary “to do business” under the unofficial protection of the police.”

In the autumn of 2000 S. informed A. that St. had contacted him with a view to his identifying potential targets for armed robbery. At around that time A.’s subordinate, G., also had an encounter with an informal acquaintance, Ch. Either after being prompted by G. or of his own volition, Ch. confided to G. that he wanted to rob the office of the company where he worked (“company M.”) because it allegedly owed him salary in arrears.

G. reported to A. that company M. had been targeted for an armed robbery. After this information was received, the commanding police officers decided to infiltrate G. into the gang and A. requested S. to transmit that information to St. and to recruit a team of would-be robbers.

On 5 November 2000, acting on instructions from A., S. recruited St., a long-term acquaintance of his, to rob company M. St. was not aware of S.’s collaboration with the police.

On 1 December 2000 G., Ch., S. and St. met to discuss the details of the planned robbery. Their meeting took place in a restaurant and it was videotaped and audiotaped by the police. During the meeting, Ch. described the plan for the robbery, drew a plan of company M’s office and explained where the cash was stored.

On 6 December 2000 St. met with the applicant and asked him “to help collect a debt” from a company in Moscow. He said that the manager of that company had issued a promissory note for money he had received to finance the development of his business and that he had not yet returned the money. St. told the applicant that only the applicant’s presence was needed and that he would pose, together with several other individuals, as creditors of company M. He would be paid 1,500 United States dollars (USD) because the debt was high and because there existed a risk of a conflict with racketeers protecting the company. The applicant agreed and the two planned to meet the next day to carry out the plan.

On 7 December 2000 St. and the applicant met with R. and As., who had been recruited by either S. or St., and they all arrived at company M.’s office. After they had arrived S. supplied the group with weapons given to him by G. and they removed the licence plates from their getaway vehicle. Soon afterwards Ch. opened the door to the company’s office from the inside and let the applicant, St., R. and As. in. Once inside, they attacked and injured company employees, taking cash and other valuable items from the victims. After the attack, the group left the crime scene in the getaway vehicle. They met G. and S. and divided the takings.

Shortly thereafter, the applicant was arrested and charged with armed robbery.

On 28 March 2003 the Moscow City Court examined the applicant’s case. The videotapes and audiotapes of the meeting between G., Ch., S. and St. on 1 December 2000 were played at the hearing. Ch. confirmed that the tapes were genuine. The City Court further dismissed the applicant’s argument that he had only intended to help recover a debt and that he had been incited to commit a crime. The court held that the applicant, St., R., and As. had acted in a well-organised, deliberate and coordinated manner during the robbery, which constituted evidence of a criminal conspiracy between them. It did not find any circumstances indicating that the applicant had been incited by the police to commit a criminal act. Since the applicant had been convicted on two counts of aggravated armed robbery in the past, the City Court convicted the applicant, as an habitual offender, of aggravated armed robbery, as well as of the aggravated unlawful transfer, transport and carrying of firearms, and sentenced him to eight years’ imprisonment and confiscation of property. St., R., and As. were convicted in the same proceedings.

The Moscow City Court also convicted A. and G. of abuse of power during the undercover operation. The court found, in particular, that at first the infiltration of G. into the gang had been undertaken in accordance with the applicable law on undercover activities. However, the court established that A. and G. had then in essence authorised a robbery with the use of weapons, thereby putting at risk the lives and well-being of both company M’s employees and the police officers who had participated in the operation.

On 6 November 2003 the Supreme Court of the Russian Federation upheld the judgment.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicants, Mr Osman Ergün and Ms Havva Ergün, are Turkish nationals, who were born in 1956 and 1965 respectively and live in Ankara. They were represented before the Court by Mr K. Gül, a lawyer practising in Samsun.

On 7 September 2000 the applicants’ son, A.E., joined the army to perform his compulsory military service. The medical report drawn up by the Gülhane Military Academy prior to his conscription stated that there were no contraindications to his conscription. However, he was known to be suffering from a severe dermatological disease since 1996.

On 10 October 2000 the applicants’ son’s disease deteriorated, and he was transferred to the Ege University Hospital. He died on 19 January 2001.

On 26 September 2001 the applicants initiated proceedings before the Supreme Military Administrative Court and requested pecuniary and non-pecuniary compensation. In their petition, the applicants each claimed 1,000 Turkish Liras (TRY) in respect of pecuniary damages. For nonpecuniary damages, they requested TRY 150,000 for the mother and TRY 125,000 for the father.

On 3 April 2002 the Supreme Military Administrative Court rejected the case on the ground that it lacked jurisdiction.

Following a rectification request, the Supreme Military Administrative Court decided to examine the merits of the case in a decision dated 2 September 2002.

Having held a public hearing on 13 November 2002 and taken into account an expert report dated 19 March 2003, the Supreme Military Administrative Court delivered its judgment on 5 April 2005. It ruled in favour of the applicants and awarded each of them TRY 1,000 in respect of pecuniary damage and TRY 2,450 in respect of non-pecuniary damage.

On 11 July 2005 the applicants initiated proceedings and asked for additional compensation in respect of their pecuniary damage, arguing that their claim for additional compensation had not been taken into account in the judgment of the Supreme Military Administrative Court dated 5 April 2005.

On 21 July 2005 the Supreme Military Administrative Court rejected the case for additional compensation in respect of pecuniary damages on the basis of the failure to bring the claim within the statutory time-limit. The court considered the applicants’ claim to be an application to have the initial amount amended (ıslah) and dismissed it for being out of time.

On 16 November 2005 the Supreme Military Administrative Court rejected the rectification request of the applicants.

In the meantime, on 18 November 2002 the applicants had applied to the General Directorate of Pension Funds. They requested a pension, claiming that their son had died during his military service and because of his death the administration was required to pay a pension under domestic law.

On 21 January 2003 the General Directorate of Pension Funds rejected the applicants’ request for a pension on the ground that the death of the applicants’ son was not the consequence of his military service.

On 6 January 2004 the applicants lodged an application with the Supreme Military Administrative Court with a request for a pension.

On 27 January 2005 the Supreme Military Administrative Court rejected the applicants’ request on the ground that the applicants’ son had died due to an illness he had had before joining the army, and it had a genetic basis. Also, the applicants had failed to prove that they fulfilled the requirements for a pension since no document showing that the applicants were dependent or disabled had been provided. Thus, the Supreme Military Administrative Court found that the applicants’ request did not have any legal ground and rejected the application.